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TVNZ and Hood - Sex and Lies in Cambodia - Documentary - Privacy, fairness - Upheld. - 2007-028 [2007] NZBSA 59 (14 August 2007)

Members
Joanne Morris, Chair
Tapu Misa
Diane Musgrave
Paul France

Broadcast

[1] A documentary entitled Sex and Lies in Cambodia was broadcast on TV One at 9.30pm 18 December 2006. It examined the case of a New Zealand man, Graham Cleghorn, who was serving a 20-year sentence in a Phnom Penh prison for the rape of five teenage girls.

[2] The documentary featured an interview with a Swiss man, RK, who had been accused of rape and paedophilia one year before Mr Cleghorn, but whose case had been thrown out due to a lack of evidence. Stating that RK was “reluctant to speak on camera”, the reporter said that they had filmed him with a hidden camera “in the public interest”.

[3] RK was seen giving his view that a particular Cambodian judge was “a big crook” who accepted bribes and blackmailed people who were accused of crimes to force them to sell their land. The reporter stated that everything RK said was “already on the public record in newspapers and on Inquisition 21st Century, a controversial website that questions state control of sexual behaviour”.

Complaint

[4] Dr Lynley Hood made a formal complaint about the programme to Television New Zealand Ltd, the broadcaster, alleging that RK’s privacy was breached by the broadcast of hidden camera footage, and that it was unfair to him. She contended that, in addition to broadcasting standards, the Authority should consider the journalist’s duty to protect confidential sources and the general principle that broadcasters should limit harm to vulnerable people in the course of their work.

[5] Dr Hood said that RK had been assured, both verbally and in writing, that he would not be filmed or quoted and that his comments were “off the record”. She provided copies of emails between RK and the reporter which confirmed this agreement, as the reporter stated “of course that is our understanding…we would only report what is on the record”.

[6] In Dr Hood’s view, RK had cooperated fully and openly with the documentary team, but his assistance had been exploited by the reporter who, she alleged, had misled him with assurances of confidentiality. The complainant contended that the broadcaster should have known that broadcasting the footage of RK could put his safety at risk in “the notoriously corrupt and dangerous country of Cambodia”.

[7] Referring to the reporter’s statement that “everything [RK] says is already on the public record”, Dr Hood stated that, if this were true, it was a good reason for not breaching his privacy because the information was available from other sources. However, she said, the claim was not true. Images of RK, his home and his car, and the information that he held all of Mr Cleghorn’s personal documents and was heavily involved in his case were all private, Dr Hood said.

Standards

[8] TVNZ assessed the complaint under Standards 3 and 6 and guidelines 6b and 6c of the Free-to-Air Television Code of Broadcasting Practice, and the Authority’s privacy principles 3 and 8. These provide:

Broadcaster's Response to the Complainant

[9] TVNZ conceded that the hidden camera filming showed a disregard for RK’s interest in solitude or seclusion, noting that he was filmed inside his car and home without his knowledge. These were both places where he would have a reasonable expectation of privacy, it wrote.

[10] However, TVNZ maintained that the intrusion was not “highly offensive to an objective, reasonable person”. In TVNZ’s view, RK had not been filmed doing anything criminal, immoral, illegal, personal, or anything else that would bring him into disrepute in the eyes of a reasonable person. It wrote:

[11] Even if the intrusion was offensive, the broadcaster argued, the disclosure was in the public interest and the entire documentary focused on matters of public interest. Referring to the Authority’s Decision No. 2005-129 in which it gave examples of matters of public interest, TVNZ noted that the documentary had dealt with criminal matters, issues of public safety, matters of public administration and organisations in Cambodia, and it had exposed misleading claims.

[12] In the broadcaster’s view, in this context it was important for viewers to see one of the “key players” for themselves. The information provided by RK conflicted with claims made by other people in the programme, it said, and in order for viewers to assess his credibility they needed to be able to see him. TVNZ also noted that Dr Hood and Graham Cleghorn’s lawyer, Greg King, had both commented in the programme that they relied on the information provided by RK and he was instrumental in Mr Cleghorn’s case. It maintained that there was no breach of Standard 3 (privacy).

[13] Looking at Standard 6 (fairness) and guideline 6c, the broadcaster argued that the misrepresentation involved in filming RK was justified “by the seriousness of the allegations in the story and the subject matter – all of it demonstrably in the public interest”. Since he had declined to appear on camera, TVNZ said, images of RK making claims about the other players which were already in the public arena, could only be gathered by covert means.

[14] Acknowledging Dr Hood’s concerns for RK’s safety, TVNZ wrote:

[15] Taking all of this into account, the broadcaster concluded that Standard 6 was not breached.

Referral to the Authority

[16] Dissatisfied with TVNZ’s decision, Dr Hood referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. Referring to TVNZ’s assertion that RK was a “key player” in the programme, Dr Hood stated that in reality he was a supporting player and “an administrator rather than a purveyor of controversial opinions”. She reiterated her view that, because of the sensitivities surrounding the Cleghorn case, RK had good reason to keep private his level of involvement in the case, including the fact that he held nearly all Mr Cleghorn’s personal documents.

[17] Looking at privacy principle 3, and TVNZ’s argument that the intrusion into RK’s interest in solitude or seclusion was not offensive, Dr Hood wrote:
I am confident that any objective, reasonable person would be highly offended by TVNZ’s view that it is okay to enter a man’s home and secretly film him for television provided the film does not show him doing anything embarrassing or improper. No matter what they are doing, objective reasonable people do not take kindly to being secretly filmed for television in the privacy of their own homes.

[18] Dr Hood argued that the offensiveness was compounded by the fact that RK had insisted, and the reporter had agreed, that he would only contribute to the documentary “off the record”. He welcomed the reporter into his home on that basis, she said, and gave the reporter full access to his material on the Cleghorn case. The complainant said she had no doubt that any reasonable person would find the reporter’s conduct highly offensive.

[19] With respect to the public interest, Dr Hood said that TVNZ’s attempt to link the public interest guidelines in Decision No. 2005-129 to the programme as a whole was contrary to the Authority’s findings in that case. The covertly obtained footage of RK, she submitted, could not be justified on public interest grounds.

[20] Looking at Standard 6 (fairness), Dr Hood repeated her assertion that RK was not central to the case, and therefore covertly filming him was not justified.

Broadcaster’s Response to the Authority

[21] TVNZ maintained that RK was central to the documentary about alleged bribery and corruption and child sex, and disagreed that he was merely “an administrator”. He had clearly made controversial claims, it wrote, about corruption and probable attempts at land grabs. If he was so unimportant, TVNZ contended, neither Dr Hood nor Greg King would have bothered to mention him or use him as a source of information.

[22] TVNZ argued that the covertly obtained footage of RK was in the public interest in the following ways:

• RK accused Cambodian officials of corruption and bribery, and whether justice was being served for a New Zealander imprisoned overseas was a matter of public interest
• RK’s assertions about the Cambodian judicial system concerned the safety of New Zealanders travelling to Cambodia
• RK’s comments were in conflict with those made by other people in the documentary, so clearly someone was making misleading claims. The pictures and sound of RK enabled viewers to assess the strength of his arguments against others.

Complainant’s Final Comment

[23] Responding to TVNZ’s point that Dr Hood would not have mentioned RK if he was not an important player in the story, the complainant stated that she had mentioned RK because the reporter had asked her about him. Furthermore, it was clear from Greg King’s comments that he valued RK for his practical assistance in Cambodia, not for his opinions.

[26] Dr Hood maintained that, when all relevant factors were taken into account, any objective, reasonable person would have found the broadcaster’s invasion of RK’s privacy highly offensive. She also reiterated her point that the public interest defence only related to the hidden camera footage, not whether the programme as a whole raised matters of public interest.

[25] Looking at the hidden camera footage, the complainant argued that RK’s comments had “added nothing new”. The same claims of bribery and corruption were made by numerous other people in the programme, she noted. Further, seeing RK give his opinions would have left viewers none the wiser as to whether justice was being served for Mr Cleghorn, or whether the Cambodian justice system really was corrupt.

Further information from the Broadcaster

[26] TVNZ stated that it wished to emphasise three points in response to Dr Hood’s latest correspondence. First, it noted that the programme did not portray RK “in a way that made him look sleazy” and it showed nothing which might have brought him into disrepute. Second, TVNZ argued, Dr Hood had not produced any evidence to suggest that RK had been harmed by the broadcast. Third, the broadcaster wrote that the documentary maker had researched the programme in Cambodia by interviewing many people, and had not had any prior view before visiting Cambodia. The programme had presented the facts and the personalities and it had been left to the viewing public to make up their minds, it contended.

Authority's Determination

[27] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

Privacy principle 3 – interference with solitude or seclusion

[28] The complainant’s concern about privacy relates to the use of a hidden camera to film RK inside his home and his car. Accordingly, the Authority considers that privacy principle 3 is relevant on this occasion.

[29] TVNZ conceded that RK had a reasonable expectation of privacy inside his home and his car which amounted to an interest in solitude or seclusion for the purposes of privacy principle 3. The Authority agrees.

[30] The next element of privacy principle 3 is whether the broadcaster’s actions amounted to an intentional interference with RK’s interest in solitude and seclusion, in the nature of prying. The Authority has previously determined privacy complaints about the use of hidden camera footage, and it has found that broadcasting footage taken with a hidden camera will usually amount to an intentional interference “in the nature of prying” (see, for example, Decision No. 2000-108-113 and Decision No. 2006-014). On this occasion, the Authority concludes that the hidden camera footage was an intentional interference with RK’s interest in solitude and seclusion in the nature of prying.

[31] Turning to consider whether the intrusion would have been highly offensive to the objective reasonable person, the Authority notes the verbal and written agreement between RK and the reporter that he would not be filmed and that his comments would remain off the record. Further, the Authority observes that RK was filmed inside his home and his vehicle, which are places where he had a reasonable expectation of privacy. The Authority is of the view that the objective reasonable person would find highly offensive the broadcast of hidden camera footage taken in these circumstances.

[32] Accordingly, the Authority concludes that privacy principle 3 was breached.

Privacy principle 8 – the public interest

[33] TVNZ has a defence to the privacy complaint if the disclosure was in the “public interest”. The Authority has previously held that the public interest defence applies only where the hidden camera footage was in the public interest. It does not apply merely because the story as a whole was in the public interest (see for example Decision No. 2006-014). A matter that is in the public interest is defined as one of legitimate public concern, as opposed to being a matter of general interest or curiosity to the public ¹

[34] On this occasion, the hidden camera footage showed RK:

• stating that he was “very deep” into Mr Cleghorn’s case and working on it daily
• commenting that a Cambodian judge was “a bastard” and would accept bribes and blackmail people for their land
• telling the reporter that the judge had initially gone to Mr Cleghorn’s house on the pretext of finding a gun, and was “fishing around”.

[35] In its correspondence, TVNZ admitted that RK’s views on the Cleghorn case were “widely known”, and the reporter stated in the item that everything RK said was “already on the public record”. In the Authority’s view, the hidden camera footage of RK did not contain any information which was of legitimate public concern. Even if the information was not already in the public arena, the Authority finds that RK’s personal opinions about the Cambodian justice system and the Cleghorn case were not of such importance to justify broadcasting the hidden camera footage in breach of his privacy.

[36] As there was no public interest in broadcasting the hidden camera footage, the Authority finds that Standard 3 (privacy) was breached. It upholds this part of the complaint.

Standard 6 (fairness)

[37] Having found that the broadcast of the hidden camera footage amounted to a breach of RK’s privacy, the Authority also concludes that the broadcaster treated RK unfairly. In assessing the fairness complaint, the Authority has had regard to guideline 6c, which states:

[38] In this case, the Authority finds that filming RK with a hidden camera amounted to “misrepresentation or deception” for the purposes of guideline 6c. As discussed above in paragraph [35], the Authority considers that there was no public interest in broadcasting the hidden camera footage of RK. His comments were his personal opinions about the Cambodian justice system and the Cleghorn case, and they added little value to the documentary or to viewers’ understanding of the case.

[39] The Authority also considers that the unfairness to RK was exacerbated by the indefensible conduct of the programme’s director in breaking a verbal and written undertaking that RK would not be filmed or quoted in the programme. While the Authority considers that the programme would have been unfair to RK even without this added factor, it is of the view that the reporter’s actions aggravated the breach of Standard 6.

Bill of Rights

[40] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast of Sex and Lies in Cambodia by Television New Zealand Ltd on 18 December 2006 breached Standard s 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[41] Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[42] Dr Hood submitted that the Authority should order a broadcast statement which named the producer and director of the documentary. She asked the Authority to order costs to the Crown in line with its previous privacy decisions involving hidden camera filming, and taking into account TVNZ’s handling of the complaint. Dr Hood also submitted that RK should be awarded compensation for the breach of his privacy.

[43] TVNZ asserted that a broadcast statement would not serve any purpose, and that the producer and director should not be named. It disagreed with Dr Hood that RK should receive compensation for the breach of his privacy, noting that he had no “profile” in New Zealand and had not been brought into disrepute by the programme. With respect to costs to the Crown, TVNZ stated that it “did not knowingly screen the programme in flagrant disregard of the broadcasting standards”.

[44] The Authority has considered the submissions from both parties. It is of the view that TVNZ should broadcast a statement containing a comprehensive summary of the upheld aspects of its decision.

[45] With respect to compensation for the breach of RK’s privacy, the Authority takes into account the fact that RK is not a New Zealand resident, and there is no evidence that he has suffered any harm as a result of the broadcast. However, in recognition of the fact that his privacy was breached, the Authority orders TVNZ to pay $500 to RK.

[46] Costs to the Crown are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. The Authority has found that the broadcast breached RK’s privacy and was unfair to him, and it considers that an order of costs to the Crown is appropriate in this case. In determining the amount, the Authority is particularly influenced by the programme director’s conduct in breaking a verbal and written agreement with RK. In the Authority’s view, this aggravated what was already a serious breach of broadcasting standards. It considers that the broadcaster should pay $5,000 costs to the Crown.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:
1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during prime time, on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.

2. Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to RK costs in the amount of $500, 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 s.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.
3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $5,000, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.