Brian Edwards Media

Good news for randy carpet layers? The BSA sets a worrying precedent for TV3′s Target programme

 

news.bbc.co.uk

 

Among its most recent decisions the BSA upheld a complaint from an electrician who, along with a couple of his workmates, had been filmed at the ‘Target house’ installing a heated towel rail and changing a light fitting. Target identified a couple of safety issues, involving a potential hazard (to the electricians themselves rather than to the ‘home owner’), but overall the job was well done and the company was given a respectable score of 7 out of 10. No criticism was made of the complainant. The faces of the electricians were clearly visible in the item and not pixellated.

So what was the problem? Well, the BSA decided that the complainant’s privacy had been breached. He had been clearly identified on the programme which several hundred thousand viewers would have seen and his permission had not been given or sought to show the footage on television.

Your initial response to this might well be the same as mine: the guy should be pleased his outfit did so well; what’s he moaning about?  To get the answer to that question you could plough your way through  the BSA’s complex legal semantics or I could try to give you a layman’s, hopefully accurate, translation. Why don’t we go with option two:    

Most of us behave rather differently when we’re alone or think we are alone than when we know other people are watching us. There’s nothing necessarily sinister or wrong about this. Our right to privacy entitles us to keep certain perfectly legal and harmless activities to ourselves, as any adolescent boy could tell you.

The Authority refers in its finding to  an ‘interest in seclusion’ or ‘expectation of privacy’, which relates to an individual’s reasonable expectation that when they are alone or think they are alone, they are not being watched, recorded or filmed, let alone for public exhibition. The explosive proliferation of security cameras means that in any given day, most of us will be watched, and our actions recorded, several times, but most of us also know that this is happening and, unless we’re breaking the law, we’re unlikely to see ourselves, and our faces in particular, on the telly that night.

The ‘unless we’re breaking the law’ qualification is important. Generally speaking those caught breaking the law forfeit their right to privacy. The two women filmed shoplifting in an Auckland bedding store earlier this week really can’t complain that their pictures were all over telly that night.  Those pictures are deemed to be ‘of public interest’ and showing them  to be ‘in the public interest’.

It’s this principle which allows investigative television programmes to set up ‘stings’ to catch evildoers in the act. Target’s popularity, in particular,  relies heavily on such stings which include hidden camera exposés of retailers selling restricted goods to underage customers and trades-people engaging in shoddy  practices and inappropriate behaviour in clients’ homes. It’s safe to say that naughty tradesman are the biggest audience draw-card on the programme. Check out the ratings for the masturbating carpet-cleaner.

You can see why he wouldn’t want to be filmed and shown on TV. But why would an electrician who hadn’t done anything wrong and whose company had come out pretty well, complain to the BSA? And why did the BSA uphold his complaint? To be on the safe side, I think I’d  better cite a few bits from the Authority’s finding. (Take a deep breath!)

[21]  In the present case we have, on balance, reached the conclusion that the complainant had an interest in seclusion while working inside the Target house. This is because, on the face of it, there was nobody else there and it was, essentially, a secluded place. In such circumstances, a person may behave in a way in which we all may behave in private, but not if we expected we were being watched. This does not mean that the different behaviour is “bad behaviour”. Rather, it is behaviour of a more private kind.

[24]  The purpose for which surreptitious filming is being undertaken is relevant. If it is being undertaken for legitimate employment purposes, then, in our opinion, this would not ordinarily be filming which is “in the nature of prying”. If, however, the filming is being undertaken for the purposes of producing a television programme to be aired publically, then that may well take the filming to a level that amounts to prying... (my italics)

[25]  Here, the surreptitious filming was of a person going about their business in circumstances where they had an expectation of privacy, and where it was not undertaken for legitimate employment purposes. In our view, and again on balance, this amounts to “inquiring impertinently”, and “interfering” with a person’s privacy. We therefore consider that the general principle regarding the use of a hidden camera, which will usually amount to “prying”, applies.

[27]  Privacy principle 3 makes it clear that it is the intrusion, not the disclosure, which must be highly offensive. In this respect, we note the general principle… that there is no justification which allows a reporter to intrude into private places or matters when they have no reasonable basis to do so, but simply think that they may find something which warrants broadcasting. [my italics]

[28]  Here, as with all Target hidden camera trials, the camera was set up without having any indication of how the electricians would behave. We consider that the filming of a person with a hidden camera, in circumstances where that person has an expectation of privacy, for what is essentially a “fishing expedition”, is something that the ordinary person would find highly offensiveThe offensiveness, in our view, derives from the complainant – going about his business, without any expectation of being exposed to the glare of publicity – being picked out, isolated and unexpectedly exposed. He was not warned of the intended broadcast; as discussed below, he did not consent to the filming or broadcast of the footage, and he was not as much as asked for his consent. (my italics)

[29]  Accordingly, we find that filming of the complainant amounted to a highly offensive intrusion into his interest in seclusion, in breach of his privacy. (my italics)

It could be argued that the BSA’s ruling in this case effectively makes it impossible for Target to continue with the ‘Target house’ format at all. This is because the privacy breach has less to do with the actual broadcast of the material filmed, than with the action of filming it at all. Since the very nature of the format depends on the tradesman or woman thinking they are alone in the house, that person will  by definition have ‘an interest in seclusion’ or ‘expectation of privacy.’ They should therefore not be filmed at all without their knowledge or prior consent, a clearly impossible condition.

The situation might be different if Target had previous evidence of poor quality workmanship or inappropriate behaviour by a particular tradesman or company, but this is not the case. The ‘Target house’ segment is presented as a random survey. And that’s the problem:

…there is no justification which allows a reporter to intrude into private places or matters when they have no reasonable basis to do so, but simply think that they may find something which warrants broadcasting… We consider that the filming of a person with a hidden camera, in circumstances where that person has an expectation of privacy, for what is essentially a “fishing expedition”, is something that the ordinary person would find highly offensive

That is a precise definition of what happens in the ‘Target house’.

If I read this judgement correctly then anyone secretly filmed in the ‘Target house’ can expect to have a complaint of breach of privacy upheld by the BSA, whether they were doing anything wrong or not, whether their faces were seen or not and even whether the item was broadcast or not. The breach of privacy arose from filming someone in a location where they had ‘an interest in seclusion’, ‘an expectation of privacy’.  Questions of the public interest don’t even come into it.

Good news for randy carpet cleaners!

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22 Comments:

  1. Balani’s furniture store is in Auckland.

    BE: Judy also spotted my mistake, Jeremy, and I’ve since corrected it. George used to do breakfast on the original Radio Windy and I followed him at 9am. Funny to see him in his new role. Must remember him if we need a new bed. The brass of those two women!

  2. I was never a fan of the target program where they targeted typically low wage earners/trades people who could not afford legal recourse. They never tried there act out on lawyers, doctors etc who could afford to take them to court. There was always a disturbingly voyueristic tone to the program.
    It is kind of ironic that the program that sought to expose the misdeeds of others was itself a bit pervy.

  3. Indeed Phillip, I stopped watching Target after they did a “fat test” on a variety of takeaway foods but only those sold by mum and dad takeaway stores. Not a single Pizza Hut, McDonald’s, Burger King, or KFC was “targeted”. Unlike Fair Go which has a reputation for taking on the big-boys, Target has a clear strategy of only focusing on business that a) are unlikely to be able to sue it and b) are unlikely to be significant Mediaworks advertisers.

    It’s also socially corrosive in that it emphasises the small percentage of bad tradesmen at the expense of the reputation of all the others. My brother in law is a tradesman and says Target has made his work-life a lot harder.

  4. I’m no fan of the BSA but in this case “they done good”. Target’s smug, sanctimonious, voyeuristic self-satisfaction lost me as a viewer many years ago. Phillip and Solly are spot on about Target picking on those who can’t defend themselves too.

  5. I put 3News on to George’s story after seeing the footage on youtube. Shoplifters of this type need to be caught. Glad I could help. George has been given a name from a Police officer in the Waikato – they now know who one of the women is.

  6. damn, I was really looking forward to Target sending a baby into a dairy to buy cigarettes, alcopops and legal highs…

    hope they don’t move onto Tabacco Companies, the Alcohol Industry and Fast Foods NZ…

  7. An extremely interesting article and having read Philip’s and Sally’s comments it makes me wonder whether TV3 & Mediaworks will continue with this segment and if so will they do so on the basis that many tradesmen & mum and dad retailers will be ignorant of the BSA ruling. This then poses the question of how to make this ruling more widely known to the group.

  8. A way overdue ‘definition’ in a legal system full of huge holes (touchy feeley no litigation law & ACC has rendered NZ’ers quite impotent when it comes to the law). Voyeurism is all that segment was about anyway. Very low brow TV. Cheap maternalistic and paternalistic rubbish in my opinion (very much like a gossipy womens magazine). “Tutt tutt! Don’t do that dear, it’s not nice”.

  9. So why exactly is this a “worrying precedent” Brian?
    When a photographer wants to use a photo he has shot of a model, that model first has to sign a model release contract. And they are both just doing their jobs! But you media people seem to think you have a god given right to interfere in private people’s business.
    You will understand that my initial response was not at all the same as yours. In fact, this electrician’s appearance on Target at all may in itself leave negative impressions about him: “It’s safe to say that naughty tradesman [sic] are the biggest audience draw-card on the programme.” Says it all really.

    BE: it isn’t a worrying precedent for me; it’s a worrying precedent for Target as the title of the post clearly states. You might consider reading what’s been written before sounding off about “you media people”. I take no position in the post, merely outline the issues. Before labelling me you might like to check back on posts I’ve written about Target in the past. I’m tempted to respond, “You idiots…”

  10. The BSA’s decision doesn’t preclude home-owners from having cameras inside their house. Also, Target can still do what they’ve been doing as long as they tell tradesmen and women that they may be filmed. Target will be able to say who has agreed to be filmed and who hasn’t.

  11. @Ross, depends where the cameras are and what for.

    I recall a recent criminal conviction for a householder who installed a camera for voyeuristic purposes.

    Hard to see Target surviving this.

  12. The home is in effect a workplace would this have any consideration in this ruling.Target may be a little low brow, but it has awoken us to the unbelievable actions of some businesses.

  13. @ Brian: Thanks – I’m glad we’re on the same page about Target then. I took your advice and read the other piece you wrote about Target (the episode of the randy carpet layer). That piece was about ratings; this piece was about privacy.
    So I haven’t changed my mind. You say you take no position in your post and merely outline the issues, but you say: “Your initial response to this might well be the same as mine: the guy should be pleased his outfit did so well; what’s he moaning about?”. As I said before, my initial response was not that at all – mine was “good on ya!”. You seem to think that, because in this case the outcome was positive, the subject should be happy – and presumably should have no objections to having been filmed and shown on TV etc. Which leaves “you” in my earlier statement “you media people…”, sorry.
    Who are you tempted to respond to with “You idiots…”?

    BE: I would have thought that when someone refers to their “initial response” the reasonable presumption would be that on reading further or on reflection, they had come to a different conclusion. You evidently prefer to stick to your view that I disapproved of The BSA’s finding, though nowhere is that stated or even implied in the post. I merely draw attention to the inevitable corollary of that decsiion. I’m not surprised you take exception to being lumped together with ‘idiots’. I object to being categorised as one of ‘you media people’.

  14. There’s a financial side to this as well that I’m surprised has not come up before. The trades people filmed on target provide the shows producers with content. This content is then sold to the network for a profit.

    Surely the tradespeople should be required to either be paid a fee in exchange for he rights to their performance or legally wave the right to one.

    I know shows like Motorway Patrol and Piha Rescue gain a release from people that appear or pixelate their face. If I was the trades person involved I would be asking for some compensation!

  15. @ Brian: I don’t object to being called an idiot by someone who doesn’t know me. I did not say I take exception to being lumped in with idiots – I was just asking – and now that I know I just ignore it.
    I am not saying that you disapprove of the BSA’s findings. I am saying that your initial response to the BSA’s findings is basically that the guy should be happy to be filmed and shown on TV.
    OK so there’s three issues here (or were):
    1: Whether you agree with the BSA’s findings. This was resolved in your first response to me (you mentioned something about the heading). I am sorry I forgot to acknowledge that.
    2: About the quality of the Target programme. This was also resolved: I said “glad we’re on the same page”.
    3: “You media people”. Now you are saying “I would have thought that when someone refers to their ‘initial response’ the reasonable presumption would be that on reading further or on reflection, they had come to a different conclusion.” Who’s ‘intial response’ are you talking about now? Two possibilities:
    a.- Are you saying you have come to a diffrerent conclusion? You see, that quote I used came from you. I copied-and-pasted it from your own original post. I put it in quote marks, like this: “Your initial response to this might well be the same as mine: the guy should be pleased his outfit did so well; what’s he moaning about?”. To which I replied in my post above (my ‘initial response’ is still “good on ya”). Anyway, if you *have* come to a different conclusion, I would be very happy to take the “you” out of “you media people”. In fact that whole statement (“When a photographer wants to use a photo he has shot of a model, that model first has to sign a model release contract. And they are both just doing their jobs! But you media people seem to think you have a god given right to interfere in private people’s business.”) would be irrelevant.
    b.- I said: “As I said before, my initial response was not that at all – mine was “good on ya!”.” This “initial response” referred to the “initial response” in your sentence that I copied-and-pasted (see above under a.). I should have put it in quote marks for clarity, sorry. Or maybe I could use italics?
    I am sorry if all this sounds partonising or pedantic, but I just want to be as clear as possible (I feel I have not been clear enough in my previous posts).

    BE: If you say so, Toine.

  16. “But why would an electrician who hadn’t done anything wrong and whose company had come out pretty well, complain to the BSA?”

    Because he objects to being snooped on?

    I don’t think the case would be any different if it were a private citizen filming in their own home. You have no right to film people without their consent when there is a reasonable expectation of privacy. There’s no specific public interest in this case that could not be served by means that do no violate this person’s privacy.

    I’ve used Target in my classes on numerous occasions as an example of an egregious privacy violator. I think it should be taken off air or change its format. Similarly, annoying middle class people who secretly tape their babysitters ought to be heavily fined.

  17. A TVNZ show The Inspectors was also found against. This was not a hidden camera show but rather the crew followed a health inspector on his rounds. Interesting because it all relates to consent being given, or not.

    Here is the link.

    http://www.stuff.co.nz/entertainment/tv/8125219/Reality-TV-shows-stung-for-privacy-breaches

  18. Good on the court.

    As a tradesman, I do not want to end up on National TV scratching my arse or picking my nose.

    How about evening it up with a show on dodgy and dishonest tradesmens customers, which I can assure you, greatly outnumber dodgy tradesmen.

    Imagine the outcry if you filmed them pulling bits off things to pretend the job is bad, to avoid paying, announcing after the job is done they have no money to pay you and never did have or taking you to court for damage done by their home handywork you have never been anywhere near.

    Target is a disgusting invasion of privacy.

  19. 19

    Yes it's me!! "the complainer"

    Don’t praise The Broadcasting Standards Authority too much, all they where is a middle man that claims to solve issues. Why do you even exist at all, if you don’t even solve my issue?
    You think by publishing an article resolves my issue, as if. I didn’t get an apology or anything out of Target.

  20. 20

    Yes it's me!! "the complainer"

    My complaint was brought on by several factors,
    One, Being I never in my life wanted to be aired In a TV show.
    2. I was wrongfully put in this situation, with no consent given by me to air my face.
    3. They actually modified the footage of me and the boss, making me look like the idiot… The boss got the wrong Gib fixers. So they where never going to do up tight in the first place, this explains why the presenter is one minute saying I did them up too tight, But it’s still wobbly on the wall!! “How in the world does that make sense?”
    4. I did not snap the screw off in the wall; however the boss pushed one of the whole gib fixers into the wall. (I somehow got coped with all the blame, and they didn’t show the boss doing that)
    With a breach of privacy all ready done by Target, I Did not want to approach them about the false content they made up. I wish now I did. (You can only go to the BSA about breach of privacy)

  21. Sounds like a case for US “Fee for success” lawyers.

  22. I actually don’t see how you got this out of it!!
    “If I read this judgement correctly then anyone secretly filmed in the ‘Target house’ can expect to have a complaint of breach of privacy upheld by the BSA, whether they were doing anything wrong or not, whether their faces were seen or not and even whether the item was broadcast or not. The breach of privacy arose from filming someone in a location where they had ‘an interest in seclusion’, ‘an expectation of privacy’. Questions of the public interest don’t even come into it.” It actually still seems that target will just continue to tiptoe around this issue, as they were, but probably just a bit more careful at the content, and showing faces and company names etc.