Peter A Clarke

The New Zealand Broadcast Authority has upheld a privacy complaint against Television New Zealand Ltd in PG and Television New Zealand Ltd – 2014-090.

FACTS

During an episode of Water Patrol, a reality TV series following the work of the New Zealand Police,  footage of the complainant (PG) in his boat was shown . The footage formed part of a segment where police officers tested the reaction of persons  being randomly breath tested. PG was shown in an out-of-focus wide shot sitting on the deck of his boat. He was not wearing any pants. As he stood up to engage with the police, wrapping a towel around his waist with the police officer turning to the camera and commenting ‘very unusual’. PG declined to undergo an optional breath test [1] .

PG complained that the broadcast, and particularly the footage of him not wearing any pants, breached his right to privacy and solitude. He objected to being filmed and was not asked for his consent to the filming or broadcast[2]

The programme was broadcast on TV ONE on 15 July 2014. [4]

DECISION

The Privacy Standard 3 states that broadcasters should maintain standards consistent with the privacy of the individual. [5] Privacy principle 3 states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion, where the intrusion would be highly offensive to an objective reasonable person [8].

As PG was first shown in a wide shot then shown close up with his face clearly visible.  The Authority were satisfied that the complainant was identifiable [7].

PG argued that his right to privacy and solitude was breached. He spent much of his time on his boat and ‘sometimes [does] not wear clothes when [he travels] in seclusion around the Sounds’. PG maintained that he objected to being filmed and was not asked for his consent to film or broadcast the footage. He maintained that there was no public interest in the footage and it was purely used for ‘entertainment value’ at his expense. [9]

TVNZ argued that:

• PG did not have an interest in solitude or seclusion on the top deck of his boat and did not seek privacy from the passing police vessel by retreating into the cabin.  As he was filmed in a public place anyone he passed would have seen him in the same way as he was filmed. Accordingly he did not have a reasonable expectation of seclusion.
• the filming was not prying as PG knew he was being filmed and the cameras were not hidden. Even if, as TVNZ conceded, PG had no choice but to engage with the police, this did not make him ‘particularly vulnerable’ [10].

The Authority found the filming amounted to an intentional intrusion, in the nature of prying, with PG’s interest in solitude and seclusion, the intrusion was highly offensive.  Any alleged public interest in the footage did not outweigh the complainant’s privacy interests. The factors which have contributed to this finding are:

• While the Sounds may be considered a public waterway, the complainant obviously made efforts to be in a secluded area. PG’s boat appeared to be the only one in this part of the Sounds during the filming; there were no boats visible or near him in the footage.
• The police clearly told PG to turn off his boat motor and stop. As most reasonable individuals would, PG understandably did not see that he had any choice, and complied.
• No one would have seen PG’s state of undress below the boat deck if he had not obeyed the instructions of police and then stood up to talk to them.
• The highlighting of, and commenting on, PG’s state of undress was used to inject humour into the segment, at his expense.
• PG twice asked what the camera was for. The police told him that it was for ‘a survey’ and said the crew was ‘just filming just to see what’s happening around the Sounds and promoting boat safety’. PG was not informed that he was being filmed for a programme which would be shown on national television.
• The complainant maintains he objected to being filmed. At one point in the footage PG said ‘I object’, although it was not clear whether he was objecting to the filming, to the police’s questions, or both.

Reasonable expectation of solitude and seclusion?

The Authority defined solitude as ‘the state of being alone’ while seclusion as a ‘state of screening or shutting off from outside access or public view’, or a ‘zone of sensory or physical privacy’, which ‘extends to a situation where the complainant is accompanied [14]

 Under Privacy principle 3b an individual’s interest in solitude or seclusion does not prohibit filming that individual in a public place.  TVNZ relied on this exemption on the basis that the Marlborough Sounds is a public waterway [15] . The Authority relied on High Court authority that

‘There is no bright line which can be drawn between what is private and what is not,’

The Authority noted that in the past that ‘potential exposure to passers-by at the time that the events occurred is not enough to make them public for all purposes’ [16].

The Authority noted that the boat was PG’s private property and while a person will not always have an interest in seclusion in their boat located in a public waterway PG went to great lengths to achieve privacy and isolation. His boat was secluded at the time of filming as no other boats were visible anywhere in proximity to him, even in wide shots. The Authority found that a reasonable expectation of solitude and seclusion did exist and the ‘public place exemption’ did not apply [17].

Intentional interference with the complainant’s interest in solitude and seclusion, in the nature of prying?

The Authority found it significant that PG stated he objected to the filming and  was not adequately informed about the purpose of the filming. The police vessel which approached PG’s boat from behind, caught him off-guard  and put PG in a position where he said he felt compelled to stand up and face the approaching vessel, and to engage with the police officer [19]. PG did not feel he could ignore the police and retreat inside the boat’s cabin, as suggested by TVNZ [20].

The Authority found that:

• it was not have immediately obvious to passers-by that PG was not wearing any pants because it was only when he stood up, prompted by the approaching police vessel, that his lower half was visible over the boat structure [21].
• the camera crew’s actions was prying, being  ‘inquiring impertinently into the affairs of another person’, or ‘interfering with something a person is entitled to keep private’ and stated, at [22]:

The complainant was sitting on the deck of his boat in an otherwise empty part of the Sounds. He was entitled to go about his private business as he pleased, away from the glare of publicity. An individual’s right to privacy must include the right not to take part in programmes broadcast on national television, or at the very least to be anonymised (unless there is an overriding public interest which justifies their identification, which we discuss further below).

Intrusion highly offensive to an objective reasonable person?

The Authority was satisfied that the intrusion into the complainant’s interest in solitude and seclusion would be considered highly offensive to an objective reasonable person based on the test that the intrusion would be highly offensive to an objective reasonable person ‘in the shoes’ of the individual whose privacy has allegedly been breached [23].

 The Authority reviewed the circumstances of filming in detail noting:

• PG objected to the filming and asked more than once why the camera was filming
• PG was subsequently misled about the purpose of the filming
• while PG’s conversation with the police and his behaviour were relatively innocuous, the highlighting of, and commenting on, his state of undress was used to inject humour at PG’s expense [24].

Disclosure justified in the public interest?

Privacy principle 8 states that disclosing a matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint [25]. While the Authority recognised that there was public interest in the programme as a whole and in the message conveyed by the segment the footage of PG did not specifically address these issues and there was no public interest in showing PG’s image in a way that identified him. PG’s image was used to inject humour into the segment and that diminished the public interest and did not warrant interfering with PG’s privacy interests.

The Authority made the following orders:

Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000 within one month of the date of this decision, by way of compensation for the breach of his privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

ISSUE

The Authority undertook a very thorough analysis of the issues regarding privacy within a public space, which is not oxymoronic.  The facts in this case highlight that there is a sphere of privacy even in thoroughfares and open spaces.  That is particularly the case when someone takes steps to maintain solitude.  TVNZ’s arguments were predictable and unsubtle.  They effectively relied on the public interest in the programme, which is uncontested, as giving the crew broad licence as to how they interacted with third parties, which is clearly contestable.  Otherwise worthy activities can be used and abused.  The second point TVNZ made was that because the activity took place on a publicly accessible waterway there was a limited expectation of privacy.  As a bald proposition that is not correct.

The award of damages of $1,000 is ridiculously small.