BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) and section 8(1)(c) of the Broadcasting Act 1989
Holmes – item about ongoing Family Court proceedings concerning custody of a child – father interviewed anonymously and gave details of evidence and proceedings – brief visuals of baby – mother believed that as baby was identifiable, she was also identifiable – personal details broadcast about her – some allegedly inaccurate – child shown without mother’s permission – alleged breach of privacy of mother and baby – item allegedly unbalanced, unfair and inaccurate – broadcaster allegedly failed to maintain standards consistent with the maintenance of law and order

Findings
Standard 2 (law and order), Standard 4 (balance), Standard 5 (accuracy), Standard 6 (fairness) – referral outside statutory time limit – s.9(1) of the Broadcasting Act – no jurisdiction – referral not accepted

Standard 3 (privacy) – majority – complainant and baby identified – prima facie breach of privacy principle (i) – broadcast of private facts about complainant and baby not in public interest – consent given for baby, but broadcast not in best interest of the child – upheld; minority – no identification – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] The story of a young father who was seeking custody in the Family Court of his three-month-old daughter, who was in the custody of her mother as a result of an interim order of the court, was recounted in an item broadcast on Holmes on TV One on 5 November 2003, beginning at 7.00pm.

[2] It was reported that the mother admitted being a smoker of “P” (pure methamphetamine), and that her drug use had continued since the child’s birth. It was also reported that since the mother had obtained interim custody of the child, she had been required to take weekly drug tests, and that the results of these tests had been “negative”. It was also alleged in the item that the complainant’s flatmate was working as a prostitute.

[3] The father’s face was masked, and his name was not revealed in the item. The item included partial shots of the three-month-old baby’s face including eyes, nose and mouth.

Complaints

[4] Through her lawyer, the child’s mother complained to the Broadcasting Standards Authority that the item breached her privacy and the privacy of the baby. She also complained that the broadcast breached the broadcasting standards relating to balance, fairness, accuracy and the maintenance of law and order.

[5] The Authority accepted the direct referral of the privacy complaint under s.8(1)(c) of the Broadcasting Act. It also advised the complainant that complaints about broadcasting standards other than privacy had to be made to the broadcaster in the first instance. The Authority advised that the broadcaster would respond directly to the complainant on matters other than privacy. (As the Authority was unable to accept the referral of the standards complaint, it has not summarised the correspondence about it: see paragraphs [24] to [26].)

Privacy Complaint

[6] In her privacy complaint to the Authority, the complainant submitted that her privacy had been breached by the broadcast of details of her “very stressful” Family Court proceedings. She maintained:

• In light of the matters disclosed and the photographs of her child which were broadcast, her identity had been disclosed.
• The nature and extent of her drug use was disclosed when there was no public interest in the disclosure of this information.
• It was incorrect to state that she had failed numerous drug tests.
• Pictures of the child, for whom she was sole guardian, were screened without her permission.

[7] The complainant asserted her right to:

… the benefit of s.27 and s.27A of the Guardianship Act 1968 to the effect that it affords an appropriate level of privacy to Family Court litigation of this nature.

Broadcaster's Response to the Authority

[8] TVNZ recommended that the Authority decline to uphold the privacy complaint.

[9] Noting the complainant’s concern that details of the case had been reported in the item, TVNZ maintained that the item had reported the outcome, rather than the details of the proceeding. TVNZ referred to two High Court cases which it considered supported its view that it had not breached the prohibition on reporting proceedings of the Family Court contained in s.27A of the Guardianship Act.

[10] TVNZ did not accept that the mother was identified given the images of the child contained in the item. People who knew both the mother and the child well enough to make the link, it added, would not have learnt anything they did not already know.

[11] TVNZ also submitted that it was unrealistic to suggest that the use of “P” was an intensely personal matter. Disclosure of use of “P” and its impact on custody issues was a matter of public interest and would not be highly offensive and objectionable to reasonable people. As no-one was identified, TVNZ noted, no-one had been ridiculed or abused by the item.

[12] TVNZ maintained that it was “well known” that the meaning of the comment in the item that the mother had had a number of negative drug tests was that, unlike a positive test, no drugs had been detected.

[13] Acknowledging that the complainant’s permission had not been obtained before the broadcast of images of the baby, TVNZ said it had obtained the father’s consent. In any event, no-one was identifiable in the item, TVNZ claimed.

[14] TVNZ also argued that the broadcast of the story was “clearly a matter of public interest”.
The Complainant’s Response to the Broadcaster’s Report

[15] In her response to TVNZ’s report on the privacy complaint, the complainant listed eight matters disclosed during the broadcast which she insisted were details, rather than a report of the outcome, of her Family Court case. Two cases from the Family Court were cited which supported the complainant’s view that the prohibition under s.27A extended beyond the evidence given to include the facts and the circumstances of a case.

[16] As for the identity of the child, the complainant conceded that only people who knew the family would be able to identify the baby. However, it was submitted that it did not necessarily follow that people who knew the mother would be aware of the Family Court litigation or the details of her alleged drug use.

[17] The complainant also contended that her use of “P” was highly offensive and objectionable information. It was noted that she had not been prosecuted in regard to her drug use.

[18] The complainant reiterated her view that the use of the phrase “negative drug tests” would mean to the reasonable viewer that she had failed the tests and that drugs had been detected.

[19] The complainant did not accept that the father had the right to consent to the broadcast of pictures of the child. She reiterated that she was the child’s sole guardian, and referred to a decision of the Authority where caution was said to be necessary when consent was given on behalf of a child.

Broadcaster’s Further Letter

[20] In response, TVNZ dealt with each of the points made by the complainant:

• Arguing that the complainant had “missed the point”, TVNZ said any item broadcast on television or any press article might contain details of what may have been said or produced at a particular Court hearing, but that did not make the item “a report of proceedings”.
• Reiterating the conclusion advanced in the cases it had cited earlier, TVNZ observed that the Family Court cases noted by the complainant omitted reference to the High Court cases it had cited which were the decisions of a superior court. Moreover, the cases noted by the complainant were distinguishable from the ones it had cited.
• TVNZ did not accept that footage of the three-month-old baby made the baby or the complainant identifiable generally. Moreover, it noted that the complainant accepted that the baby would not have been identifiable by people who did not know the family. TVNZ repeated what it described as a “realistic” contention, that people who already knew the mother would have been aware of the Family Court proceedings.
• TVNZ reiterated its argument that privacy did not attach to the complainant’s use of “P”.
• TVNZ also repeated its view that the public were well aware of the difference between a positive and negative drug test.
• TVNZ reiterated that in the circumstances the father was entitled to give consent to the broadcast of the images of an unidentifiable baby.

Complainant’s Further Letter

[21] The complainant in her response submitted:

• Noting that the Family Court was a specialist jurisdiction, the complainant argued that its view of the interpretation of s.27A of the Guardianship Act was correct, adding:

Significantly, the legislation does allow for certain reports, provided the Court’s leave is obtained. In this case, TVNZ neither sought nor obtained leave; nor did they approach the mother regarding the article.

• The father was not the guardian of the child and care of the baby at a particular time did not carry with it the right to give consent to the broadcast of images of the baby.

Further Correspondence about the Smith Decision

[22] The complainant provided the Authority with a copy of Solicitor General v Smith (unreported, Wellington High Court, 24 March 2004), which she submitted supported her view that TVNZ had breached s.27A of the Guardianship Act.

[23] TVNZ contended that the Authority should not consider the Smith decision, but should confine its deliberation to the legal precedents which existed at the time of the broadcast. It also argued that the Smith decision was distinguishable on the facts.

Authority’s Determination

[24] The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

[25] The complainant sought name suppression in view of matters canvassed in the broadcast and in her complaint. The Authority agrees that it is appropriate that the complainant’s name should be suppressed.

Standards Complaint

[26] The response from TVNZ to the complaint about standards (other than privacy) was dated 17 December 2003. In that letter, TVNZ advised that if the complainant wished to refer her complaint to the Authority, she had to do so within 20 working days of receipt of that letter. Section 9(1) of the Broadcasting Act prohibits the Authority from accepting a referral of a complaint after this time period has expired.

[27] The Authority received a letter from the complainant about her privacy complaint on 2 February 2004. If this letter had constituted a referral of the standards complaint it would have been received within the appropriate time limit. However, the letter was not clear and the Authority sought clarification from the complainant about whether she intended to refer her complaint about standards other than privacy. The Authority was advised by telephone that she did not intend to do so at that stage. When the Authority sought written confirmation that there was no referral, it received a letter dated 14 April 2004. This letter purported to refer the standards complaint to the Authority.

[28] The Authority has no discretion to receive a complaint which is out of time. As the 14 April referral was received outside the 20 working day time limit, the Authority must decline to accept the referral.

Privacy Complaint

[29] Standard 3 of the Free-to-Air Television Code of Broadcasting Practice provides:

Standard 3 Privacy

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

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).

[30] The relevant Privacy Principles read:

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.

vi) Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Identification

[31] Before considering the specific allegations contained in the privacy complaint, the Authority’s first task is to ascertain whether the complainant or her daughter were reasonably identified in the item to which the complaint refers.

[32] On this occasion, the Authority notes that the complainant said she was identifiable (and, by implication, her baby was also identifiable) in view of the matters that were disclosed in the item and the visuals shown of the baby. She acknowledged that she would be not identifiable by those who did not know her family. However, she maintained that the people who could have identified her would not necessarily know the details which were disclosed in the item. The complainant also said she had been contacted by some people who had identified her through the visuals of her daughter.

[33] The Authority notes that there were no pictures of the complainant in the item. The complainant argued that she was identifiable solely through the pictures of the baby which were screened. The Authority also notes that TVNZ had taken obvious care with the nature and type of the visuals of the baby shown. The visuals which were broadcast were fleeting and did not reveal more than parts of the baby’s face and body.

[34] The Authority is divided in its opinion about whether the baby was identified. After considering the visuals of the baby included in the item and in particular the shot from the lower face to the eye and taking into account the complainant’s submissions about identification, a majority of the Authority concludes that the baby and therefore the complainant would have been identifiable to a circle including family, close friends and acquaintances of the complainant. However, the majority considers that it is unlikely that all those who were in the group of people who could have identified the complainant and her baby would have known about the personal information discussed in the item (for example, details of drug use).

[35] A minority (Paul France) does not agree. The minority considers that the small group of people who might have been able to identify the complainant and the baby were likely to be those who knew about the matters disclosed in the broadcast. In the minority’s view, it is likely that any identification of the complainant and her baby would have required some knowledge of the facts which were broadcast, in order to link the limited visuals in the item to the complainant and her baby. The minority notes that there was no evidence provided by the complainant which suggested that she was actually identified by anyone who was not already aware of the circumstances disclosed in the broadcast. Accordingly, the minority concludes that Standard 3 (privacy) was not breached.

Privacy Principle (i)

[36] Having concluded that the complainant and baby were identified by the broadcast, the majority now considers whether the item potentially breached their privacy. Privacy principle (i) provides:
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.

[37] In this case, the majority considers that private facts were broadcast which the ordinary person would find offensive. These facts included the disclosure of unproven allegations about the use of ‘P’ by the complainant and the effect it might have on her relationship with her child.

[38] The majority has also considered whether the broadcast of information about the Family Court custody proceedings was revealed in breach of Principle (i). The complainant argued that these matters were revealed in contravention of s.27A of the Guardianship Act, which prohibits the publication of any report of Family Court proceedings. The complainant cited cases which she considered supported her contention that the broadcaster had breached s.27A. The broadcaster disagreed that it had breached the Guardianship Act and referred to cases which it submitted allowed for the publication of the information contained in the item.

[39] The complainant provided the Authority with the High Court’s decision in Solicitor General v Smith. The Authority notes that this decision supports the complainant’s interpretation of s.27A. However, it also notes that the correct interpretation of s.27A at the time of the broadcast was unsettled.

[40] Whether or not facts were broadcast in breach of s.27A of the Guardianship Act, the majority’s task is to determine whether the broadcast of private facts breached privacy principle (i). This requires that the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities. On balance, the Authority does not consider that the information broadcast about the existence and outcome of the complainant’s custody proceedings would have been viewed as highly offensive and objectionable to a reasonable person.

Public Interest Defence

[41] Having accepted that the broadcast amounted to breach of Privacy Principle (i) in regard to the complainant and the baby, the majority must decide whether the disclosure of the private facts was legitimately in the public interest. If so, the broadcaster has a complete defence to a potential privacy breach (see privacy principle (vi)).

[42] The majority does not consider that the broadcast of private facts about the complainant and her daughter was warranted by any overriding public interest, noting that the correspondence in relation to this complaint showed that there was a clear dispute about the nature and extent of the complainant’s drug use. The majority considers that, in the context of an item about the wider issue about drug use among the parents of young children, there is insufficient public interest in broadcasting unproven allegations about possible criminal behaviour by a particular private citizen.

Consent

[43] Privacy principle (vii) provides that consent is another defence to a potential privacy breach. In relation to the baby, the complainant argued that the consent given by her father for her appearance in the item was insufficient. The majority notes that privacy principle (vii) specifically contemplates that consent may be given by one parent. However, that principle also requires that broadcasters satisfy themselves that what they broadcast will be in the “best interest of the child”. The majority does not consider that it was in the child’s best interest to broadcast allegations of drug abuse about her mother, especially as these allegations were unproven. Accordingly, the majority does not consider that privacy principle (vii) is of any assistance to the broadcaster.

[44] The Authority notes that the requirement that broadcasters satisfy themselves that broadcasts of private information about identifiable children are in their “best interest” is a matter which will be considered with stakeholders during the Authority’s planned review of the privacy principles.

General

[45] For the avoidance of doubt, the Authority records that it has given full weight to the provisions in the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons, a majority of the Authority upholds the complaint that an item broadcast on Holmes on 5 November 2003 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[46] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint, and particularly given the division of opinion about whether the complainant and her baby were identified and the obvious effort taken by the broadcaster to conceal the identity of the baby in the item, the Authority declines to impose an order.

Signed for and on behalf of the Authority

Joanne Morris
Chair
2 September 2004

Appendix

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

Privacy Complaint

1. The Complaint (through Shieff Angland) to the Broadcasting Standards Authority
   – 10 November 2003
2. TVNZ’s Report to the Authority – 17 December 2003
3. The Complainant’s Response to TVNZ’s Report – 12 January 2004
4. TVNZ’s Further Letter – 20 January 2004
5. The Complainant’s Letter – 2 February 2004
6. The Complainant’s Letter (about Smith) – 14 April 2004
7. TVNZ’s Letter (about Smith) – 22 April 2004

Standards Complaint

1. The Complaint (through Shieff Angland) to the Broadcasting Standards Authority
   – 10 November 2003
2. The Complainant’s Letter – 2 February 2004
3. TVNZ’s Response to the Authority – 17 December 2003
4. The Complainant’s Referral to the Broadcasting Standards Authority – 14 April 2004