BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item about armed robbery at a Burger King restaurant – interviewed one of the hostages – image was blurred – allegedly unfair and in breach of privacy

Findings
Standard 3 (privacy) – hostage not identifiable in the broadcast – no private facts disclosed – not upheld

Standard 6 (fairness) – hostage consented to the interview – not unfair – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 27 January 2009, reported on an armed robbery at a Burger King restaurant in Auckland in which five staff had been held hostage. The reporter stated that "a female hostage told 3 News she kept reliving the moments she thought would be her last, and she still can’t bear to be identified". The woman was shown three times, out of focus and behind a flower in the foreground, recounting her experience and describing how she felt. The woman's name was not revealed in the item.

Complaint

[2]  RJ Moore made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item was unfair to the woman interviewed and breached her privacy. Despite her request that she not be identified, the complainant said, "the 'blocking out' was superficial: the worker could have been recognised by friends, colleagues, and, more disastrously, by offenders and their friends". Mr Moore considered that this would have added to the woman's trauma.

[3]   With regard to Standard 3 (privacy), the complainant argued that, as the woman was traumatised and the events were very recent, "there was a right to anonymity which was denied", particularly as she was a primary witness and might be required to appear at court proceedings. There could therefore be threats made against her, he said, due to her being identified in the item.

[4]  For the same reasons, the complainant maintained that Standard 6 (fairness) had been breached.

Standards

[5]   TVWorks assessed the complaint under Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[6]   The broadcaster stated that in all privacy complaints it must first decide whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. In this case, the woman interviewed was not identified either by name or visually, TVWorks said. It maintained that her features were sufficiently blurred such that mere acquaintances and strangers would not have been able to identify her. TVWorks asserted that the Authority has previously ruled that "a person is not identified if the individual is identifiable only to family and close friends who would be reasonably expected to know about the matter dealt with in the broadcast".

[7]   Even if the woman was identified, the broadcaster said, the item did not disclose any private facts about her in a manner that an objective reasonable person would find highly offensive. The subject discussed the incident of the armed robbery only in general terms and did not reveal any private information, TVWorks said. The broadcaster concluded that Standard 3 (privacy) did not apply in these circumstances.

[8]   Looking at Standard 6, TVWorks considered that the woman had been treated fairly in all respects. It maintained that she had agreed to be interviewed on the condition that her identity was obscured, and this was achieved. The broadcaster noted that the woman herself had not complained either immediately after the broadcast or at a later date. While TVWorks appreciated the empathy and concern the complainant displayed for the person involved, it was satisfied that she had been treated fairly and therefore found that Standard 6 was not breached.

Referral to the Authority

[9]  Dissatisfied with TVWorks' response, Mr Moore referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant considered that TV3’s approach to pixellation was inconsistent and questionable, and that it was intrusive and unfair to interview the woman so soon after being involved in a very traumatic event.

Authority's Determination

[10]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

[11]  When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast.

[12]  In Decision No. 2005-026, the Authority stated that in order for an individual's privacy to be breached, that person must be "identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast" (see also Decision No. 2004-070).

[13]  The Authority points out that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could "reasonably be expected" to know the personal information discussed in the item - for example, details of an individual's drug use might be something that is hidden from even the closest family and friends (see Decision No. 2004-106).

[14]  On this occasion, the image of the hostage involved in the robbery was blurred, and the item disclosed that she worked at an Auckland Burger King restaurant. In the Authority's view, it was likely that friends and family of the hostage, as well as co-workers and perhaps regular customers, would have been able to identify her in the broadcast. However, it also considers that anyone who was able to identify the woman would also reasonably be expected to know about the robbery, and the fact that she was one of the hostages involved.

[15]  The Authority considers that the woman's appearance was sufficiently masked such that she would not have been identifiable to anyone beyond those people who already knew her, and were already aware of the incident.

[16]  Accordingly, the Authority concludes that no breach of the woman’s privacy occurred, and it declines to uphold the Standard 3 complaint.

Standard 6 (fairness)

[17]  Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. Mr Moore argued that the item was unfair to the woman interviewed because her right to anonymity was denied.

[18]  The Authority notes that the item made it clear that the woman had consented to be interviewed, on the condition that her identity was masked. As stated above under its consideration of Standard 3, the Authority is of the view that the broadcaster adequately concealed the woman's identity. Accordingly, it concludes that the woman was not treated unfairly, and it declines to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
8 July 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.         R J Moore’s formal complaint – 3 February 2009
2.        TVWorks' response to the complaint – 25 March 2009
3.        Mr Moore's referral to the Authority – 30 March 2009
4.        TVWorks' response to the Authority – 29 April 2009