TELEVISION NEW ZEALAND LIMITED V K W HC AK CIV-2007-485-001609

TELEVISION NEW ZEALAND LIMITED V K W HC AK CIV-2007-485-001609

Standard 5 objectively requires accuracy in factual reporting; the Broadcasting Act does not impose a legal onus of proof on broadcasters or complainants — the BSA must decide complaints on available information and may seek its own evidence; the BSA erred by requiring TVNZ to prove accuracy and by resolving factual...

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Citation
openlaw-ec5c5b38_b3b5_4ba9_ab47_0ecb45c7b71e.pdf
Parties
Appellant/applicant: Television New Zealand Limited; Respondent/second Respondent: K W; First Respondent: Broadcasting Standards Authority
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 December 2008
Procedural Posture
Appeal and Judicial Review Under the Broadcasting Act 1989 / Reserved Judgment on Appeal and Judicial Review (decision Delivered)
Outcome
Appeal and judicial review allowed in part; BSA determination that complaint was justified set aside insofar as it was based on the errors identified; order for costs in favour of the Crown set aside; further orders on payments and costs deferred for memoranda
Legal Topics
Accuracy Standard (standard 5), Privacy Principles (iii) and (vi), Onus of Proof and Evidential Burden, Use of Covert Surveillance/hidden Cameras, Section 14 and S5 BORA Proportionality Analysis, Natural Justice and Procedural Fairness, Judicial Review of Administrative Determinations
Broadcasting Law Privacy Law Administrative Law Human Rights (bill of Rights) Accuracy Standard (standard 5) Privacy Principles (iii) and (vi) Onus of Proof and Evidential Burden Use of Covert Surveillance/hidden Cameras +3 more

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Parties

Television New Zealand Limited

Appellant/applicant

K W

Respondent/second Respondent

Broadcasting Standards Authority

First Respondent

Procedural Posture

Appeal and Judicial Review Under the Broadcasting Act 1989 / Reserved Judgment on Appeal and Judicial Review (decision Delivered)

Legal Issues

  1. 1 Whether Standard 5 requires objective accuracy or only reasonable efforts to ensure accuracy
  2. 2 Whether the Broadcasting Standards Authority or the broadcaster bears the onus of proof
  3. 3 Whether the available evidence supported the BSA's finding that the premises were a brothel

Ratio Decidendi

Standard 5 objectively requires accuracy in factual reporting; the Broadcasting Act does not impose a legal onus of proof on broadcasters or complainants — the BSA must decide complaints on available information and may seek its own evidence; the BSA erred by requiring TVNZ to prove accuracy and by resolving factual disputes against TVNZ when material evidence (reporter's report of 'extras', website evidence known to a council officer, and Aldred affidavit) was not properly considered; on the facts the covert filming was intrusive but not offensive to an ordinary person and thus did not breach Standard 3; the public interest defence is assessed by reference to the footage itself though...

Court Disposition

Appeal and judicial review allowed in part; BSA determination that complaint was justified set aside insofar as it was based on the errors identified; order for costs in favour of the Crown set aside; further orders on payments and costs deferred for memoranda

Orders

  • Appeal and judicial review allowed
  • BSA decision upholding complaint set aside insofar as based on material errors of fact and procedure