BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

A Campbell Live item reported on a convicted fraudster, X, and contained interviews with her ‘victims’, including a disabled man who had advanced money to X on the basis her daughter would become his wife. A photo was shown of his supposed wife-to-be (the complainant). The Authority did not uphold her complaint that showing her photograph breached her privacy. While it was unfortunate, very few people would have identified the complainant, there was no suggestion she was involved in the scam, and viewers were more likely to think the photo was not legitimate, so the disclosure was not highly offensive.

Not Upheld: Privacy

Introduction

[1]  An item on Campbell Live reported on a convicted fraudster, X, who allegedly took advantage of vulnerable people. The item contained interviews with her ‘victims’, including a disabled man who advanced money to X on the basis her daughter was to become his wife. The man was filmed holding a photograph given to him by X of her alleged daughter.

[2]  RD, the woman shown in the photograph, made a direct privacy complaint to this Authority, arguing that the use of her image without her knowledge or consent breached her privacy. She explained that she was in a relationship with X’s son and they lived in Australia, but she had never spoken to X and did not know that her photograph was being used to ‘con vulnerable people’. The complainant explained that she and her partner had been working with New Zealand police to try and stop X from ‘hurting people’.

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

[4  The item was broadcast on TV3 on 20 June 2014. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach the complainant’s privacy?

[5]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy 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.

[6]  Before we determine a privacy complaint, we must establish that the person whose privacy has allegedly been infringed was identifiable. As the complainant’s photo was shown, she was identifiable.

[7]  Privacy principle 1 of the Authority’s Privacy Principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[8]  The issue in this case is whether the broadcast of the complainant’s photograph breached her privacy. We have previously recognised that a person’s photograph or image may amount to a private fact, provided a reasonable expectation of privacy exists in that photograph or image.¹ It is unclear how X obtained the complainant’s photo, but we are willing to accept that she had a reasonable expectation that it would not be used for the purpose of broadcast on national television.

[9]  The next issue is whether the broadcast of the complainant’s image would be considered highly offensive to an objective reasonable person in the complainant’s position. This must be assessed in light of the information attached to the image. RD considered that the use of her image implicated her in X’s scam, which harmed her reputation and business interests. She expressed concern for her safety because she had been contacted by one of X’s victims, following the broadcast.

[10]  MediaWorks apologised to the complainant for broadcasting her photograph but noted that considerable attempts were made to identify her prior to the broadcast. When these were unsuccessful, it decided that ‘on balance it was better to show the public the photograph given the breadth of [X]’s capacity to swindle people’. It noted that the reporter questioned X and her acquaintances about the identity of the woman in the photograph but was told different stories, which led him to believe that X had created a ‘fictitious character’ and ‘maybe even [used] a photo from a magazine simply set up to scam money’. The reporter said, ‘Given the number of convictions and victims [X] has, the story serves as a warning for the general public. The photo was also one she had been involving in her scams. It was in the public interest to show the photo as it may help [to] identify any further victims and avoid any future ones…’

[11]  While we understand the complainant’s distress at her photo unexpectedly appearing on television, we do not think that the broadcast of her image would be considered highly offensive to an objective reasonable person.

[12]  While her image was shown, we think the complainant would have been identifiable only to a very limited number of New Zealand viewers, particularly as she lives in Australia. The use of the image was fleeting and incidental to the item’s focus on the wide-ranging fraud committed by X and her ability to swindle people. There was no suggestion at all that the complainant, or anyone else, was involved in her scams. We agree with the broadcaster that, rather than linking RD with the scam, it was more likely that viewers would assume the photograph was not legitimate and that it was simply a picture of an attractive woman plucked from a magazine or the internet.

[13]  We also agree that there was a level of public interest in showing the image as it indicated the nature of X’s scams and her ability to con people, and could have alerted other victims to the scams, if she had given that image to other people besides the man featured in the item. It also alerted the complainant to the fact X was using her image in this way.

[14]  This was an unfortunate situation and we sympathise with the complainant in having her image broadcast on television without her consent. However, in all the circumstances, particularly because the disclosure of the photo would not in our view have been highly offensive, and it was in the public interest, 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

3 December 2014

Appendix

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

1                 RD’s direct privacy complaint – 18 July 2014

2                 MediaWorks’ response to the Authority – 19 August 2014

¹ Moore and Television New Zealand Ltd, Decision No. 2013-093, following Hosking v Runting [2003] 3 NZLR 385 (CA)