BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

An item on Campbell Live, reporting on Pike River Mine, included radio transmission audio between those in the mine and those in the office on the morning of the disaster. The audio contained the complainant’s full name which he considered to be a breach of his privacy. The Authority did not uphold the complaint, as Mr Scott’s employment at the mine was not a private fact, and the disclosure of his name was not associated with any blame or disclosed for the purpose of encouraging harassment.

Not Upheld: Privacy

Introduction

[1]  An item on Campbell Live, reporting on Pike River Mine, included radio transmission audio between those in the mine and those in the office on the morning of the disaster. Introducing the item, the presenter stated, ‘What you’re about to hear may be shocking, but it’s the truth. Unheard audio that reveals breakdowns, missing equipment and a gas leak, all on the day of the explosion’. The following audio was broadcast and transcribed onscreen, as the first of a series of recordings:

A:    Hi Dan it’s Alex here is there a gas calibration kit near your office?

B:    No there is not one here I can go ask Mike Scott.

A:    Yeah because there was always one here by the spare parts.

[2]  The reporter commented in a voiceover, ‘One of the first things apparent from the conversations early in the day, is that important gas level measuring and calibration equipment was missing for most of the morning. During this time, methane was leaching out from the coal seam, and it brought work to a standstill in a busy area of the mine’. The programme was broadcast on 10 March 2014 on TV3.

[3]  Mike Scott, the person referred to in the audio, made a direct privacy complaint to this Authority, alleging that broadcasting his name in this context breached his privacy in a manner that was potentially harmful.

[4]  The issue is whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the complainant’s privacy breached?

[6]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[7]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.¹ As the complainant’s name was disclosed in the item, we are satisfied that he was identifiable in the broadcast.

[8]  The next issue is whether any of the Authority’s Privacy Principles, set out in Appendix 1 to the Code, were breached. Privacy principle 1 is the most widely applied principle in privacy cases, and protects against the public disclosure of private facts. Mr Scott also referred to privacy principle 4, which protects against the disclosure, without consent, of the name and/or address and/or telephone number of an identifiable individual. Under this principle, it is not the mere disclosure of an individual’s name, address or telephone number that will amount to a breach of the principle; the principle was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public.² Under both principles the disclosure must be highly offensive to an objective reasonable person.

[9]  We recognise the enormous sensitivity around this issue and the events at Pike River Mine, and that it may have been a shock for the complainant to hear his name in this context. Nevertheless, we do not think that Mr Scott’s employment at the Pike River mine at the time of the disaster was a private fact, or something which he could reasonably expect to remain private. The context in which it was broadcast was not highly offensive and it was not disclosed for the purpose of encouraging harassment. The reference to Mr Scott’s name was fleeting in the context of a nine-minute story, and not repeated or dwelt on. It was not used in a derogatory manner or associated with any blame; there was no implication that it was Mr Scott’s fault the equipment was missing. We also note it is a relatively indistinct, and probably common, name. We do not think that viewers would have formed any meaningful impression about Mr Scott based on the very brief mention of his name.

[10]  For these reasons, we are satisfied that the complainant’s name was not disclosed for the purpose of encouraging harassment, and that the disclosure would not be highly offensive to an objective reasonable person.

[11]  Accordingly, we decline to uphold the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
15 July 2014

Appendix

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

1                 Mike Scott’s direct privacy complaint – 17 March 2014

2                 MediaWorks’ response to the complaint – 15 April 2014

¹

See, for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12].

²E.g. Spring and The Radio Network, Decision No.2007-108