· Web view(1969) 2 QB 375 at 391 It should be proportionate and relevant to those issues, and not disclose peripheral facts or be excessively prolonged, detailed or salacious. In

Investigation Report 3199File No. ACMA2014/297

Licensee Southern Cross Television Pty Ltd

Station TNT Tasmania

Type of service Commercial Television

Name of program Today Tonight

Date of broadcast 12 November 2013

Relevant Code provisions

Clauses 4.3.1, 4.3.5 and 4.3.5.2 of the Commercial Television Industry Code of Practice 2010.

Date finalised 3 November 2014

Decision No breach of clause 4.3.1 [accuracy and viewpoints] No breach of clause 4.3.5.2 [child’s privacy] Breach of clause 4.3.5 [personal information and privacy]

ACMA Investigation Report 3199 – Today Tonight broadcast by TNT Tasmania on 12/11/13

The complaintIn April 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about a segment of Today Tonight broadcast on 12 November 2013 by Southern Cross Television Pty Ltd, the licensee of TNT.

The complainant alleged that the segment breached clauses 4.3.1 (accuracy and viewpoint) and 4.3.5 (privacy) of the Commercial Television Industry Code of Practice 2010 (the Code).

The complainant was not satisfied with the licensee’s response to her complaint and referred her complaint to the ACMA.1

The programToday Tonight is a half hour current affairs program, which is broadcast on weeknights in Tasmania on Channel 7 at 6:30 pm.

The segment broadcast on 12 November 2013, ‘Home Hijack’, reported on a dispute concerning the sale of a property – the dispute being between the owner of the property (Z) and a couple purchasing the property. Z claimed that the couple (the complainant and her partner) did not pay the amount required to finalise the contract of sale and that the couple had then placed a caveat on the property preventing Z from otherwise selling the property.

The segment was critical of the complainant and included footage of the complainant at the property.

A full transcript of the segment is set out at Attachment A.

AssessmentThe investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other relevant sources have been identified where used.

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ viewer.

Australian 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. That 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 affairs2.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning conveyed by the material broadcast, it then assesses compliance with the Code. 1 1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s role in

investigating complaints under codes of practice. 2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.


The complaint has been investigated in accordance with clauses 4.3.1 [accurate presentation of factual material and fair representation of viewpoints], 4.3.5 [privacy] and 4.3.5.2 [privacy of a child] of the Code.

Matters not pursuedThe complainant has asserted that the following statement was inaccurate:

‘A couple of nights later they called’...’how would you feel if we wanted to buy your house?’

The ACMA has been unable to locate this statement in the broadcast. Accordingly, the complainant’s assertion of inaccuracy in this case has not been included in this investigation.

The complainant has also alleged that Z ‘was inaccurately represented as an Australian, whereas she is an American citizen’. The ACMA notes that no statements were made in regard to Z’s citizenship in the broadcast. Accordingly, this aspect of the complaint has also not been included in the investigation.

Issue 1: Accuracy Relevant Code provisionNews and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

4.3.1 must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

The accuracy requirements under clause 4.3.1 of the Code apply to factual material.

The considerations the ACMA uses in assessing whether broadcast material is factual in character are set out at Attachment B.

FindingThe licensee did not breach clause 4.3.1 of the Code.

SubmissionsRelevant extracts from the submissions of the complainant and the licensee are at Attachments C and D respectively.

The complainant does not dispute that there is a disagreement over the sale of the property which featured in the broadcast. It is also common ground that the complainant resides in the property and that she and Z disagree on the amount payable to complete the contract of sale. These facts were central to the broadcast.

ReasonsThe first question for the ACMA to determine in such matters is whether the material complained of is factual material. If the material is factual, the ACMA will then consider


whether it was broadcast accurately, having regard to the circumstances at the time of preparing and broadcasting the segment, and in the context of the segment in its entirety.

Importantly, in this matter, clause 1.5 of the Code provides that:

1.5 “a failure to comply will not be a breach of the Code if that failure was due to:

…

1.5.4 an act or failure to act which, in all the circumstances, was clearly peripheral or incidental, and unlikely to offend or materially mislead viewers.’

The complainant has alleged that a great many specific statements made in the broadcast were factually inaccurate.

These include:

a. the police ‘did not have time for [the complainant’s] showboating’

b. the complainant is ‘a wannabe lawyer’

c. Z has ‘had a tough few years’

d. ‘Z can only dream of a sale’

e. the complainant ‘seems to find the whole thing hilarious’

f. the text ‘Home Hijack’

g. the complainant ‘arranged to draw up a contract of sale’

h. the reporter ‘arrived to pose a few polite questions’ and at that time the complainant ‘calls the police’

i. the complainant ‘convinced [Z] to sell [the house] to her and partner’

j. under the terms of the contract, ‘over a period of two years [the complainant] would be paying monthly into two accounts’ rather than one account.

The ACMA considers that, in the context of the segment in its entirety, many of these statements are not factual material to which the Code’s ‘accuracy’ obligation applies. Statements a - f, in particular, were variously:

emotive, inherently subjective and judgemental

imprecise and hyperbolic

not capable of independent verification

created an impression of rhetorical pronouncements.

However, along with those statements that might properly be characterised as factual material at g – j, they were also incidental and unlikely to materially mislead viewers.

As noted above, the central facts presented in the segment went to Z’s occupation of the property and the dispute between Z and the complainant about the final payment due under the sale contract. In that context, any factual statements as to: who ‘convinced’ whom to contract; who called the police; and whether instalments were to have been paid into one account or two are clearly peripheral and if inaccurate (a matter on which the ACMA makes no finding) would be statements in respect of which clause 1.5.4 would apply.


On that basis, the ACMA has not further pursued its consideration of the complaints about these matters.

There are, however, three matters complained of where clause 1.5.4 may have no potential application and which the ACMA has carefully considered.

1. An image of the complainant depicted along with a picture of a property and the text ‘Home Hijack’.

The complaint is that the waterfront property depicted was not the property in question, and that the property has not been stolen (hijacked) (see Attachment C).

The licensee submitted that no one house was identifiable in the footage of a hillside, which was a general representation of the town, and it was is clear to the ordinary reasonable viewer that there was a legal dispute regarding the complainant occupying the property while full payment was outstanding (see Attachment D).

The ACMA notes that the photo of the complainant and the text ‘Home Hijack’ accompanied the opening remarks of the presenter which set the context for the segment. These were followed by Z describing her car accident and a subsequent visual of several houses on a hillside and a visual of a boat in the water accompanied by the following voice over:

Reporter: Facing years of rehab she was forced to leave her idyllic Tasmanian hideaway in the sleepy hamlet of [name of town].

The visual of the hillside was a relatively wide shot that included other houses. It was also brief and was immediately followed by an image of a dinghy in the water, suggesting that these images were representing a general location shot of the ‘sleepy hamlet’, as opposed to representing the specific property in question.

Accordingly, the ACMA is of the view that the ordinary reasonable viewer would not have understood these images to be limited to a depiction of the property at the centre of the dispute.

In regard to the text ‘Home Hijack’, the ACMA notes the licensee’s submission that the term was used in a colloquial manner to represent a situation where a house had been taken over, as opposed to being used in the literal sense involving force or threat.

The ACMA also notes that any uncertainty that the viewer may have had at the beginning of the segment as to the use of this term would have been clarified in the context of the segment in its entirety. It was clearly established during the segment that there was a contract in place for the sale of a property located in the hamlet and that at some point ‘things had turned sour’ and a dispute had resulted over the finalisation of the sale.

The ACMA is of the view that the ordinary reasonable viewer would have been left with the correct impression that the term was used in a colloquial manner in reference to the dispute and not a case of the complainant and her partner obtaining the property by force or threat.

Accordingly, the ACMA finds no breach of code 4.3.1 in relation to the opening depiction of the segment.

2. Reporter: Living it up as [Z’s] expense, while [Z] falls further and further behind with both mortgages.

The complaint is that this statement is inaccurate as there was only one mortgage affecting the disputed property.


The ACMA considers that, in the context of the segment in its entirety, the ordinary, reasonable viewer would have understood the statement to have been made in reference to Z’s mortgage on the disputed property and Z’s mortgage on the Melbourne property which she bought when she contracted to sell her Tasmanian property, as referred to in the opening scenes of the segment. There is no dispute that Z is the mortgagor of both properties.

Further, the ACMA considers ‘living it up at Z’s expense’ to be a turn of phrase consistent with the central facts presented in the segment as to the dispute between Z and the complainant.

On these bases, the ACMA finds that the licensee did not breach clause 4.3.1 of the Code in relation to the presentation of statement 2.

3. Reporter to Z: Do you fear that they will repossess this house?

Z: Oh yeah: And poss – this one and that one, I mean at the moment I actually don’t own either of them.

The complainant is that Z owns three houses and it is not clear which one she fears losing.

The ACMA is satisfied that, in the context of the segment in its entirety, this is an accurate statement of Z’s concerns about the consequences of her not being able to meet her mortgage payments.

Accordingly, the ACMA finds that the licensee did not breach clause 4.3.1 of the Code in relation to the presentation of statement 3.

Issue 2: Fair representation of viewpoints Relevant Code provisionNews and Current Affairs Programs


4.3.1 must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

FindingThe licensee did not breach clause 4.3.1 of the Code.

SubmissionsRelevant extracts from the submissions of the complainant and the licensee are at Attachments C and D respectively.

The complainant considers that the segment did not include a fair representation of the ‘true situation’.

ReasonsIn determining whether or not a licensee has represented a viewpoint fairly (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA takes into account that the Code does not require a licensee to present all material which it obtains.


The overriding requirement is that, where a viewpoint is included, it must be represented fairly. A program may omit material, but must not misrepresent a viewpoint in doing so.

The complaint is that there was an ‘unfair representation’ of the ‘true situation’ and that the program ‘unfairly’ compared the complainant with a family in the Gold Coast, who reportedly took over a Gold Coast mansion and were shown to be ‘throwing objects, yelling and screaming’.

The complainant referred to the following specific statements, made by the reporter, as being an ‘unfair representation’ of the situation:

Why are you staying in a house that you don’t own, you’re not paying rent?

Instead of settling up, [the complainant] and [her partner] stopped paying. For the past eight months they’ve been sitting pretty.

The complaint is also that the segment did not disclose that Z would not settle as she was claiming through her solicitor that she was owed more than the ‘correct’ amount. Additionally, the segment did not explore the ‘non completion of …two (2) other contracts’ (by previous purchasers) concerning this property.

The licensee submitted that:

We note the requirement to represent viewpoints fairly does not prevent a current affairs program from taking a critical stance on issues, which is not prohibited by the Code. The ACMA has previously acknowledged that current affairs programs “may, under the Code, take a certain view if they wish” and that these programs are “not required to present all or even opposing viewpoints on a matter being reported on.” However, in any event, contrary to the complainant’s assertion in her letter to the ACMA dated 12 December 2013, Today Tonight made several attempts to give the complainant an opportunity to comment, which were declined.

The ACMA notes that the segment took a critical stance on the issue and some of the language used by the program presenter and the reporter was negative and disapproving of the complainant. The ACMA also notes that it appears that the complainant was caught off guard by the reporter and camera crew’s presence.

Nevertheless, the ACMA does not consider that the licensee unfairly represented the complainant’s viewpoint.

It is noted that the reporter posed a question to the complainant about the situation and sought her view on the matter. For example:

Reporter: Why are you staying in a house that you don’t own, you’re not paying rent?

The complainant opted to not respond in those circumstances and did not present her viewpoint on the matter.

While the complainant considered this question to be an ‘unfair representation’ of the situation, as ‘tenancy’ is not the issue and it was ‘inflammatory and irrelevant‘, the ACMA is of the view that it was a legitimate question in the context of the complainant residing in a property, in circumstances where she had ceased making final payments towards its purchase.

The segment also established, through Z’s commentary, that the complainant had placed a ‘caveat’ on the property. This would signify to the viewer that the complainant had lodged a


formal notice in relation to any claims she and her partner had on the property at the time of recording the footage and that there was some legal dispute in terms of the amount owing.

The ACMA notes that the segment also included file footage of a family who reportedly ‘took over’ a property in the Gold Coast. Footage of this family shows them responding aggressively to a camera crew.

The transition to a discussion about the Gold Coast family was signalled by the reporter’s statement:

[The complainant] might be a bit of a ratbag, but at least she didn’t carry on like this lot.

The ACMA considers that the above remark clearly differentiated the complainant from the family in the Gold Coast, as it suggested that she did not behave in the aggressive manner depicted in the file footage.

Accordingly, the ordinary reasonable viewer would have understood that this footage was included to demonstrate extreme situations concerning property disputes and was not intended to suggest that the complainant’s behaviour was the same as that of the family on the Gold Coast.

On these bases the ACMA is of the view that the licensee did not breach clause 4.3.1 in relation to the presentation of viewpoints.

Issue 3: Material relating to a person’s personal or private affairs or which invades an individual’s privacyRelevant code provision

News and Current Affairs Programs


4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast;

4.3.5.1 subject to the requirements of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child’s parent or guardian) is obtained prior to the broadcast of the material;

FindingThe licensee breached clause 4.3.5 of the Code.

ReasonsIn assessing a segment’s compliance with clause 4.3.5 of the Code, the ACMA is assisted by its ‘Privacy guidelines for broadcasters, 2011’ which set out general principles for the consideration of alleged breaches of privacy provisions of broadcasting codes of practice (the Privacy Guidelines)3.

3 ACMA, Privacy guidelines for broadcasters, Dec 2011 http://www.acma.gov.au/webwr/_assets/main/lib100084/privacy_guidelines-dec2011.pdf


As set out in the Privacy Guidelines, the ACMA asks:

Was a person identifiable from the broadcast material?

Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?

If the answer to both of the above questions is yes, then there is a potential breach of clause 4.3.5 of the Code.

The ACMA will then consider:

Was the person’s consent obtained - or in the case of a child, that of a parent or guardian?

Was the broadcast material readily available from the public domain?

Was the invasion of privacy in the public interest?

If the answer to any of these questions is yes, then there will be no breach found.

The complaint is that:

[…] it has invaded my privacy by filming inside my house through windows and following me through to my bedroom. It has emphasised my motor car, number plate, address of property and put my animals in my care in danger. It showed a confidential contract with signatures leaving us open to identity theft.

The licensee submitted that:

… insofar as the images of the contract of sale and [the complainant] in her house are considered material relating to her personal or private affairs, their broadcast is justified by an identifiable public interest reason. The issue of residential property owners selling their property by means of private sale by means of partial payments is a legitimate topic of public interest. Many Australians engage in private sales of their property and this report serves as a cautionary tale regarding the risks to those residential property vendors who may consider structuring the sale of their property in this manner. Furthermore, the image of the contract of sale was directly relevant to the report as the financial structure of the property sale was the catalyst of this dispute. Additionally, any personal details appeared only momentarily as the focus was on the price payable, not the names on the contract. With specific regard to the images of [the complainant] in the house, this was included as it was directly relevant as evidence that [the complainant] was physically occupying the property. Further, [the licensee] submits that [the complainant] was well aware that she was being filmed (she was photographing the TT crew at the same time, as can be seen in the broadcast), nor was she filmed while being engaged in activities that would be considered to be highly sensitive or private in nature. Therefore [it] considers the report was broadcast in accordance with the privacy provisions of the Code.

Whether a person was identifiable from the broadcast material

A person is identifiable from the broadcast (including audio or visual material) if the person’s identity is apparent or can reasonably be ascertained.

The ACMA notes that the broadcast material contained the following verbal and visual information pertaining to the complainant’s identity:


various visuals of the complainant including footage of her taken through the window of the disputed property where she was living

visuals of the disputed property

verbal references to the complainant’s full name (by the program presenter and the reporter)

visuals of two pages from the contract of sale which included the complainant’s full name, signature and the address of the disputed property

the reporter’s announcement of the street address and suburb of the disputed property.

Accordingly, the ACMA is satisfied that the complainant’s identity and address would have been readily ascertainable from the broadcast.

Whether material was used that related to a person’s personal or private affairs

The segment presented two pages from the contract of sale, which included the complainant’s full name, the sale price for the disputed property, the complainant’s signature and the address of the disputed property which had been made clear in the broadcast was the complainant’s residential address.

The reporter also announced the name of the street and the suburb of the property.

The licensee has submitted that:

…any personal details appeared only momentarily as the focus was on the price payable, not the names on the contract.

In further submissions, the licensee has also argued that the information provided in the contract cannot be considered to be information relating to the complainant’s personal or private affairs and is readily available in the public domain as:

The information equally belongs to [Z] who is the registered owner of the property, agreed to its sale price and is a party to the contract. [Z] had previously listed the house for sale and consented to the publication of various photos of it and her asking price on internet real estate sites such as the one whose details appear below [URL to a real estate website].

Further, as the owner of the property, [Z] was able to consent to TNT broadcasting details of the property, including its location, tenancy status and sales price. As a person without any legal right to occupy the property, the complainant has no basis on which to resist the authorised broadcast of such information.

All of the information identified in paragraph 4 is contained in a document freely signed by the complainant and provided by her to [Z] with apparently no confidentiality clause or other restriction on its publication. Indeed, if the sale had proceeded as planned, the information contained in the contract would also be registered with the Land Titles Office and available for public inspection. It would be a perverse result if the complainant, having refused to perform and complete the contract but continuing to reside in the home without the owner’s consent, could avoid registration of the document and claim the information it contained was therefore “private”.

In addition, the complainant has previously consented to the disclosure of a copy of the contract, having herself attached it to the caveat which she lodged on the property in June 2013 in her capacity as “purchaser”. […]. It is apparent from the copy of the contract lodged with the caveat that:


The caveat was lodged by the complainant after she had been in default of the payment obligations under the contract for several months.

There are no restrictions on access to or publication of the information contained in the caveat.

The contract contained no confidentiality clause.

In previous matters, the ACMA has found that the broadcast of a person’s personal information such as a name and address or other identifying details without consent may be a breach of privacy even where such information has some limited availability. As indicated in the Privacy Guidelines, information need not be secret or confidential in order to be private. For example, the disclosure in a broadcast of a caller’s name and home address was found to be use of material relating to a person’s personal or private affairs.4

The ACMA does not accept the licensee’s argument that, in the absence of a confidentiality clause in the contract and with no restrictions on its publication, the information in the contract cannot be considered to relate to the complainant’s personal or private affairs.

In this case, the personal details appeared only momentarily and the emphasis was on the sale price of the property. However, the visual image of the pages from the contract was prominently displayed, and the disclosure of the complainant’s residential address was reinforced by the reporter’s announcement of the street and suburb name.

The ACMA does not accept that Z’s consent to disclosure of information relating to her own personal affairs as vendor of the property served as consent for the disclosure of the personal affairs of the purchaser. Further, although the property was owned by Z, details of the sale concerned not only her own, but the complainant’s personal affairs, as well as clearly identifying the complainant’s place of residence. If information relates to the personal affairs of two individuals then each person’s privacy interest must be respected.

The ACMA is therefore satisfied that the material used in the broadcast, including the disclosure of the complainant’s name and residential address in association with a contract of sale of property disclosing a financial transaction, related to the complainant’s personal or private affairs in the sense contemplated by clause 4.3.5.

Whether material was used that invaded a person’s privacy

The ACMA considers that an invasion of privacy may occur when there is an unwanted or uninvited intrusion upon a person’s private affairs or seclusion. The Privacy Guidelines state that:

A person’s seclusion may be intruded upon where:

he or she would have a reasonable expectation that his or her activities would not be observed or overheard by others; and

a person of ordinary sensibilities would consider the broadcast of these activities to be highly offensive.

Depending on the circumstances, this may include everyday activities and it will usually include sexual activities.

4 See investigation Report 2773 - http://www.acma.gov.au/theACMA/ACMAi/Investigation-reports/Radio-investigations/radio-operations-nsw-commercial-radio-investigations


http://www.acma.gov.au/theACMA/ACMAi/Investigation-reports/Radio-investigations/radio-operations-nsw-commercial-radio-investigations

http://www.acma.gov.au/theACMA/ACMAi/Investigation-reports/Radio-investigations/radio-operations-nsw-commercial-radio-investigations

The invasion must be more than fleeting. It is possible for this to occur in a public space.

In this case, the broadcast material included footage taken of the complainant in the property where she was living. Footage of the complainant in her home shows her speaking on the telephone and pulling down the blinds to obscure the filming of her. This footage was taken at close range and was frequent and prolonged within the context of the segment in its entirety.

In further submissions, the licensee has argued that:

The footage taken of the complainant in the home (it is not her home) does not depict her undertaking any activity or in such a way as would invade her privacy.

[…]

When the complainant enters the house, she remains for quite some time at the large front windows where she can easily be observed from outside. During that time, she chooses to engage with the camera crew and film them herself. She does not decide to move to a part of the house where she would not be visible but conducts her mobile phone conversation in full view of the cameras. Finally, the complainant lowers the blinds and of course from this point she is secluded and there is no further camera vision of her.

In circumstances where the complainant was living in the house without the permission of the owner, the owner had allowed the Seven crew to film the house and the complainant could have chosen to make herself invisible from the street front of the house, but chose not to until pulling her blinds:

The complainant would have no reasonable expectation that her activities would not be observed by others – especially given that she is aware of and acknowledges the presence of the camera crew and the reasons why they are there; and

No reasonable person would consider the broadcast of such mundane activities of a person effectively squatting in another person’s home to be “highly offensive”.

It is notable that the camera crew did not chase or harass the complainant or broadcast vision which revealed any detail about the interior of the home. […], the layout of the home and images of its various rooms is already in the public domain by virtue of [Z’s] attempts to sell the property.

The ACMA notes that the complainant did not willingly put herself into the public domain nor place herself in a position to be the subject of public comment. It was apparent from the footage that, under the circumstances, she did not wish to participate in an interview with the reporter and did not wish to be filmed for the segment.

While the complainant is shown to be taking photos of the reporter and camera crew from within the house, this does not appear to be for the purpose of engaging with the camera crew or inviting them to film and view her activities from within the house.

The ACMA is satisfied that, despite any ongoing dispute about its ownership, the complainant would have had a reasonable expectation that her activities in her place of residence would not be observed by others. As indicated in the Privacy Guidelines, this may include everyday activities. In this case, the complainant was removing herself from the reporter and camera crew and making calls within her home. The ACMA considers that a person of ordinary sensibilities would have considered the broadcast of footage of the complainant through the window of the property, and in the situation where she has chosen to not participate in an interview, to be highly offensive5.

5 As per the ACMA’s Privacy guidelines for broadcasters 2011, referencing Gleeson CJ in ABC v Lenah Games Meats 208 CLR 199


The ACMA does not consider that any prior publication of the layout of the house on a real estate website to be a relevant consideration. At the time of recording, it was clearly established that the complainant was living in the property in question and it was an occupied private dwelling.

The ACMA is therefore satisfied that the broadcast material intruded upon the complainant’s seclusion in more than a fleeting way.

Whether consent was obtained from the person

It is apparent from the footage that the complainant did not provide consent to be filmed.

Accordingly, the ACMA considers that consent was not provided by the complainant to broadcast material disclosing her personal information or the footage which intruded upon her seclusion.

Whether the broadcast material is readily available from the public domain

The ACMA is satisfied that the private contract of sale would not be available to the public without prior reference information, search effort and payment of a fee. It was therefore not readily available from the public domain.

Further, the images of the complainant in her place of residence, and which invaded her seclusion, were not available in the public domain.

Whether there is an identifiable public interest reason for broadcasting the material

The broadcast of private information or material that invades privacy, without consent, will not be in breach of the Code if there is an identifiable public interest reason for the material to be broadcast.

Whether something is in the public interest will depend on all the circumstances, including whether a matter is capable of affecting the community at large so that citizens might be legitimately interested in or concerned about what is going on.

The Privacy Guidelines identify a number of issues which may be in the public interest:

Public interest issues include public health and security; criminal activities; corruption; misleading the public; serious anti-social behaviour; politics; government and public administration; elections; and the conduct of corporations, businesses, trade unions and religious organisations.

The approach taken by the ACMA in relation to public interest is set out in the Privacy Guidelines:

Any material that invades a person’s privacy in the public interest must directly or indirectly contribute to the public’s capacity to assess an issue of importance to the public, and its knowledge and understanding of the overall subject.6 It should be proportionate and relevant to those issues, and not disclose peripheral facts or be excessively prolonged, detailed or salacious.

In further submissions, the licensee stated that:

[…] that there is a forceful public interest reason for broadcasting the information described above. Whilst TNT accepts that it may not always be in the public interest

6 This test is drawn from case law—Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 263; London Artists v Littler (1969) 2 QB 375 at 391


to disclose information regarding a person’s residential home, in the case of this particular report, the broadcast of details relating to the complainant is justified not only to illustrate the risks to vendors posed by vendor terms contracts where purchasers can default and remain in the home, but also in particular to make viewers aware of the identity of the complainant and therefore protect them from any repeat occurrences of the complainant’s conduct.

In addition, the broadcast of vision of the complainant inside the house is a salient reminder to land owners that once another party has taken up residence in a property, they are in a powerful position to exercise rights against the interests of the rightful owner.

[…]

The ACMA accepts that the broadcast of a report dealing with the issue of private property sales can raise matters of public interest and that there may be an identifiable public interest reason for a broadcast about that issue. However, the ACMA does not accept that there was a public interest reason to broadcast pages from the sale of contract that included the complainant’s full name, signature and address of the property for sale (being the complainant’s residential address) and the final payout amount.

As indicated above, the visuals of the pages from the contract were prominently displayed. In the circumstances of this broadcast, visuals of the pages of the contract with the complainant’s personal information did not, and could not, contribute to the public’s knowledge and understanding of such an issue.

Nor does the ACMA accept that showing prolonged visuals of the complainant within her home would have contributed to the public’s knowledge and understanding of the issue. While the complainant was aware of being filmed, this does not mean that she consented to the filming of herself within her home. As indicated above, it was apparent that she did not wish to be interviewed or filmed for the segment.

The ACMA considers that the key material points could have been made and the public interest purpose served without disclosing personal information, including the details of the contract of sale, and without showing footage that pried into the property where the complainant lives, intruding upon her seclusion.

In these circumstances, and in the absence of an identifiable public interest for the broadcast of the material specified above, the ACMA considers that the licensee has breached clause 4.3.5 of the Code.

Issue 4: Exercise special care using material relating to a child’s personal or private affairsRelevant code provision

News and Current Affairs Programs


4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast;


4.3.5.1 subject to the requirements of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child’s parent or guardian) is obtained prior to the broadcast of the material;

4.3.5.2 for the purpose of this Clause 4.3.5, licensees must exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child. The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which discloses sensitive information concerning the health or welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so;

4.3.5.3 “child” means a person under 16 years.

FindingThe licensee did not breach clause 4.3.5.2 of the Code.

ReasonsClause 4.3.5.2 of the Code recognises the vulnerability of children and requires licensees to ‘exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child’.

This clause also requires that ‘the consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which discloses sensitive information concerning the health or welfare of a child [...]’

The complaint is that:

It filmed a visitor to my house and her children without permission […]

The ACMA notes that the segment included footage of a female ‘visitor’ with two children and an infant child entering the property. The face of the infant child carried by the woman was obscured and the faces of the two older children were pixelated in the broadcast.

The ACMA also notes that the female adult and children were not named.

Given that there was no other identifying material in the broadcast concerning these individuals, the ACMA does not consider that their identity would have been ascertainable from the broadcast.

The ACMA also notes that the broadcast did not involve sensitive matters concerning the children that were filmed entering the property.

Accordingly, the ACMA is of the view that the licensee did not breach clause 4.3.5.2 of the Code.


Attachment ATranscript

Home Hijack

Presenter: We begin with a couple who have hijacked a beautiful waterside property after failing to honour an agreement to buy it. [The complainant] and her partner haven’t paid a cent since March, but [the complainant] seems to find the whole thing hilarious. While the owner who was forced to sell after a horrific car accident goes slowly broke. [The reporter] reports.

Z: I had a very severe head injury. I cracked open this orbit of my eye and so I’m almost blind in my right eye now.

Reporter: [Z’s] had a tough few years.

Z: I broke my back quite severely and had T3 and T4.

Reporter: First, there was the car accident, run off the road by a log truck.

Z: He came over the hill on my side of the road and that’s all I remember.

Reporter: Facing years of rehab she was forced to leave her idyllic Tasmanian hideaway in the sleepy hamlet of [name of town]. She put it on the market and bought a tiny bungalow in Melbourne.

Z: It’s just put a constant pressure on my life to the point where I could lose both houses. I could definitely lose this one.

Reporter: But all that pales into insignificance compared to the moment [Z] befriended this woman, [the complainant].

Z: We met walking on the beach and we got to know each other with the dogs together and that sort of thing, and we had the odd coffee together and they asked me up for dinner a couple of times.

Reporter: [Z] told us that after two failed attempts to sell the house, [the complainant] convinced [Z] to sell it to her and partner [name of partner], and that they agreed on a price of […]. [Z] says [the complainant], a wannabe lawyer, even arranged to draw up a contract of sale.

Z: Over a period of two years they would be paying monthly into two accounts that I have, and at the end of that time, pay a lump sum to finalise the agreement, the sale.

Reporter: How much did they owe you and when was it due to be paid?

Z: They owed me […] and it was due to be paid in my account in March when the contract finalised.


Reporter: But that’s when things turned sour. Instead of settling up, [the complainant] and [her partner] stopped paying. For the past eight months they’ve been sitting pretty. Squatting by the beautiful [name of river] on the aptly named [name of street], with their dogs and sports car. Living it up at [Z’s] expense, while [Z] falls further and further behind with both mortgages.

[at the property]

Reporter: Are you going to pay for the house [the complainant’s name]? I’m glad you think it’s funny because the actual owner is actually going to lose her house.

Reporter: Do you fear that they will repossess this house?

Z: Oh, absolutely, yeah. And poss - this one and that one, I mean, at the moment I actually don’t own either of them.

Reporter: And how’s this for irony, when we arrived to pose a few polite questions, we’re accused of trespassing. [The complainant] calls the police.

Why are you staying in a house that you don’t own, you’re not paying any rent?

Reporter: Not surprisingly, Tassie’s finest had little time for [the complainant’s] showboating.

Reporter: You think it’s funny. The person who you stole this from is going to lose her home [the complainant]. And you’re laughing. Really classy.

Reporter: [The complainant] might be a bit of a rat bag, but at least she didn’t carry on like this lot. The infamous [A] family took over this Gold Coast mansion in 2009. They too had an agreement to buy, but their cheque bounced. They stayed anyway.

[File footage of an Altercation with a camera crew on the street and in a home; Woman shouting: ‘Get out of here. Get out!’]

Reporter: After trashing the house, smashing two of our cameras, and assaulting our reporter, they eventually moved out. They’d done it before by the way, and surprise surprise they did it again. Albeit with fewer fireworks in Sydney.

[Reporter: Don’t touch the camera. Do not touch the camera. Don’t touch the camera!]

Reporter: The Gold Coast owner was eventually able to sell. Something [Z] can only dream of.

Z: I’ve been conned completely. She placed a caveat on my property which means that I can’t sell it to anyone at this point in time. So I can’t just tell them to get out of my house and you know, get somebody else in there and put it on the market.

Z’s son: [sign language and voice-over] Yeah she’s brave. She’s very determined. She’s struggled.


Reporter: [Z’] son [name of son] is deaf. He’s been caring for his mum since the accident.

Reporter: [Name of son], with everything Mum’s been through, do you feel like this is kicking her when she is down?

Z’s son: [sign language and voice-over] Yeah, pretty much I just really want to get them out of there. I just want to get rid of them full stop so that we can actually try and move ahead with our life and sell the house and do it the way that Mum wants to.

Reporter: If they’re watching this what would you say to them?

Z: Get out. Just get out. Because I’m coming to get you.

Presenter: [The reporter] there. And [Z’s] lawyer is desperately trying to negotiate a settlement with [the complainant] and [her partner]. We’ll let you know how it all pans out


Attachment BSome considerations to which the ACMA has regard in assessing whether or not particular content is factual material for the purposes of the broadcasting codes of practice

In practice, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.

The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.

The ACMA will first look to the natural and ordinary meaning of the language used.

Factual material will usually be specific, unequivocal and capable of independent verification.

The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.

Statements in the nature of predictions as to future events will rarely be characterised as factual material.

Statements containing hyperbole will rarely be characterised as factual material.

The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.

Where it is clear in the broadcast that an interviewee’s account is subjective and contestable, and it is not endorsed or corroborated, their allegations will not be considered as factual assertions.

Where an interviewee’s stance is separately asserted or reinforced by the reporter or presenter, or proof of an allegation is offered so that it becomes the foundation on which a program or a critical element of the program is built, it may be considered a factual assertion.7

Sources with expertise may be relied on more heavily than those without, in determining whether material is factual, but this will depend on:

o whether the statements are merely corroborative of ‘lay’ accounts given by other interviewees,

o the qualifications of the expert,

o whether their statements are described as opinion,

o whether their statements concern past or future events8 and

7 See investigation 2712; Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667; 8 See investigations 3066, 2961


o whether they are simply comments made on another person’s account of events or a separate assertion about matters within their expertise.


Attachment CComplainant’s submissions

The complainant submitted to the licensee:

This program has contravened the Code of Practice 4.3.5 & 4.3.1. As it has invaded my privacy by filming inside my house through windows and following me through to my bedroom. It has emphasised my motor car, number plate, address of property and put my animals in my care in danger. It showed a confidential contract with signatures leaving us open to identity theft. It filmed a visitor to my house and her children without permission and after she left, the 'journalist' opened the closed gate and attacked me verbally, shaking his fist at me on my glass front door after letting himself and his film crew into the property.

The complainant submitted to the ACMA:

[…]

The decision to continue to put this story to air was against Solicitor advice. Ch 7 was told not to proceed with putting their story to air, as it would not be in the best interest of the process that was in place.

[…]

Below their reply and my findings;

Para 4.

Requirement to represent viewpoints fairly (clause 4.3.1)

I referred to the section of the Code of Practice that your department felt was relevant to my issue. However, the reply is rather strange, to say the least. It states:

that clause 4.3.1 “does not prevent a current affairs program from taking a critical stance on issues, which is not prohibited by the Code. In fact, the ACMA has previously noted that current affairs program “may, under the Code, take a certain view if they wish” and that these programs are “not required to present all or even opposing viewpoints on a matter being reported on”.

I find that this is incredible! My reading of this is that the Code has no control over misleading and inflammatory reporting being put to air, in fact allows this!

May I ask in what circumstances ACMA allows this?

How ‘a critical stance on issues’ can be made without all the relevant information? How can a current affairs program ‘take a certain view if they wish’ without at least

knowing or having some idea as to the other ‘viewpoints’?

It is even stated that TT attempted to give... ‘you an opportunity to comment, however you declined to be interviewed’!

At what time was I given the opportunity to be interviewed?

1. When I was being yelled at...’squatter etc’, on the roadside out the front of my property or

2. When I was being yelled at when I had to help my client NOT guest into my property or

3. When the ‘crew’ let themselves into my property and put a camera into my window or


4. When a man with no identification, with closed fist, hammered on my GLASS door, yelling abuse at me?

5. Police were called and heard this action.

Para 5

Accuracy (4.3.1)

How can a ‘report’ be factual when all the FACTS are unknown?

Para 6

Privacy (clause 4.3.5)

The Code stipulates that broadcasters must not use material relating to a person’s personal or private affairs...other than where there is an identifiable public interest reason for the material to be broadcast.

1. What was an identifiable public interest reason? Is it based on interpretation?2. Why was it so important to emphasize my car and its number plates both verbally and

visually as, an identifiable public interest reason?3. Why was a reference to my animals so much, an identifiable public interest reason4. There is not a reasonable expectation that my client NOT guest would be filmed on

national TV, entering my property and when is that an identifiable public interest reason?

5. The entering of my property, when been told not to, is unlawful and is confusing with regard to the identifiable public interest reason? When does unlawful conduct override an identifiable public interest reason?

6. When does showing a person entering their bedroom present an identifiable public interest reason?

7. The showing of the contract was deliberately misleading and gave visual and recordable record of our signatures etc how could this be an identifiable public interest reason?

8. This dispute being an identifiable public interest reason...’is a cautionary tale for all current or potential property owners’ and...’Therefore, to the extent these images were relating to your private affairs, we believe there was a justifiable public interest in showing the material.’

At what point did this ‘view’ identify the processes that were being played out even when;

the Solicitor for the ‘aggrieved person’ the instigator of ch7’s breach of my privacy and the attack on my person, tried everything in his power to stop this ‘view’ from being televised and

ch7 were aware from the Solicitor, what they were putting to air was not in the best interest of anyone (an identifiable public interest reason?) and

there is full and complete evidence that the ‘view’ put forward by this show was incomplete, derisive, false by omission, dangerous to life and NOT an identifiable public interest reason.

Is it an identifiable public interest reason to incite a hate campaign, to alienate a person from the community and to conduct a media & community trial instead of allowing correct process to prevail?


The complainant subsequently submitted to the ACMA:

Today Tonight website printed story with photo of me with ‘HOUSE HIJACK’

Heading: Squatting nightmare on [name of street]

1. This visual statement showing me with a sign HOUSE HIJACK’ is inaccurate as it is a false representation of facts, the photo in lead up is not of property, in fact it is the water front further down the street and not a correct picture of the property in question; [the] property in question [is] not a waterfront property.

Definition of hijack; to steal; to seize by force or threat of force.

This property has not been stolen, it has been paid for according to the contract and was in the process of getting settlement, no force or threats of force, in fact [Z] made a threat of force on national television... I’m coming to get you!

2. ‘Few years’, this statement is inaccurate, as this woman has had this property on the market for over 7 years to my proven knowledge and has sold it at least twice before my contract. [Z] states...’After two failed attempts to sell the house...’proving we are not the only people that [Z] has contracted to purchase this property a proper interview would be enquiring about the non-completion of these two (2) other contracts. I have one (1) of these contracts, the purchasers previous to us and it is a vendor’s terms contract over 2 years, (they were in the property for 3 years) and same as mine.

3. ‘[The complainant] arranged to draw up a contract of sale’... this is inaccurate as [Z] told me that she did not know of a solicitor in Tasmania to draw up the contract, as she owed one [amount of money] and she could not afford to pay him.

She gave me the contract that [solicitor] had drawn up for the previous couple which is a vendor finance contract again and asked me if I could ‘arrange’ to use it to do a contract between us. I arranged a contract and gave it to her, [M] a former [bank] manager and son [R]. They made many changes including the price we offered, she had it for over a month before she brought it back with all the changes and demanded [amount of money].

4. ‘Stopped paying and sitting pretty’. This is an unfair representation of the true situation.

We requested on 9th March 2013, a 1 month extension or a new contract confirming payment of [amount of money], for a valuation that would allow us a better outcome with our refinance, an email 18/3/13 from [Z] stated;... ‘the best I can do settlement wise would be to receive [amount of money] immediately, we continue the rest of the contract as is and settle on the 30th of august this year being 2013’...

We immediately emailed a request as to what the extra [amount of money] was for and how did that affect our contract. We received no reply even after many emails requesting an answer. Legally our contract had finished and we needed a Contract of Sale made up by a solicitor to complete settlement. When she eventually appointed a solicitor and we wrote to him, he replied that he was not representing her. Once again, this was her 2nd solicitor refusing to act for her. Email attached

5. ‘We arrived to pose a few polite questions’...’ were accused of trespassing’. This is completely inaccurate, I am very aware of politeness and this was not that I do not believe yelling at me ...squatter, squatter in the middle of the road for all the


neighbourhood to hear and see, after I had offered this man some help, is ‘polite questions’!

As I did not know who he was and he was on the road, why would I accuse him of trespassing and if he was accused of trespassing, why, did he enter my property? Why did he, with camera crew wait until after my client left, surely he would know that it was illegal entry.

If he didn’t then when the police told them to move on and not to enter the property again or they will be called would be evidence enough, also police told me that they would patrol the area and they ch7, were not allowed to enter my property. It is interesting to note that at no time do I make any comment. Ch7 have made an unfair representation of the reality of the situation to the detriment of [Z] and myself.

6. ‘[The complainant] calls the police’; were ch7 monitoring my phone? This an assumption, one that was inaccurate, it was my husband. I had called the police the moment I went inside my home, long before they accosted my client at the gate. They were on their way but as ch7 was well aware, I live a long way from a police station and police were 45 mins away.

7. ‘Why are you staying in a house you do not own, you’re not paying any rent?’ this is an unfair representation, asserting there is a lease/rental agreement in place. Also it is inflammatory and irrelevant as it is not a tenancy as stated in contract SC clause 2.18.

8. ‘Not surprisingly Tassies finest did not have any time for [the complainant’s] showboating’. This is an inaccurate statement as I contacted the police regarding this statement and the Sgt in charge stated that this would not have been said to these people as they do not speak to media.

Also, showboating does not appear in the Macquarie Dictionary however, it states ‘show’; to cause or allow to be seen; exhibit; display; present. Boating; the use of boats, especially for pleasure; I was not the person doing either of these acts, in fact that person was [Z] doing the ‘show’.

9. Presenter states that ‘[The complainant] finds the whole thing hilarious...’ this is an inaccurate assertion, as photo behind her does not depict that. Yelling...’you think it’s funny, the person you have stole[n] this from is going to lose her home [the complainant] and your laughing.... really classy’; is unfairly representing the visual facts.

At no time did I present with a smile, more like a grimace and horror at the disgraceful abusive display these dishonourable people were playing out at my expense. It was not shown the fists being banged upon my large glass front door and closed fist being shaken at me clearly through all my large glass windows and doors.

10. ‘Eventually able to sell ...something [Z] can only dream of’. Inaccurate [Z] has been trying to sell this property for over 7 years and 2 other contracts of sale. Why have not these other contracts completed?

11. It was stated thata. ... ‘[The complainant] convinced [Z] to sell it to her and partner...[amount of

money]THEN it states

b. ‘A couple of nights later they called’...’how would you feel if we wanted to buy your house...’


These two statements contradict each other! Which did we do ‘convince her to sell it to us or ask her if she wanted us to ‘buy’ it from her? To the best of our knowledge neither of these statements is true.

12. The contract that was shown, for all the world to see, showed that we owed her [amount of money] and her statement to that effect says so... ‘They owed me [amount of money]...due to paid in March’. As stated... ‘[Z’s] lawyer is desperately trying to negotiate a settlement’, this is correct.

However, what [Z] was saying on TV [amount of money] correct but she would not settle as she was saying through her solicitor that we owed her [amount of money], which is very incorrect but not disclosed!

13. ‘...they are living it up at [Z’s] expense...as she falls further and further behind in both mortgages!’. This is inaccurate there is only one (1) mortgage according to the [bank] and the Default Notice dated 9th October 2013 effecting [sic] this property.

What ‘both’ mortgages? Special Clause 2.9 of the contract, that was displayed prominently on TV and if ch7 had read it properly; implies that [Z] is not allowed to put this property in jeopardy due to borrowings and We were of the understanding that there was no mortgage over this property, a Default Notice 0f 20th October 2013 from the [bank] brought this to my attention due to a caveat I have on property and to my knowledge now there is only one (1) mortgage that effects this property.

She now fears they will repossess her house’... ‘This one and that one; I mean at the moment, I actually don’t own either of them,’ [Z] said. Inaccurate as she states in her email to me that she owns 3 houses according to Centrelink, which one is she worried about losing? Email attached

14. [Z] was inaccurately represented as an Australian whereas she is an American citizen.

15. ‘[The complainant] might be a bit of a rat bag...’ it is unbelievable that this representation of me could even resemble anything near fairness. How does showing footage of man fighting in the street and comparing me with

the ‘infamous [A] family; inaccurate, the facts, I have a police clearance and an advocate for [a] Community Legal Centre also having worked in confidential government departments.

who took over a gold coast mansion 2009; inaccurate, this property is a dump, not a mansion, in fact until we made extensive repairs to plumbing, sewerage and electrics, was near enough to being condemned

cheque bounced, what cheques have I given [Z], inaccurate and these people had done it before; inaccurate, this intimates that I am have

done this before when and where? This statement is malicious libel.

In fact, ‘Rat bags’ do not live up to their agreements, as we have proved we did even [Z] states;...’two years paying monthly...the sale’.

Being called a ‘rat bag’ and compared to some disgusting scenes of people throwing objects, yelling and screaming was is inaccurate ‘reporting’.

Dictionary definition; a rascal; rogue. Rascal; a base dishonest person. Rogue; dishonest person. I have a police clearance and was a volunteer legal advocate, have been involved in confidential government departments etc and at no time have I been proven to be dishonest person.


16. [Z] claims on TV that I am a ...’wannabe lawyer’, this is inaccurate. At no time have I presented myself as a person that can practice law, in fact have not continued my law degree due to the fact that I did not want to be a lawyer. I have however […] a very good knowledge of property, contract and business law but unfortunately not criminal law.

17. [Z] stated we had been paying monthly into...2 accounts...this is inaccurate and completely false as the solicitors have proof that we have only paid into ONE(1) account, and have no idea of any other ‘accounts’ she has.


Attachment DLicensee’s submissions

The licensee responded to the complainant on 12 December 2013:

[..]

You have raised concerns that the Today Tonight segment did not broadcast factual material accurately and represent viewpoints fairly (clause 4.3.1) and invaded your privacy (clause 4.3.5). We have responded to your concerns under the following headings below.

Requirement to represent viewpoints fairly (clause 4.3.1)

The requirement to represent viewpoints fairly does not prevent a current affairs program from taking a critical stance on issues, which is not prohibited by the Code. In fact, the ACMA has previously noted that current affairs program "may, under the Code, take a certain view if they wish" and that these programs are "not required to present all or even opposing-viewpoints on a matter being reported on." Therefore, to the extent that your complaint is that your point of view in relation to your dispute was not included in the report, we note that this is not an obligation under the Code. That being said, we should note that Today Tonight attempted to give you an opportunity to comment, however you declined to be interviewed.

Accuracy (4.3.1)

With regards to accuracy in relation to your concerns that the program contravened clause 4.3.1, we note that your complaint does not identify any instances of factual inaccuracy. We consider the report was factually accurate and therefore broadcast in accordance with our obligations under the Code.

Privacy (clause 4.3.5)

You have raised concerns that the segment invaded your privacy. The Code stipulates that broadcasters must not use material relating to a person's personal or private affairs, or which invades an individual's privacy other than where there is an identifiable public interest reason for the material to be broadcast.

You have also raised concerns that your guest and her children were filmed entering and leaving the property. Having regard to these circumstances, there is a reasonable expectation that your guests would be observed by others and therefore we do not believe this would be an intrusion upon their seclusion as contemplated by the Code. Furthermore, the adult guest was not identified by name and the faces of the child guests were sufficient blurred.

With regards to your concerns that you were filmed in your house and that the report contained an image of the contract of sale, we consider that images of your occupation of the property and the contract for that property are directly relevant to the report. Further, we consider it in the public interest that we report on this particular dispute as this dispute is a cautionary tale for all current or potential property owners. Therefore, to the extent these images were relating to your private affairs, we believe there was a justifiable public interest in showing the material.

[…]


The licensee submitted to the ACMA on 13 June 2014:

[…]

The complainant alleges that elements of the story did not comply with clauses 4.3.1 [accuracy], 4.3.5 [privacy] and 4.3.5.2 [child’s personal or private affairs] of the Commercial Television Industry Code of Practice 2010 (the Code). These clauses are addressed under the following headings below.

Compliance with 4.3.1 (broadcast factual material accurately and represent viewpoints fairly)

It is unclear from the ACMA’s letter as to whether it requires SCA to comment on its compliance with clause 4.3.1 as it relates to each individual claim in the complainant’s submission to the ACMA dated 15 May 2014 or if the ACMA is only seeking comments on SCA’s compliance with clause 4.3.1 as it relates to the ACMA’s two specific queries on the accuracy of, respectively, the term “House Hijack” and the reporter’s statement “when we arrived to pose a few polite questions, we’re accuse of trespassing”.

Whilst we believe a number of the claims in [the complainant’s] submission have no basis, we have nevertheless addressed them all below, adopting the numbering in that submission. The “House Hijack” and “trespassing” allegations are addressed at paragraphs 1 and 5 respectively below.

Factual accuracy

1. The photo of [the complainant] in the story’s introduction accompanied by the words “HOME HIJACK” showed her against a background of a hillside of houses by the water. There was no one identifiable house in that photo. Shortly afterwards a camera pans to a vista of the hillside of houses, including a large property, as well as a panoramic shot of a dinghy on the water, accompanied by a voiceover referring to the “the sleepy hamlet of Clarence Point”. We submit that the footage and the voiceover are a general representation of the town of Clarence Point, not a specific reference to [Z’s] house. Accordingly, we submit that the broadcast in that respect was accurate.

SCA rejects the complainant’s assertion that the “Home Hijack” graphic during the introduction of the report suggests that the house was stolen or that it was seized by force or threat. Clause 4.3.1.1 provides that “an assessment of whether the factual material is accurate is determined in the context of the segment in its entirety”. Upon viewing the segment in its entirety, it is clear to the ordinary reasonable viewer that this is a legal dispute regarding [the complainant] occupying a property without honouring the full payment as required in contract of sale for the property. Furthermore, the “Home Hijack” graphic is immediately put into context as the voice over from the presenter during the graphic clarifies the nature of the report’s title:

Presenter: “We begin with the couple who have hijacked a beautiful waterside property, after failing to honour an agreement to buy it. [The complainant] and her partner haven’t paid a cent since March, but [the complainant] seems to find the whole thing hilarious, while the owner who was forced to sell after a horrific car accident goes slowly broke.”

SCA submits that the complainant’s literal interpretation of the word “hijack” is unreasonable in this context. The title “Home Hijack” was clearly used in the colloquial sense, as in, “to take over” in the same way one might say someone “hijacks” a debate and SCA does not


consider it conveys to the ordinary reasonable viewer [the complainant] stole or seized the property by threat or force.

2. It appears the statement [the complainant] is referring to here is the reporter’s statement “[Z’s] had a tough few years”. The reporter then went on to explain why: a serious car accident with a logging truck which left her with serious and ongoing injuries, which is accompanied by images of her written off car and in traction in hospital; then the reporter states “facing years of rehab, she was forced to leave her idyllic Tasmanian hideaway in the sleepy hamlet of […]. She put it on the market, and bought a tiny bungalow in Melbourne”. We submit that all of this is accurate, and that the further comments made by [the complainant] are not relevant.

3. The statement complained of is TT’s reporter saying “[The complainant], a wannabe lawyer, even arranged to draw up a contract of sale.” We see no difference in meaning between “arranged to draw up a contract for sale” (as put by the reporter) and “arranged a contract” (as put by [the complainant]). Furthermore, it appears from [the complainant’s] later comment “they made many changes [to the contract] including the price we offered”, that [the complainant] must have prepared some form of contract. The fact that it might have been based on an earlier contract is irrelevant.

4. The statement complained of is TT’s reporter saying “Instead of settling up, [the complainant and her husband] stopped paying, and for the past 8 months they’ve been sitting pretty”. SCA submits this is an accurate statement having regard to the facts known at the time of the broadcast: the contract of sale clearly shows the final settlement date being 12 March 2013, and the broadcast took place on 12 November 2013, exactly 8 months later, at which time [the complainant] was still occupying the house. [The complainant] submits that she asked for an extension to the settlement date, and attaches [Z’s] email response. This clearly shows that [Z] was prepared to grant an extension to 30 August (some 5 months later) on the condition that [the complainant] pay an additional [amount of money] towards the purchase price, but [the complainant] appears to have misunderstood that email, and presumably the parties did not agree on the extension on that basis, therefore it is reasonable to conclude that the 13 March 2013 settlement date was still applicable.

5. The statement complained of is TT’s reporter saying “When we arrived to pose a few polite questions, we were accused of trespassing.” We reject [the complainant’s] allegation that our reporter “yelled squatter squatter in the middle of the road for all the neighbourhood to hear and see” [sic]. TT’s reporter denies being anything but polite. He indicated that when they entered the property to request an interview, [the complainant] asked them to leave (through a window) and told them she would call the police, who subsequently arrived. Accordingly we submit our reporter’s statement is accurate in both the “polite” and “trespassing” respects.

6. The statement complained of is TT’s reporter saying “[the complainant] calls the police.” As she did, in fact, call the police, we do not accept that there is any issue of accuracy here.

7. The statement complained of is TT’s reporter saying “Why are you staying in a house you do not own, you’re not paying any rent?” An ordinary reasonable viewer would infer from this that it would be reasonable for someone living in a house owned by an unrelated third party, to pay some form of compensation to the 3rd party owner. Whether that payment is characterised as vendor finance, or rent, or instalments, is not factually material.


Additionally, [the complainant] was, by this question, given an opportunity to answer, but chose not to do so. In light of the above, we submit that the statement was accurate.

8. The statement complained of is TT’s reporter saying “Not surprisingly Tassie’s finest did not have any time for [the complainant’s] showboating.” At no stage in the broadcast was it suggested that the police themselves made a statement to the above effect. The statement is clearly a colloquial reference by the reporter to [the complainant’s] actions in trying to evade the reporter’s questions, including smiling out at the reporter, closing all the blinds, waving and taking footage of the reporter on a video camera.

9. The statements complained of were the introduction by the host that “[the complainant] finds the whole thing hilarious” and the reporter saying “Are you going to pay for the house [the complainant’s name]? I’m glad you think it’s funny because the actual owner is going to lose her house” and “You think it’s funny? The person who you stole this from is going to lose her home [the complainant’s name] and you’re laughing…really classy.” We submit that both of these statements are accurate depictions of what is clearly shown in the broadcast: [the complainant] smiled at the reporter through her window before lowering her blinds, she also appeared to be laughing when she was ushering her friend into her home when the reporter was attempting to ask her questions.

10. The statement complained of was the TT reporter saying “The Gold Coast owner was eventually able to sell, something [Z] can only dream of.” We do not understand the point the complainant is making here. [Z] has indeed been unable to sell her property as it has a caveat on it, taken out by [the complainant]. The fact that it has been on the market twice previously and has not sold, only serves to confirm the accuracy of this statement.

11. The statement complained of was the TT reporter saying “[The complainant] convinced [Z] to sell it to her and her partner…” [The complainant] then refers to another quote “A couple of nights later they called…how would you feel if we wanted to buy your house?” – but that quote is not in the broadcast. Therefore we do not follow [the complainant’s] line of reasoning here. We do, however, argue that our statement accurately presents the fact that [Z] agreed to sell her house to [the complainant].

12. The complainant appears to be suggesting that what was broadcast concerning the amount owing on the contract was factually correct, but that subsequently [Z] made a claim contrary to what was in the contract. The licensee’s obligation is to broadcast factual material accurately, having regard to the circumstances at the time of preparing and broadcasting the program. [The complainant] is referring to conduct after the broadcast of the program.

13. The statement complained of was the TT reporter saying “They are living it up at [Z’s] expense, while [Z] falls further and further behind in both mortgages.” We submit this is factually accurate. [The complainant] appears to misunderstand that of the two mortgages referred to, one relates to the house she is living in, and the other to [Z’s] Melbourne bungalow.

The statement next complained of was the TT reporter saying “She [Z] now fears they will repossess her house…” and [Z] saying “This one and that one; I mean at the moment, I actually don’t own either of them.” We maintain this is factually accurate. Again, [the complainant] appears to have misunderstood [Z’s] email. There is no mention of a 3rd property in that email. Whilst [Z] indicates “Centrelink has been assessing me as having two investment properties”, this is presumably because she is legally bound to pay mortgages on both.


14. We cannot identify anywhere in the broadcast where [Z] was represented as an Australian.

15. The statement complained of was the TT reporter introducing another segment by saying “[the complainant] might be a bit of a ratbag, but at least, she didn’t carry on like this lot”. Clearly, the purpose of the introduction was to contrast [the complainant’s] conduct with that of the [A’s] family’s conduct, by the use of “but at least she didn’t carry on like this lot…” wording. We therefore reject [the complainant’s] assertion that the comparison suggests that she engaged in the level of conduct demonstrated in the segment on the [A] family.

16. The statement complained of was the TT reporter calling [the complainant] “a wannabe lawyer…” . We consider that this is accurate having regard to the following: (i) [the complainant] did in fact prepare/arrange a first draft of the contract of sale; (ii) she says herself in this paragraph of her complaint that she has “a very good knowledge of property, contract and business law…” and further, in paragraph 15 that she has been “an advocate for [a] Community Legal Centre [sic]” and “was a volunteer legal advocate”.

17. We do not believe that the reference to paying money into two accounts, rather than one, is a fact which is material enough to warrant a complaint. Whether the money was paid into one account or two, is irrelevant to the story, which centres around [the complainant] failing to make further payments on a house she is staying in but does not own.

Fair representation of viewpoints

We note the requirement to represent viewpoints fairly does not prevent a current affairs program from taking a critical stance on issues, which is not prohibited by the Code. The ACMA has previously acknowledged that current affairs programs “may, under the Code, take a certain view if they wish” and that these programs are “not required to present all or even opposing viewpoints on a matter being reported on.” However, in any event, contrary to the complainant’s assertion in her letter to the ACMA dated 12 December 2013, Today Tonight made several attempts to give the complainant an opportunity to comment, which were declined. First, TT’s reporter has advised that he approached her at the gate of the property, at which time, when asked if she could confirm she was [the complainant], she did not identify herself and directed him to a house further along the street (this is not in the broadcast); then, after establishing that she was indeed [the complainant] and entering her property to request an interview, she asked (through her window) the reporter to leave. Despite posing numerous questions to her from outside the property (as can be seen in the broadcast), [the complainant] declined to comment.

Compliance with 4.3.5 (privacy)

Clause 4.3.5 states licensees “must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast”.

Personal Information

SCA notes that the complainant has identified a range of images from the broadcast as material relating to her personal or private affairs. First, SCA rejects that the vision of [the complainant’s] guest, car and pets are personal information. This is material that is fully capable of being attained by any member of the public walking down her street and therefore SCA does not consider this material to be private in nature.


Identifiable public interest reason

SCA considers that insofar as the images of the contract of sale and [the complainant] in her house are considered material relating to her personal or private affairs, their broadcast is justified by an identifiable public interest reason. The issue of residential property owners selling their property by means of private sale by means of partial payments is a legitimate topic of public interest. Many Australians engage in private sales of their property and this report serves as a cautionary tale regarding the risks to those residential property vendors who may consider structuring the sale of their property in this manner. Furthermore, the image of the contract of sale was directly relevant to the report as the financial structure of the property sale was the catalyst of this dispute. Additionally, any personal details appeared only momentarily as the focus was on the price payable, not the names on the contract. With specific regard to the images of [the complainant] in the house, these was included as it was directly relevant as evidence that [the complainant] was physically occupying the property. Further, SCA submits that [the complainant] was well aware that she was being filmed (she was photographing the TT crew at the same time, as can be seen in the broadcast), nor was she filmed while being engaged in activities that would be considered to be highly sensitive or private in nature. Therefore SCA considers the report was broadcast in accordance with the privacy provisions of the Code.

Compliance with 4.3.5.2 (child’s personal or private affairs)

Clause 4.3.5.2 states “licensees must exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child. The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which disclosed sensitive information concerning the health or welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so”.

The report did not involve sensitive matters relating to a child or a member of a child’s immediate family. However, additional measures were taken so that brief images of children appearing in the report were blurred to ensure their faces could not be identified, and their names and that of their parent or guardian was not published.

[…]

In further submissions to the ACMA on 13 August 2014, the licensee stated:

[…]

At the outset, TNT strongly disagrees with the ACMA’s preliminary view on privacy, considering the facts of this case. It seems patently unfair and not in the spirit of clause 4.3.5 that a person who has failed to complete a property purchase and who thereafter refuses to vacate the house on that property, can somehow claim that her privacy has been infringed by the display of her in that house (which she does not own) and by the display of a contract for sale of the house (details of which, but for her default, would be publicly available on Land Titles Office records, and likely also listed in the real estate sales listings of local newspapers).

Clause 4.3.5 (privacy)

1. Clause 4.3.5 provides that a licensee “must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast”.


2. For the reasons identified below, TNT submits that the material broadcast:

did not relate to [the complainant’s] personal or private affairs; and did not invade [the complainant’s] privacy.

Further, that even were the ACMA to disagree with us on the above, there was a strong and identifiable public interest reason for its broadcast.

3. Clause 4.3.5 prohibits the use of two distinct categories of private material:

Material relating to a person’s personal or private affairs; and Material which invades an individual’s privacy,

and then provides an exception where there is an identifiable public interest reason for the material to be broadcast.

First category – material relating to a person’s personal or private affairs

4. The ACMA identified the following material which it considered fell into this category:

(a) Two pages of the contract of sale, which included:

the complainant’s full name the complainant’s signature the sale price for the property the address of the property (the complainant’s place of residence)

(b) The reporter’s announcement of the name of the street and the suburb in which the complainant resides.

5. The page of the contract containing the complainant’s name and signature appeared on screen for approximately 1.5 seconds and was quite blurry such that no reasonable viewer would be able to have obtained any additional information from the image other than the information which was stated elsewhere in the program, that is, that the complainant’s name was [name of complainant] and that she had signed a contract for sale for the house.

6. The sale price of the property and the full address was contained on a different page of the contract which was shown on screen twice for slightly longer periods – approx. 3 seconds and 5 seconds respectively. However, the address itself was in small print at the bottom of the screen, in circumstances where, on both occasions, the focus was on the sale price, which was dynamically highlighted in yellow and therefore would naturally have drawn an ordinary reasonable viewer’s attention. In fact, the writer had to watch the footage several times, and use the pause function, in order to notice the address on screen.

7. In any event, regardless of the time on screen and the prominence or otherwise of the different elements, the question remains whether the information identified in paragraph 4 above is properly to be considered as relating to the complainant’s personal or private affairs. In the circumstances of this broadcast, TNT respectfully submits that the answer is no, for the following reasons:

(a) The information equally belongs to [Z] who is the registered owner of the property, agreed to its sale price and is a party to the contract.[Z] had previously listed the house for sale and consented to the publication of various photos of it and her asking price on internet real estate sites such as the one whose details appear below:


http://www.homehound.com.au/listing/withdrawn/tas/tasmania/launceston-northern/clarence-point-launceston-northern/104-sunset-boulevard-clarence-point-tas-7270-2/ (screen shot at Attachment A).

(b) Further, as the owner of the property, Ms [Z] was able to consent to TNT broadcasting details of the property, including its location, tenancy status and sales price. As a person without any legal right to occupy the property, the complainant has no basis on which to resist the authorised broadcast of such information.

(c) All of the information identified in paragraph 4 is contained in a document freely signed by the complainant and provided by her to Ms [Z] with apparently no confidentiality clause or other restriction on its publication. Indeed, if the sale had proceeded as planned, the information contained in the contract would also be registered with the Land Titles Office and available for public inspection. It would be a perverse result if the complainant, having refused to perform and complete the contract but continuing to reside in the home without the owner’s consent, could avoid registration of the document and claim the information it contained was therefore “private”.

(d) In addition, the complainant has previously consented to the disclosure of a copy of the contract, having herself attached it to the caveat which she lodged on the property in June 2013 in her capacity as “purchaser”. A copy of the caveat obtained from the Land Titles Office, which attaches the contract for sale, is at Attachment B. It is apparent from the copy of the contract lodged with the caveat that:

i.The caveat was lodged by the complainant after she had been in default of the payment obligations under the contract for several months.

ii.There are no restrictions on access to or publication of the information contained in the caveat.

iii.The contract contained no confidentiality clause.

(e) Further, by reason of the matters in paragraphs (a) and (d) above, the material comprising the complainant’s full name, signature, the sale price for the property, the address of the property, including the name of the street and the suburb, are readily available from the public domain.

8. Accordingly, in light of the above, TNT submits that the information identified by the ACMA in paragraph 4 is not material relating to the complainant’s personal or private affairs, within the meaning of clause 4.3.5 of the Code.

Second category - material which invades a person’s privacy

9. The ACMA then identified the following material which it considered fell into this category:

Footage taken of the complainant in her home and surrounds The footage of the complainant in her home shows her speaking on the

telephone and pulling down the blinds.

10. The footage taken of the complainant in the home (it is not her home) does not depict her undertaking any activity or in such a way as would invade her privacy.

11. When initially approached and asked if she was [the name of the complainant], [the complainant] did not identify herself and instead directed the camera crew to another individual at another location. When the reporter established that it was in fact her he was looking to interview, he returned to the property, entered by the front gate, and requested an interview, during which time he was accompanied by a camera crew filming on the property. She did not directly refuse to be interviewed, and did not at that stage ask him to leave, but rather waved and smiled at the camera crew both from outside and inside the house, as the reporter asked her questions and as the camera continued rolling. A short while later, she told the reporter she was calling the police, at which time the crew


immediately left the property. The rest of the footage is filmed from a respectful distance on the public street with a normal camera (not a telescopic lens).

12. When the complainant enters the house, she remains for quite some time at the large front windows where she can easily be observed from outside. During that time, she chooses to engage with the camera crew and film them herself. She does not decide to move to a part of the house where she would not be visible but conducts her mobile phone conversation in full view of the cameras. Finally, the complainant lowers the blinds and of course from this point she is secluded and there is no further camera vision of her.

13. In circumstances where the complainant was living in the house without the permission of the owner, the owner had allowed the Seven crew to film the house and the complainant could have chosen to make herself invisible from the street front of the house, but chose not to until pulling her blinds:

i. The complainant would have no reasonable expectation that her activities would not be observed by others – especially given that she is aware of and acknowledges the presence of the camera crew and the reasons why they are there; and

ii. No reasonable person would consider the broadcast of such mundane activities of a person effectively squatting in another person’s home to be “highly offensive”.

14. It is notable that the camera crew did not chase or harass the complainant or broadcast vision which revealed any detail about the interior of the home. As discussed above, the layout of the home and images of its various rooms is already in the public domain by virtue of [Z’s] attempts to sell the property.

15. TNT therefore submits that the information identified by the ACMA in paragraph 9 is not material which invades the complainant’s privacy, within the meaning of clause 4.3.5 of the Code

Other material

16. The ACMA also identified the following information “pertaining to the complainant’s identity”, but did not specify which of the two categories in which it considered that information to fall, or indeed whether it fell into neither:

Visuals of the house in which the complainant resides; and Verbal references to the complainant’s full name (by the program presenter and

the reporter).17. For the reasons already outlined, TNT respectfully submits that neither of the above

pieces of information could, in the circumstances of this broadcast, be regarded as relating to the complainant’s personal or private affairs, or as invading the complainant’s privacy

Identifiable public interest

18. For the reasons identified above, TNT’s view is that the information broadcast neither related to the complainant’s personal or private affairs, nor invaded her privacy. However, even were the ACMA to maintain its preliminary view on this point, TNT submits that there is a forceful public interest reason for broadcasting the information described above. Whilst TNT accepts that it may not always be in the public interest to disclose information regarding a person’s residential home, in the case of this particular report, the broadcast of details relating to the complainant is justified not only to illustrate the risks to vendors posed by vendor terms contracts where purchasers can default and remain in the home, but also in particular to make viewers aware of the identity of the complainant and therefore protect them from any repeat occurrences of the complainant’s conduct.


19. In addition, the broadcast of vision of the complainant inside the house is a salient reminder to land owners that once another party has taken up residence in a property, they are in a powerful position to exercise rights against the interests of the rightful owner. Viewers with an interest in receiving details of the complainant’s name, address and image, together with the details of the failed sale include:

Home buyers generally, especially those in the Tasmania broadcast area where the complainant is likely to attempt to relocate;

Home buyers with an interest in purchasing [Z’s] home and who will want to be assured that they are able to take unfettered and exclusive possession of the home; and

Other people with commercial dealings with the complainant, especially credit providers.

20. In circumstances where the complainant was living in [Z’s] home without permission and contrary to the terms of a contract drafted and signed by the complainant, no reasonable person would regard it as unusual, unfair or offensive for television current affairs cameras to broadcast images of the complainant outside and inside [Z’s] home, together with the details of that contract


Documents

· Web view(1969) 2 QB 375 at 391 It should be proportionate and relevant to those issues, and not disclose peripheral facts or be excessively prolonged, detailed or salacious. In