Investigation Report No. 2483
File No. / ACMA2010/1750Broadcaster / ABC TV
Station / ABV Melbourne
Type of Service / National Broadcaster
Name of Program / Stateline (Vic)
Date of Broadcast / 19 March 2010
Relevant Code / Clause 2.8 of the ABC Code of Practice 2007
Date finalised / 17 December 2010
Decision / No breach of clause 2.8 [privacy]
The complaint
On 17 August 2010, the Australian Communications and Media Authority (the ACMA) received a complaint about a segment of Stateline broadcast by ABC TV on 19 March 2010. The complainant alleges that the segment contained footage of the complainant’s son which was broadcast without the complainant’s consent.
The complainant was not satisfied with the ABC’s response and referred the matter to the ACMA for consideration.[1]
The complaint has been investigated in accordance with clause 2.8 [privacy] of the ABC Code of Practice 2007 (the Code).
The program
Stateline is a current affairs program that is produced by the ABC and showcases stories pointing to local news relevant to each State or Territory. It is described on the ABC website as:[2]
The best analysis of politics, insight into the issues that affect you locally, and colourful stories about people and places in your state.
The program of 19 March 2010 broadcast a segment entitled ‘Schools money still causing friction’. The segmentexplored the relocation of a school for intellectually disabled childrenas part of the Victorian rollout of the Federal Government’s school stimulus package.
The broadcast included footage of the school’s playground which contained images of students and staff at the school. The complainant identified two images featuringher sonwho attends the school.
A full transcript of the segment is set out at Attachment A.
Assessment
The ACMA’s investigation is based on submissions and a copy of the broadcastprovided to the ACMA by both the ABC and the complainant. Other sources used in the ACMA’s assessment are referenced where relevant.
Issue: Privacy
Relevant Code
2. General content codes
2.8 The rights to privacy of individuals should be respected in all ABC content. However, in order to provide information which relates to a person’s performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified.
Consideration of clause 2.8 of the Code.
The Code does not define ‘privacy’. Accordingly, the ACMA refers to the Macquarie Dictionary’s (5thEdition) ordinary meaning of the word:
Privacynoun
- The state of being private; retirement or seclusion
Privateadjective
- Belonging to some particular person or persons; belonging to oneself; being one’s own: private property.
- Relating to or affecting a particular person or a small group of persons; individual; personal: for your private satisfaction.
- Confined to or intended only for the person or persons immediately concerned; confidential: a private communication.
The Privacy Guidelines for Broadcasters (2005) (the Privacy Guidelines) assist broadcasters and the public to understand the operation of privacy provisions in the various codes of practice including those developed by the ABC[3]. They apply to material relating to personal information such as, for example, information concerning a person’s health, personal relationships, financial affairs, and to material concerning the private conduct of an individual. Conduct is considered private when it is carried on in circumstances that the parties would have a reasonable expectation that their activity would be observed or listened to only by themselves.[4]
The Privacy Guidelines also state that the broadcast of private material occurs when:
- The material relates to a person’s private affairs so that its broadcast is likely to cause harm or distress to a reasonable person in the position of the individual; and
- An individual is identifiable from the material broadcast.
‘ordinary reasonable viewer’
The ACMA assessed what an ‘ordinary reasonable viewer’, in their position, would consider private. Courts have considered an ordinary, reasonable viewer to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. The person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[5]
‘public interest’
The Code recognises that a balance must be struck between keeping the Australian public informed of news and current affairs, with respect for individual privacy. The Code states that intrusions of privacy may be justified in matters of public interest or in the performance of public duties.
Complainantsubmissions
The complainant submitted to the ABC that:
My son attends Brunswick S.C.S and was filmed by your crew without my consent. I have spoken to the school Principal who stated that it was made clear to the crew that the children were not to be filmed. I am extremely opposed to the ABC’s actions and want this matter dealt with.
[...]
My son is first filmed crashing over a small basketball ring and later seen ... running through the yard flapping his hands.
These are both negative self stimulatory behaviours we are trying to eradicate not film. The filming of these behaviours reinforces a negative stereotype.
[...]
The complainant was not satisfied with the ABC’s response and referred the matter for consideration to the Complaints Review Executive.
Broadcaster’s submissions
The ABC’s Corporate Affairs; Audience Consumer Affairs; and the Complaints Review Executive, assessed the matter against section 11.14.2 of the ABC Editorial Policies.
The extracts of the findings that are most relevant to clause 2.8 of the Code are as follows:[6]
Audience and Consumer Affairs
[...]
I have confirmed with ABC News management that the film crew attended Brunswick Special Development School with the permission of the School Principal, on the understanding that the vision shot would not identify any of the children. That request was respected. The children were filmed because they are the essence of what the school is about. I am advised that the Principal... was present at all times during filming and provided an extensive tour of the school to Stateline.
Having reviewed the broadcast, we believe the footage of students that went to air was sufficiently out of focus to ensure that their identity was disguised. The first shot showing your son is filmed from behind and he is completely blurred. The second is only very brief, less than one second, and your son is in the middle distance. While acknowledging that you are able to recognise your son, we do not believe that he could be identified from the footage in the broader school community or beyond.
[...]
[W]e have investigated your concern that permission was not granted by the school to film the students and were advised that permission was indeed granted by the principal, and that the principal was present at all times while filming was being conducted.
Audience and Consumer Affairs acknowledges that there are conflicting versions, between you and Stateline, of the nature and extent of the permission granted to the film crew by the school. Based on the information available to us, Audience and Consumer Affairs cannot determine the exact content of the discussions between the reporter and the school principal. However, given the presence of the principal throughout the filming, and the fact that the footage broadcast was heavily blurred and does not identify the students, Audience and Consumer Affairs re-confirms its view that the report has not contravened the Corporation’s editorial standards.
Complaints Review Executive
[...]
After viewing ‘School money still causing friction’, it is clear that the news cameraman has deliberately used a variety of techniques to disguise the identity of students. These include shooting from behind students (so as not to show their faces), shooting out of focus, and filming students from a middle distance and filming at this distance in only short snippets.
I find it reasonable to conclude that the students depicted in the story were shot (or masked) in such a way that they could not be identified, by the broader school community or a wider audience. I do respect that the complainant can identify her son in two brief snippets. However, in these circumstances, I concur with A&CA that the duration, the distance and the angle of shooting is such that a general audience viewing this story could not identify the student in the same way.
The complainant raises the issue of parental consent, in particular that of written consent before filming should take place. In general the consent of a parent or legal guardian should be sought before involving a child in ABC broadcast content- as outlined in section 11 of ABC Editorial Policies. It is not stated that written consent is necessary.
In this particular case, considering that Stateline sought consent from the school principal – on the basis that students would not be identified – I am not persuaded there has been any breach of ABC’s Editorial Policies regarding the participation of children in ABC content.
[...]
Finding
The delegate finds that the ABC did not breach clause 2.8 of the Code for the broadcast of Stateline on 19 March 2010.
Reasons
The delegate considers that the complaint raises two separate but related issues. The complainant has claimed that her son was filmed without her consent at Brunswick Special Development School. The matter was considered by the ABC against clause 2.8 of the Code which concerns privacy.
Consent
As noted in the ABC’s correspondence with the complainant, section 11.14.2 of the ABC Editorial Policies states:
In general the consent of a parent or legal guardian should be sought before involving a child in ABC broadcast content. In the case of very young children or when the subject matter is sensitive, consent is essential. If children are to take part in content-making during school hours, consent is also necessary from the school authorities.
The delegate considers that under this policy, it is necessary to obtainthe consent of a parent (or guardian) before involving a child in ABC content, regardless of whether that child is identified or identifiable in the broadcast. Where this is to occur in school hours (and presumably on school premises) the additional consent of school authorities is necessary.
In this case, the complainant’s son was involved in ABC broadcast content, with the consent of the school. It does not appear to be in dispute that the complainant’s consent as a parent was not obtained. This is a matter of concern to the delegate. The delegate considers that in any filming at a school, parental consent is a separate pre-requisite to a child’s participation.
It is also clear from the policy that parental consent is essential in the case of very young children or those where the subject matter is sensitive. The delegate considers that it would have been clear to the ABC that children in a school for those with developmental problems will be particularly vulnerable and that special health issues, such as behavioural or welfare issues would be likely. In such sensitive circumstances the delegate considers that the complainant’s consentshould have been obtained in the first instance, as well as that of the school.
However, consent is not specifically covered by clause 2.8 of the Code concerning privacy and the ABC’s editorial policy concerning participation of children is not reflected elsewhere in the Code.
Privacy
Clause 2.8 of the Code provides for the rights to privacy of individuals to be respected. As noted above, it does not provide specifically for consent to be obtained before broadcasting material relating to a person’s private affairs or which invades an individual’s privacy. It also does not make any provision for special care to be exercised before using such material relating to a child or a vulnerable person.
However, Privacy Guidelines referred to above will apply.
The Privacy Guidelines state that assessing complaints about intrusions into privacy requires consideration of two main questions:
- Did the program broadcast private material? and
- Was its broadcast warranted in the public interest?
As outlined above at page 3, the general rule set out in the Guidelines is that the broadcast of private material occurs when an individual is identifiable.
Was the material broadcast private?
The broadcast that is the subject of this investigation is as follows:
Image 1was approximately 2 seconds and included the side profile of a student walking in the school yard with a blue T-Shirt and a white cap. Behind the student was another student with his back facing the camera featured pushing down a yellow pole which the complainant states is a basketball ring. The images were heavily blurred.
Image 2was less than 1 second and featured the complainant’s son wearing a black and white cap running across the screen flapping his hands. The background featureda basketball court and a female student wearing a hat sitting next to a pole. The images were heavily blurred.
As the material was filmed in a school, the delegate considers access to the public would be restricted and there would have been an expectation of privacy in the school grounds. The delegate considers that in the circumstances of a school for children with developmental needs, this material could potentially disclose information concerning a vulnerable child’s behaviour, health and welfare. As discussed above, parental consent was not obtained for the participation of the complainant’s son in the broadcast.
However, the delegate accepts that in this case, the images of the child in question were blurred or filmed from a distance and that he would not have been identifiable to the general public. He was not named or otherwise identified and he was not filmed at close range or for more than a brief period.There was no identification of the child by name, nor was any other identifying information disclosed, such as the names of his parents or siblings, and no other identifying material appeared in the story.
The delegate is satisfied that the complainant’s son would not have been identifiable in such a manner as to cause harm or distress to a reasonable person in the position of the individual because in both images the boy is heavily blurred to the point that he is unidentifiable. Furthermore, there is no verbal commentary or other visual images that could convey information about the identity of the boy.
It is accepted that the complainant was able to recognise her son, and the complainant’s concern that the actions filmed were ‘negative self stimulatory behaviours’ are noted. However, the delegate considers on the basis that there was no identification of the child for the purposes of the Privacy Guidelines, that the ABC did not breach clause 2.8 of the Code.
As the material broadcast does not constitute private information for the purposes of the Code, it is not necessary to consider whether it was broadcast in the public interest.
Accordingly, the ABC did not breach clause 2.8 of the Code.
However, the delegate recommends that the ABC Code of Practice be amended to provide forconsent to be obtained from a parent or legal guardian before involving any child in ABC broadcast content; and to provide for special care to be exercised before broadcasting sensitive material concerning a child or vulnerable person.
Attachment A
Schools money still causing friction
A Victorian principal wants the Government to follow NSW and audit the Education Department's handling of a Federal schools building program.
JOSEPHINE CAFAGNA, PRESENTER: Well-intended, ambitious, but poorly implemented - that's how some are describing the Victorian rollout of the Federal Government's school stimulus package. A school principal is calling for an audit into the spending and the Victorian Ombudsman's office has reviewed at least one case identifying deficiencies relating to a lack of community consultation. The building industry claims the pace has slowed dramatically for the latest round of projects, but that won't be enough to stop one school from being relocated altogether as a result of its windfall. Erin Vincent reports.
ERIN VINCENT, REPORTER: $2.5 billion, almost 2,000 Victorian school upgrades and a three year timeline. The unprecedented Federal Government spending was designed to create jobs during tough times.
But Anne Murphy and her husband Matthijs Smith never imagined a grant for their son Max's special school could turn their lives upside down.
MATTHIJS SMITH, FATHER: $5 million should not make us worse off, yet that's exactly what it's doing. For our family, personally I wish we'd never even heard of that money.
ERIN VINCENT: The money will see Brunswick Special Developmental School relocate to a soon-to-be-closed college site in Bellfield 10 kilometres away. Seven-year-old Max Smith is severely intellectually disabled. Three years ago his parents moved to Moonee Ponds so he'd be a five minute bus ride away from school.
ANNE MURPHY, MOTHER: If I did decide to put Max on the bus, which is made available to children at special schools, he's likely to be on a bus for at least 1.5 to two hours each way every day and I know he wouldn't tolerate that.