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

Among its most recent decisions the Broadcasting Standards Authority 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 offensive… The 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!

Media trainer and commentator Dr Brian Edwards blogs at Brian Edwards Media.