Ben Affleck in Cheticamp: The use of surveillance camera images and privacy rights

The complainant, Daniel Sokolov, thought CBC violated the rights of the movie star when it published video of him (or someone who looks a lot like him) after he was spotted at a Cape Breton gas station and caught on the security camera.

COMPLAINT

CBC News in Nova Scotia published 33 seconds of a gas station surveillance video that purported to be the actor Ben Affleck. The story that accompanied it on CBCNews.ca, entitled “Ben Affleck spotted in Cheticamp, surprises gas station manager,” explained that a delighted manager of a local gas station thought a man who came to his gas station to fill up and buy a drink was the Hollywood star. The star spotting created a bit of a local buzz, and the manager shared the images recorded on the gas station surveillance camera.

You thought it was an invasion of privacy and therefore a violation of journalistic policy for CBC to have published the video. You thought a description of the event would have been just as effective, and would not be sensational, as you believe this story was:

The only purpose of that CBC NS [Nova Scotia] publication I can fathom are “simple entertainment” and “running after public curiosity”. I do not deem these objectives to be worthy of a CBC newsroom.

Even if CBC’s view differs, there would have been ways to “entertain” or quench “curiosity” without publishing the illegally released surveillance video

You believe that the gas station manager broke the law when he shared the video images, and that CBC was encouraging him in this illegal action when it published the material:

It was a deliberate act by CBC that multiplied the spread of the video, and thus multiplied the privacy violation that had occurred. Such conduct must not be tolerated. Also, it awarded the gas station’s proprietor with publicity. He will be encouraged to violate privacy rules again, if he may gain another minute of fame for himself and his business. CBC must not condone the use of its resources to such ends.

Second: In the specific case, Mr. Affleck was travelling in private capacity and even wearing a tuque low into his face, so that he may not be recognized easily.

When CBC management explained that the use of video, illegal or not, is evaluated in each case, you agreed that it might be in the public interest to run illegal video but that this surely did not meet the test:

I understand and support that the CBC (re)publishes secret or illegally released material from time to time. CBC must not stop doing that. However, such publications must be justified in each individual case. This involves careful weighing of the competing interests.

In a case like this, these interests would be

a) an individual’s privacy interests

as well as

b) the public interest in not rewarding violations of law with positive

publicity

on the one hand, and

c) CBC’s interest in achieving a journalistic goal

on the other hand.

You asked me to check CBC program policies to see if it was a violation to name a specific brand in a news story when it was not relevant to understanding and a generic reference would have been as useful. You were concerned this could be perceived as an endorsement of the product, in this case Gatorade.

MANAGEMENT RESPONSE

The Executive Producer of News and Current Affairs in Nova Scotia, David Pate, replied to your concerns. He emphasized that he appreciated that there are privacy concerns and the “need to protect people from unwarranted intrusion into their lives.” He added that decisions about those issues are a daily reality in the newsroom.

He explained how the decision was made in this case and why he did not believe it violated CBC Journalistic policy:

In this case, we treated the submitted video as we would consider any video, audio or picture sent to us from a member of the public. It has always been acceptable in journalism to use privately-acquired material - whether it be cell phone video of an accident, still pictures of a public event or audio of a conversation. This falls within the guidelines of CBC’s Journalistic Standards and Practices. The decision on whether to use submitted material entirely depends on its context and interest. We do not use everything that is sent to us for a variety of reasons, ranging from relevance to taste. Each decision is made on its merits.

In this case, he said, the video had already created a lot of interest locally in Cheticamp as well as further afield.

He agreed that there was merit to your point that the gas station manager may have violated privacy laws, “but that would require Mr. Affleck to lay a complaint with the Federal Privacy Commissioner.” He explained that media outlets, including CBC, are entitled to use the video regardless because it is protected under the right to publish news.

Finally, he told you there was no policy restriction on reporting the brand of sports drink Mr. Affleck bought at the gas station store. In this case he said providing the detail that Mr. Affleck bought a purple Gatorade added interest to the story, and was not an endorsement of the product.

REVIEW

I agree with you that this type of reporting is not the highest expression of journalism. It is, however, a completely legitimate human interest story. A major movie star is spotted in an out of the way location, giving a thrill to the man who served him. News is defined by what is new, unusual, about people and celebrity, and has interest for a broader audience. There is nothing wrong, as you put it, to provide “simple entertainment.” Not all news has to have great significance. Any news site, newspaper or broadcast has a mix of the lofty and meaningful and information critical for making informed decisions, and lighter fare.

CBC Journalistic Standards and Practices has policy on privacy. These are the principles:

We exercise our right of access to information and our freedom of expression within the context of individual rights. One of these is the right to privacy.

In situations involving personal suffering and pain, we balance the public’s right to know against individual human dignity.

We disclose information of a private nature only when the subject matter is of public interest.

Without limiting the meaning of public interest, we work in the public interest when we reveal information that helps our audience make decisions about matters of public debate and when we expose illegal activity, anti-social behavior, corruption, abuse of trust, negligence and incompetence, or a situation that poses a risk to the health and safety of others.

Some aspects of privacy are protected in law. It varies from province to province or territory; federal statutes cover some areas.

CBC journalists must be familiar with the legal aspects of privacy or, when unsure, seek legal guidance.

The footage was not shot from a hidden camera, which has its own set of rules. A security camera is out in the open.

Journalistic judgment is about weighing competing imperatives – in this case Ben Affleck’s privacy rights versus the news and entertainment value of telling the story, and being part of the conversation around an event. The imperative of having people come to your news site is a legitimate and honest part of the calculation. There is 33 seconds of really bad quality video. Although you say the story would be the same without it, it would not – especially in the day and age of ubiquitous camera phones where video of almost anything is an expectation. As for Mr. Affleck’s or any other celebrity’s expectations of privacy, that horse is well and truly out of the barn. You are right that is probably why he wore the tuque. He was in a public space and was recorded by a visible camera. It is not nearly as clear cut as you believe that the use of this video was an illegal act. It certainly was not illegal for CBC news to publish it.

This story was a bit of entertainment with no real harm to Mr. Affleck. It did not reveal anything embarrassing or put him in a compromised situation. It revealed his preference for a certain brand of sports drink. Which brings us to your concern about the mention of the brand name Gatorade. There is no policy that would forbid the mentioning of a brand name. Reporting is about details and information – that was a piece of it. It is a stretch to see this as an endorsement in any way.

The story and the decision to publish it can’t be judged outside the context of the norms of news practice. Celebrities and celebrity sightings have always been news. And in this era of social media and the ability of anyone to create that news, it is a legitimate choice for CBC News to do so. You may prefer that they didn’t but that doesn’t make it a violation of policy.

Esther Enkin
CBC Ombudsman