1 Feb 2003, 09:00

A television technician was called to repair a TV in a private residence. Although he was met by a woman he believed to be the householder, she left shortly after explaining the problems with the TV. Unknown to him, he was being covertly filmed, both inside and outside the house.

He was later told that a video recording had been made of his activities. The purpose of the recording was to provide footage for a TV3 consumer programme series called Target. The "householder" was an actor, and the call to the technician's company had been made by a television production company.

After being told about the videotape, the technician was given the opportunity to view the unedited tape, and was asked to provide any comments in response. The programme's producer intended to publish those comments by including them in the programme in a "right of reply" slot. The technician felt that he could not adequately respond without knowing what the edited version would portray, and so he asked to see that version. He was not provided with an edited copy apparently because of the producer's policy of not releasing edited versions of the tapes until they had been broadcast.

The item featuring the technician was later broadcast. He considered that the covert taping, and subsequent broadcast (which he believed would be misleading as a result of editing the footage) amounted to an interference with his privacy. He complained to me about the production company's actions. However, I formed the opinion that the programme fell within the category of news and current affairs and was thereby excluded from the provisions of the Privacy Act.

The Privacy Act

The Privacy Act has wide application, but some organisations have been specifically excluded from its coverage for certain purposes.

The news media in their news activities are excluded from the definition of "agency" and therefore from the application of the information privacy principles. The producer argued that the programme fell within this exclusion.

A "news medium" is defined generally as: “"Any agency whose business, or part of whose business, consists of a news activity..."

A "news activity" is defined to mean:

(a) the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observation on news, or current affairs, for the purposes of dissemination to the public or any section of the public:
(b) the dissemination, to the public or any section of the public, of any article or programme of or concerning -
(i) news:
(ii) observation on news:
(iii) current affairs.

The producer said that the activities of tradespeople when in private houses were a matter of public interest and, being current affairs, the gathering of information on, and production of programmes about such matters constituted a "news activity".

I also sought the views of TV3. It advised that the Target series had been commissioned in order to provide a considered examination of, and advice on, consumer issues in the New Zealand context. It classed the series as coming within the News/Current Affairs genre rather than the Documentary or Entertainment categories (for which it also commissioned series).

TV3 considered that viewers were given a number of significant "signals" which would have caused them to understand that the programme was intended by TV3 to be of the "news" class rather than of the other formats available. These were:
- the time slot in which the programme was placed, immediately before TV3's other main news/current affairs programme 20/20
- the profiles of the host and presenters: a former news anchorwoman and journalists with news reporting backgrounds
- conscious mimicking of news/current affairs programmes such as 20/20
- the style of the programme's presentation, involving classic current affairs techniques such as a right of reply, and the use of experts
- the consumer focus of the programme content, in particular the "hidden camera" and the input of the Consumers Institute expert
- the credibility of the Consumers Institute expert as a respected commentator on issues of news and interest in the field of consumer affairs, and the fact that his involvement was predicated on the series not being entertainment
- the role of the series as a consumer advocate and the fact that the series had "broken" a number of news stories in the consumer affairs field, leading to the subsequent follow-up of those stories in other media (and through the series itself).

TV3 suggested that when assessing whether the series constituted "news activities", I should take into account the intent of the series' producers in making the programme, rather that the intent of the series' viewer: simply because a series was entertaining should not necessarily cause it to be defined as entertainment.

Weighing all the factors raised by the producer and TV3, I formed the opinion that the Target series did come within the category of news/current affairs and therefore that part of the producer's business was "news activities". As a consequence, the producer appeared to be a "news medium" and to fall within the exception to "agency".

The technician's complaint about the covert filming and subsequent broadcast on the Target programme could not succeed under the Privacy Act. Further, the right of access to personal information in principle 6 did not apply to the technician's request for an edited video.

Note: The technician would have been entitled after the broadcast to complain about TV3 to the Broadcasting Standards Authority under the Broadcasting Act 1989 if he considered the item breached broadcasting standards, including those concerning privacy.

September 2003

Indexing terms: collecting personal information - television producer - covert video for television programme - "agency" - "news activity" - Privacy Act 1993, s 2