In late 2001 the Broadcasting Standards Authority decided to conduct research into privacy and informed consent issues in broadcasting. There were three main reasons for this decision. First, the Broadcasting Amendment Act 2000 included a provision that would enable broadcasters and/or the Authority to develop a privacy code of broadcasting practice. Second, there had been a steady increase in the number of privacy complaints made to the Authority since its inception in 1989. Third, developments in programming, such as the rise of 'fly on the wall' documentary formats, competitive-based reality television and evolving entertainment formats, were continuing to challenge attitudes about not only privacy, but also methods of gaining consent.
Chapter one of this monograph provides an overview of decisions the Authority has issued involving privacy and consent since our previous publication Privacy: Interpreting the Broadcasting Standards Authority's Decisions January 1990 to June 1998. This decisions issued between July 1998 and December 2003.
Chapters two and three detail the findings of the Authority's consultation with specific stakeholder experts on privacy and informed consent issues. Seventy-five broadcasters, programme producers and directors, academics, lawyers, Maori, and community advocacy organisations were interviewed extensively. These interviews also helped us refine the questionnaire for a national public opinion survey.
Chapter four outlines the findings of the national survey, during which 1,195 New Zealanders were interviewed face-to-face to measure public attitudes to issues of privacy and consent.
Purpose
The objectives of this research on privacy and informed consent in broadcasting were threefold:
• To inform the Authority's decision-making when it considered complaints involving matters of privacy and informed consent in the context of the public interest and the freedom of expression.
• To test the efficacy of the Authority's privacy principles as set out in its Advisory Opinion, with the option of developing a privacy code in the future in consultation with interested stakeholders.
• To assess whether the Authority should lead the development of ethical guidelines outlining the procedures for obtaining informed consent.
Methodology
- Reviews BSA decisions from July 1998 to December 2003
- National survey
- 1,195 New Zealanders interviewed face-to-face
Key Results
Privacy decisions July 1998 – December 2003
Aspects which became clear:
- facts of each complaint are critically important
- meaning of a ‘public place’ determined by taking the particular facts into account
- ‘the public interest’ is a legitimate defence
- privacy complainants have their name suppressed where there is justification for doing so
Stakeholder consultation
- Broadcasters accepted the Authority’s privacy principles and their applications
- Separate code of broadcasting practice regarding privacy not required since privacy principles already part of the existing codes
- Television broadcasters thought consent issues encapsulated in the fairness standard of the Free-to-Air Television Code of Broadcasting Practice
- Radio broadcasters did not believe informed consent was an issue in radio programmes
- Independent producers saw the privacy principles as part of the overall broadcasting standards regime and believed that filming in a public place should not be subject to any privacy restrictions
- Legal and academic experts said that BSA had developed credible jurisprudence on privacy in broadcasting
- For Māori, privacy issues in broadcasting are frustrated by mainstream media not taking account of Māori tikanga such as marae protocol
- Māori concern focused on need for broadcasters and programme makers to consult with Māori communities with the understanding that the consultation needed to go beyond the individual to include whanau, hapu and iwi
- Community advocates generally placed a much lower threshold on what they perceived to be invasions of privacy than currently provided by the BSA’s privacy principles
National survey findings
- The findings revealed no broad consensus in opinion on privacy-related issues
- Significant numbers were satisfied that the status quo afforded enough legal protection
- Varied public opinion for informed consent
- Māori were more protective in issues of informed consent as compared to New Zealand Europeans
- Men were generally more accepting than women of many of the broadcast scenarios tested and lower expectation in regard to informed consent
- Younger respondents tended to hold more accepting views than older respondents both in terms of privacy issues and the necessary steps required for informed consent
- Level of media consumption played a role in respondents’ attitudes towards privacy and informed consent