BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

Sunday focused on an initiative by a road safety organisation which creates images of car crash victims as they would appear now. One of the families taking part in this initiative lost their seven-year-old boy, who was killed by drink-driving teenagers 17 years earlier. The incident was briefly recounted, showing footage of the driver of the car and of several passengers. The Authority did not uphold a complaint that the item breached the privacy of the young people involved in the crash. The crash was a sufficiently serious and well-known event that the facts about it and the individuals' involvement had not become private again through the passage of time. The story carried high public interest and did not revisit the incident in a manner that would be considered highly offensive to an objective reasonable person.

Not Upheld: Privacy

Introduction

[1]  An item on Sunday focused on an initiative by a road safety organisation which creates images of car crash victims as they would appear now. One of the victims was a seven-year-old boy killed by drink-driving teenagers 17 years earlier. The story briefly recounted the crash, with footage from previous interviews with the driver of the car, who was named, and three passengers of the car, who were not named. It also showed brief footage from the court appearances of the driver and a named passenger who was responsible for the car.

[2]  Michelle Devereux complained that the programme was an attempt to 'sensationalise... at the direct expense' of 'all the young people involved in that incident, all of whom have paid their debts to society', and that this breached their privacy.

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

[4] The item was broadcast on TV ONE on 3 May 2015. 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 privacy of any of the individuals involved in the car crash?

[5]  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. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[6]  Privacy principle 2 states that it is inconsistent with an individual's privacy to allow 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 must be highly offensive to an objective reasonable person before it will breach the standard.

[7]  The item subject to complaint was 17 minutes and 35 seconds in length in total. During the item, 11 seconds of historical footage was shown of the driver, who was named, talking about the facts leading up to the crash. It then showed historical footage of three unnamed passengers talking about the lead-up to the crash for 16 seconds in total. Historical footage from court appearances of the driver and the named passenger responsible for the car was shown for eight seconds. The footage was taken from interviews that had been recorded for Police and/or current affairs programmes.

[8]  Ms Devereux argued that the programme 'dredged up all the young people involved in [the crash], all of whom have paid their debts to society and are now trying to lead responsible adult lives'. She said the programme 'vilified [them] yet again for an awful mistake made in their youth'. She said it was 'obvious... that it was an attempt to sensationalise a programme, at the direct expense of these people, who were not even informed that this programme would be showing at this time'.

[9] TVNZ conceded that the individuals in question were identified. However, it argued that no private facts were disclosed, and that the passage of time had not made any public facts private. It said there had been reporting about the incident as recently as 2012 and, as two individuals had served custodial sentences for the crash, they were not eligible to have their criminal records hidden under the provisions of the Criminal Records (Clean Slate) Act 2004. TVNZ said it had contacted both of the young people convicted about the programme and while neither of them wanted to be interviewed, one of them 'was keen to help' but 'didn't feel being interviewed... was the right way to do that'. The broadcaster concluded that public interest outweighed any privacy interests, saying, 'the issue of drink-driving is one of considerable public interest and the footage of those involved in the crash... was used in the public interest to highlight the pain which is caused for all parties in such crashes'.

[10]  When we consider a privacy complaint, we first determine whether the people whose privacy has allegedly been interfered with were identifiable in the broadcast. Here, two of the individuals were named and all of the individuals were shown being interviewed. We are satisfied that, although some time has passed since the accident, all of the individuals whose privacy was allegedly breached were identifiable.

[11]  The next question for us to determine is whether the 'public facts' around the crash have, in effect, become private again through the passage of time. We do not think they have. The crash was a well-known, serious and tragic event in New Zealand and widely reported at the time. As noted by TVNZ, two of the individuals served custodial sentences for their involvement in the crash. Four of the individuals had given recorded interviews for Police and/or current affairs programmes. Additionally, there was reference to the crash in the media as recently as 2012.¹

[12]  In any event, we do not think the disclosure in relation to these individuals would have been highly offensive to an objective reasonable person in a way that breached the standard.² Their involvement was peripheral to the focus of the story, which was the road safety initiative, enabling the families of victims to see what they might look like now, years later. The references to the individuals made up only a very small part of the 17-minute item. The tone was not sensationalist or judgmental, but rather emphasised the impact of drink-driving on victims' families and on the community as a whole. The programme presenter concluded the item by saying, 'It really brings home that's it's not just the person that you lose, it's the potential of that person'.

[13]  This story, and its messages about road safety and drink-driving, carried a high level of public interest. In our view this justified the brief references to the individuals involved in the accident and was not outweighed by any privacy interests in that information.

[14]  Accordingly, we decline to uphold the complaint that the programme breached the individuals' privacy.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 August 2015

Appendix

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

1      Michelle Devereux's direct privacy complaint – 4 May 2015

2      TVNZ's response to the Authority – 3 June 2015

^1 ‘Jailed passenger badly injured in another crash’, The Press, 5 December 2012

² Examples of disclosures the Authority has previously found to be highly offensive include a man being shown wrapping a towel around his naked waist (PG and Television New Zealand Ltd, Decision No. 2014-090) and a child’s involvement in a custody dispute (JB and Television New Zealand Ltd, Decision No. 2006-090).