BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Unsolved – examined murder and rape of Alicia O’Reilly in 1980 – disclosed address where crimes occurred – breach of privacy of present owners

Findings
Privacy – no highly offensive private facts disclosed – no intrusion – no uphold

This headnote does not form part of the decision.

Summary

[1] The series Unsolved examined serious crimes which have not been solved. The murder and rape of six-year-old Alicia O’Reilly was the unsolved crime dealt with in the episode broadcast at 8.00pm on TV One on 13 May 2002. The programme included the name of the street and the number of the house where the crimes occurred, and included visuals of the house.

[2] Explaining that she and her husband were the current owners of the house, Carol Irwin complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the disclosure of the information which identified the house breached their privacy.

[3] In response, TVNZ advised the Authority that the address was a matter of public record and recommended that the complaint not be upheld.

For the reasons below, the Authority declines to uphold the complaint.

Decision

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

The Programme

[5] The series Unsolved examined serious crimes which have not been solved. The murder and rape of six-year-old Alicia O’Reilly was the unsolved crime dealt with in the episode broadcast at 8.00pm on TV One on 13 May 2002. The programme included the name of the street and the number of the house where the crimes occurred, and included visuals of the house.

The Complaint

[6] Carol Irwin complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the disclosure of the information which identified the house breached their privacy. She explained that she and her husband were the current owners of the house.

[7] Ms Irwin recalled that she had been approached by the production company making the series to ask if the company could film inside the house. The request was declined.

[8] Pointing out that she understood that the exact location of the house was not to be disclosed and acknowledging that the house was now “quite unrecognisable” from the shots used in the item, Ms Irwin expressed astonishment that the programme included a visual of the council plan of the house which showed the full written address of the property.

[9] Ms Irwin noted that she and her husband were unaware of the crimes when they bought the house, and she was now concerned that the knowledge could affect potential purchasers when she and her husband decided to sell the house.

The Standard

[10] Under s.4(1)(c) of the Broadcasting Act 1989, broadcasters are required to maintain standards consistent with the privacy of the individual.

The Broadcaster’s Response to the Authority

[11] TVNZ reported that the programme makers were aware of Ms Irwin’s concerns at the time the episode was made. TVNZ quoted a letter from the production company which outlined how it had minimised the identification of the property. These steps included, the company continued:

We screened old photos of the property from the time of the murder, which is completely different from how the house looks today. The modern day exteriors of the house were shot in front of a high fence and through trees, concentrating on a bedroom window, again to minimise identification.

Although we showed the street sign, the voice over in the story did not at any stage refer to the street by name or the house number. Ms Irwin is correct in her assertion that we screened a council plan sitting on the desk of the policeman in charge of investigating Alicia O’Reilly’s murder. The map appeared on screen for three seconds.

[12] TVNZ argued:

It is our submission that there cannot have been a breach of Ms Irwin’s privacy because neither she nor her husband were mentioned in this item. We further submit that the address where this murder took place is a matter of public record. We suggest the Canal Road community, like any other in New Zealand, must have residents who have lived there for a number of years who know that Alicia O’Reilly was killed in that house. Because the murder remains unsolved it is one that has come up from time to time in the media in intervening years.

[13] TVNZ then assessed the complaint against the seven Privacy Principles applied by the Authority when determining complaints which maintain that a broadcast has breached the privacy of an individual.

[14] As the programme did not disclose any private facts, as there was no intentional interference (in the nature of prying), and as nobody was abused or denigrated, TVNZ contended that there had not been a breach of Ms Irwin’s privacy.

The Authority’s Determination

[15] The Authority has developed a number of Privacy Principles which it applies when determining a complaint that a specific broadcast fails to maintain standards consistent with the privacy of an individual.

[16] Principles (i), (ii) and (iii) are applicable to the situation in the complaint from Ms Irwin. They 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.

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The “public” facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

[17] The Authority does not consider that Principle (i) was breached. The item showed a house where, as a matter of public record, a murder was committed a number of years ago. While it would have been difficult to identify now the house from the visuals used, the item showed a plan of the house, albeit for only three seconds, where the address was recorded. However, as the current occupants were not named and the item did not disclose any highly offensive and objectionable public facts, the Authority concludes that the Principle was not breached.

[18] As the murder has not been solved, the Authority does not accept that the address at which it occurred has become private through the passage of time. The Authority does not accept that Principle (ii) was infringed.

[19] TVNZ denied that Principle (iii) was breached as, after the complainant denied the crew access to her house, the shots used were taken from a public place. The complainant acknowledges that “only street shots” were used and “if you examined every house” in the street, it might be identified. The Authority does not accept that the item contained intrusion which breached the standard.

[20] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
25 July 2002

Appendix

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

1. Ms Irwin’s Complaint to the Broadcasting Standards Authority (plus copies of an earlier letter to and response from Television New Zealand Ltd) – received 20 May 2002
2. TVNZ’s Response to the Authority – 5 June 2002