BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court:
CIV 2004-485-1299  PDF930.17 KB

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Complaint under s.8(1)(c) of the Broadcasting Act 1989
One News and Late Edition – item about a Medical Practitioners Disciplinary Tribunal hearing – complainant gave evidence – name suppressed – complained that she was identifiable from audio of voice and visual of part of her body – item included complainant’s occupation – alleged breach of privacy

Findings
Standard 3 (privacy) – complainant identifiable because job description given together with visuals and audio – name suppression order given by court or tribunal not in itself grounds for privacy complaint – name suppression in this case given to all witnesses to ensure that they could continue to function effectively as Board employees – disclosure of B A’s role as witness in these circumstances highly offensive – upheld

Order
Compensation to the complainant of $1500 under s.13(1)(d) of the Broadcasting Act

This headnote does not form part of the decision.

Broadcast

[1] The release from Kew Hospital’s Mental Health Unit of a patient who later killed his mother resulted in charges against Dr Peter Fisher before the Medical Practitioners Disciplinary Tribunal (MPDT) in Invercargill. BA gave evidence before the Tribunal. The Tribunal suppressed her name. The hearing was covered in an item on One News and Late Edition broadcast on TV One at 6.00pm and 10.30pm on 17 October 2003. In covering part of the evidence she gave, the item noted BA’s occupation, showed her hands and the midsection of her torso, and included an audio of her voice.

Complaint

[2] BA complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item on One News at 6.00pm and repeated on Late Edition at 10.30pm breached her privacy. Pointing out that the item described her occupation within the hospital structure, BA said she was one of only two such people employed by the District Health Board. In view of that fact, she wrote, and that the item used her voice and visuals of her hands and torso, she had been clearly identified to her client group and to the professionals with whom she worked.

Standards

[3] Under s.4(1)(c) of the Broadcasting Act 1989, which is repeated in Standard 3 of the Free-to-Air Television Code of Broadcasting Practice, broadcasters are required to maintain standards consistent with the privacy of the individual. In determining privacy complaints, the Authority applies the Privacy Principles which it has developed. Privacy Principle i) is relevant to this complaint and it reads:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

Broadcaster's Response to the Complainant

[4] TVNZ considered that the complaint raised two distinct issues: one, the name suppression granted to the complainant, and two, the breach of privacy complaint.

[5] Dealing with the name suppression issue, TVNZ argued that it was not the Authority’s role to rule on whether the Tribunal’s suppression order had been breached. That, it contended, was a matter for the Tribunal. TVNZ advised that it had not received a complaint from the Tribunal.

[6] Turning to the privacy complaint, TVNZ assessed BA’s concerns under each of the Privacy Principles. Essentially, as the broadcast did not disclose highly offensive facts, did not involve intentional intrusion, and did not name or ridicule the complainant, TVNZ recommended that the Authority decline to uphold the complaint. It concluded:

It is our view that BA’s identity was not revealed in this item and that her privacy was not invaded. We accept that family members and colleagues, who already knew that BA was giving evidence to the Medical Practitioners Disciplinary Tribunal, may have recognised her but submit that any such recognition was confined to a very small group indeed already familiar with the facts revealed.

Complainant’s Final Comment

[7] In response to TVNZ’s point that action for breach of the suppression order rested with the Tribunal, BA recalled that she had spoken to a representative of the prosecution after the broadcast who had told her that it would be taken up with the Tribunal which would probably remind the media of their responsibilities.

[8] BA acknowledged that the item did not show her face. However, it had contained her voice and showed her hands on which she had been wearing some distinctive jewellery. That information, she averred, had enabled a “wider client group” to identify her. She added:

I have since been approached by clients who have recognised me by my jewellery, my body shape and also my voice. I have also been recognised by other agencies with which I network, none of these people were aware of my involvement with this case prior to the news footage.

[9] BA also advised that she was the first of at least eight witnesses with name suppression, but none of the others had appeared on One News.

[10] Emphasising that the breach of privacy had caused considerable stress and anxiety to her and her family, BA stated that she had been on stress leave and now, on her doctor’s advice, had resigned.

Authority's Determination

[11] The members of the Authority have viewed a tape of the One News item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

[12] The Authority’s first task when determining a complaint that a broadcast involves a breach of privacy is to decide whether the complainant is identifiable from the broadcast. The Authority has ruled that the complainant must be identifiable beyond immediate family and close acquaintances who may reasonably be expected to be aware of the activities for which the complainant has received publicity.

[13] On this occasion, the Authority concludes, the complainant was identifiable to people with whom she worked – both fellow professionals and patients – who were not previously aware that she had given evidence before the Tribunal. The Authority reaches this conclusion in view of the fact that her job title was given in the item and, as she has pointed out, she was at the time only one of two people employed by the Southland District Health Board in that position. The Authority considers that she would have been distinguishable from the other employee in the same position given the audio of her voice which was included in the item. Furthermore, the complainant has advised that she has been recognised both by clients and by others with whom she worked.

[14] Having decided that the complainant is identifiable, the Authority’s next task is to ascertain whether the broadcast involved a breach of her privacy. The Authority considers that Privacy Principle (i) is applicable to BA’s complaint. It reads:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

[15] BA advised that her name was suppressed by the MPDT, before which she gave evidence, when it heard charges against Dr Peter Fisher. BA did not advise the Authority why the MPDT had suppressed her name when she gave evidence before it, and the Authority emphasises that it is not its task to enforce the MPDT’s name suppression order. It agrees with TVNZ that whether or not the broadcast breached the MPDT’s order and, if so, whether action should be taken against TVNZ, is a matter for the MPDT to determine.

[16] In determining whether the broadcast breached Privacy Principle i), the Authority has referred to the MPDT’s decision¹ to ascertain the reason for BA’s name suppression. Para 9.4 of that decision stated that it was unusual for the MPDT to grant name suppression to witnesses, but it had decided to grant suppression because of a number of “unique” features, which included (Para 9.4.2):

All witnesses have been subject to intense pressure as a result of the event giving rise to the Tribunal’s hearing. It became apparent to the Tribunal that most witnesses employed in the Southland MHS were very distressed by this case and that their ability to function as effective members of the Southland MHS was at risk unless they received the “protection” of name suppression.

[17] Privacy Principle i) requires the disclosure of the private facts to be highly offensive and objectionable in order for a breach to occur. There has been some uncertainty in the past as to whether it is the disclosure of the facts, or the facts themselves, which must be objectionable. In many instances these two matters are identical.

[18] BA’s complaint highlights the difference. It is difficult to envisage a situation where the giving of evidence to a statutory tribunal is “highly offensive and objectionable” to the extent that its disclosure amounts to a breach of privacy. The Authority does not accept that BA’s participation in the MPDT proceedings meets that criterion. Nevertheless, taking into account the “offensiveness” of disclosure rather than the “offensiveness” of the facts, and in light of the reasons given by the MPDT for suppression of all the witnesses’ names, it is possible to understand why BA considered that the public disclosure of her participation could transgress the standard.

[19] In the recent Court of Appeal decision Hosking v Runting et al,² Gault P and Blanchard J explained which aspect was relevant when they wrote (at paragraph [127]):

We consider that the test of highly offensive to the reasonable person is appropriate. It relates, of course, to the publicity and is not part of the test of whether the information is private.

[20] The Authority considers that the news item complained about disclosed the fact that BA had given evidence to the MPDT, and disclosed that information beyond her immediate family and others who could reasonably be expected to know of her participation. The item did not disclose her identity to all viewers throughout New Zealand, but the information disclosed enabled her to be identifiable to some fellow professionals in Invercargill and to some clients who did not know of her role in the MPDT inquiry. TVNZ, correctly in the Authority’s opinion, did not argue that there was a public interest in revealing BA’s identity.

[21] Taking into account the reasons given by the MPDT for name suppression – that BA would be “at risk” unless she received the “protection” of name suppression – the Authority accepts that the disclosure was highly offensive. It notes that the risk identified by the MPDT in granting name suppression was realised, in that BA’s ability to continue to function as an effective member of the Southland MHS was jeopardised by the broadcast which identified her, albeit to a limited number of people. The Authority concludes that, as the broadcast disclosed private facts and their disclosure was highly offensive and objectionable, the broadcast breached Standard 3 of the Television Code.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on TV One on One News and Late Edition on 17 October 2003 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[22] Having upheld a complaint, the Authority may impose orders under ss 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[23] In its submission, TVNZ advised the Authority that BA had been identified by name and her occupation given in a One News item broadcast on 28 November 2001 which reported the Coroner’s Inquest into the death of the woman killed by the patient. TVNZ also explained that it had taken care to ensure that the coverage of the MPDT hearing was appropriate.

[24] Referring to Hosking v Runting et al (supra), TVNZ raised the question as to whether the Authority should reconsider the complaint because of the way it had interpreted Privacy Principle (i). TVNZ argued that, in the Authority’s jurisdiction, the phrase “highly offensive” applied to the facts disclosed and not to the disclosure.

[25] The Authority has considered carefully TVNZ’s submission for the complaint to be reconsidered. It has decided not to do so. In Decision No: 2001-121, the Authority agreed with the broadcaster’s decision (TV3) that disclosure that a person had been adopted breached her right for privacy and in Decision No: 2001-028, the Authority upheld a complaint that disclosure of a young man’s suicide by Radio 531 PI was highly offensive to the man’s father. As a further example, the Authority refers to Decision No: 1999-229–230 which involved a broadcast by TVNZ. The programme involved footage which disclosed that the complainant’s young daughter had been interviewed in a police station. The Authority upheld the complaint that the disclosure of the daughter’s identity was not essential to the programme and, by doing so, the broadcast was a clear breach of Privacy Principle (i).

[26] BA argued strongly against any order which would involve further publicity. At the time of the Coroner’s Inquest, she said, the witnesses had been “on the same side”. Now, she added, there were marked divisions in Invercargill about whether the MPDT hearings should continue and, she said, only one of her former colleagues at the Southland MHS would speak to her.

[27] The Authority agrees with BA that an order which would require TVNZ to broadcast any reference to this decision is entirely inappropriate. It accepts that she found the broadcast of the news item in which she was identified both humiliating and distressing. She advises that she has left her job with the Southland MHS. Nevertheless, the Authority also takes into account TVNZ’s efforts to ensure that the item complied with the MPDT’s name suppression order.

[28] To avoid any misapprehension, the Authority stresses that it is not its task to enforce any order made by the MPDT, and that it is not doing so. It reiterates its finding that the item broadcast on One News on 17 October 2003, by describing facts which BA had a reasonable expectation would remain secret and the disclosure of which was highly offensive, contravened Standard 3 of the Television Code of Broadcasting Practice.

[29] When it upholds a complaint that a broadcast has breached the privacy of an individual, the Authority may make an order for compensation up to a maximum of $5,000. Taking into account all the circumstances of the current complaint, and the submissions received with regard to the imposition of an order, the Authority considers that an order for compensation of $1,500 is appropriate.

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay to BA the sum of $1,500 within one month of the date of the decision by way of compensation for breach of her privacy.

The order for the payment of compensation shall be enforceable in the Invercargill District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
17 June 2004

Appendix

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

1.    BA’s Formal Complaint to the Broadcasting Standards Authority – 18 November 2003
2.    TVNZ’s Response to the Broadcasting Standards Authority – 12 December 2003
3.    BA’s Final Comment – 5 February 2004
4.    TVNZ’s Submission in regard to an Order – 14 May 2004
5.    BA’s Submission in regard to an Order – 3 June 2004

¹Medical Practitioners Disciplinary Tribunal Decision No: 266/03/109D
²CA101/03 PDF317.33 KB, 25 March 2004