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Has fairness swallowed privacy?

By Steven | December 11, 2007

What would you do with this complaint?

During a Close Up item about the “naming and shaming” of drunk drivers by a Wellington newspaper, a woman was approached outside court after being convicted of her second drink driving offence. Although the woman declined to be interviewed for fear of losing her job, she was shown running down the street to get away from the reporter, and her age, marital status and salary were reported. Her face was initially pixelated, but she was “unmasked” and named later in the item.

Interestingly, it wasn’t a privacy complaint. (The complaint wasn’t made by the woman, but by a couple who watched the programme and thought it was unfair on her). Privacy might have struck some problems: was her conviction a private fact? Was there public a public interest defence? Was she “vulnerable” so that her privacy might be infringed, even though she was in a public place?

The BSA didn’t have to ask those questions. But it still upheld the complaint – on grounds of fairness. The woman was singled out and humilated, they said. They were particularly concerned about the footage of her running from the reporter, but they also found the “unmasking” at the end “sensational and gratuitous”. TVNZ singled her out and used her as an example. It was mean (the BSA didn’t use that word, but that’s the flavour.) The BSA also said that the result might well have been different if the woman was a public figure.

So: has fairness swallowed up privacy?

I’ve long suggested that everyone who claims breach of privacy should add in a claim for unfairness, even though you have to go to the broadcaster first, and can’t get damages for fairness (you can for privacy). This case is more evidence of the wisdom of this course. When the elements of privacy aren’t quite there, what looks like a privacy issue often falls within fairness. Hidden cameras are argued under both standards.

Did the BSA get it right? We’re talking about a drunk driver here. Doesn’t she deserve shaming? Just because other drunk drivers don’t get similar treatment – does that mean she shouldn’t get it either? Yet TVNZ’s treatment of her was pretty horrible. I’m still not quite sure where I stand on this one.

Topics: Broadcasting Standards Authority | 11 Comments »

11 Responses to “Has fairness swallowed privacy?”

  1. Russell Brown Says:
    December 12th, 2007 at 10:46 am

    I know it’s not the direct concern of a regulator, but when I heard Phil Wallington declare yesterday that he’d “like to see more of this sort of thing”, I thought why? What purpose does it serve other than spectacle?

    Like you, I’m not quite sure where I stand on the BSA’s decision. But I’m not about to describe this as good journalism.

  2. mattb02 Says:
    December 12th, 2007 at 2:57 pm

    The BSA owes its existence to snobbery. There is a market for the attention of viewers, and the job of TV execs is to work out what viewers want to see and give it to them. The job of the BSA is to tell viewers, via its regulation of TV stations, that what many of them want to see isn’t tasteful on no grounds other than their employers’ arbitrary preferences. That is snobbery.

    I therefore disagree with BSA precisely because it has imposed a binding constraint on profit-seeking provider operating in a competitive market where profit is maximised by giving consumers what they want. Which is not to say TVNZ got it right – perhaps they overstepped the mark in their viewers eyes – but the point is that punishment for doing so is in proportion to the offence caused, leaving no room at all for the BSA improve things. The BSA is simply ensuring viewers do not get what they want.

    And let me respond to the tiresome objection that this is laissez faire and anything goes: Laissez faire, yes. Anything goes, absolutely not: TVNZ still has to win its audience.

  3. Stephen Franks Says:
    December 14th, 2007 at 10:17 am

    When did we ever have the debate about dumping the careful protections (of free speech) evolved in defamation law to replace the by privacy ‘law’ (effete ‘feelings’ about how nice people should behave).
    I thought the dangers represented by the BSA needed little elaboration.

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