Complaint under section 8(1A) and 8(1B)(b)(i) of the Broadcasting Act 1989
One News – reported that a man had drowned trying to save two children – showed footage of ambulance officers performing CPR and then apologising to the man’s family because they could not revive him – showed family grieving next to the body – allegedly in breach of good taste and decency and privacy
Standard 3 (privacy) – standard does not apply to deceased persons – item included prolonged and close-up footage of grieving family members – offensive intrusion into highly vulnerable and distressing moment – privacy of family members breached – upheld by majority
Standard 1 (good taste and decency) – unclassified news programme aimed at adults – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on Sunday 3 January 2010, was introduced by presenters as follows:
A father’s desperate rescue attempt has ended in heartache after a family day at the beach turned into a nightmare. For the second time in a week someone has died trying to save children from our waters. A man drowned while rescuing his son and niece from the sea at Glenbrook Beach south of Auckland.
 A graphic was displayed which stated “Warning!” and one presenter said, “We need to warn you this story is not an easy watch. The pictures are confronting and disturbing but they show the reality of the tragedy.”
 Footage of ambulance workers performing CPR on the man was shown, including a close-up of the man’s chest, while the reporter said, “Fighting frantically to prevent another drowning... A wife and mother clinging to hope as paramedics try to bring this man round but they’re battling against the odds.” A brief shot of a woman was shown with her hands over her mouth, sobbing, followed by another shot of the man’s chest. One of the paramedics was heard saying, “I’m really, really sorry.” The woman was shown with her face in her hands sobbing and dropping to her knees next to the body. The reporter stated, “This dad’s taken in too much water, sacrificing his own life to hold his son above the surface,” accompanied by a shot of the man’s legs, which were being rubbed by another female relative.
 The reporter was shown standing at the water’s edge, saying, “Not far out there’s a group of rocks and they form a kind of a reef. Now the family were out on that reef when the tide turned. Now the water moves pretty quickly here and they simply got caught out.”
 Returning to the footage of paramedics consoling the man’s sobbing family members, the reporter continued, “A local man managed to drag the two children to shore, by the time he got back for Dad, it was too late. The family had spent the day at the beach when they went in for a swim. Most of them were fully clothed. Water safety experts say that’s a recipe for disaster.”
 A representative from Water Safety New Zealand, Matt Claridge, was shown saying, “While [clothes] might keep the sun off your back, they’re going to weigh you down, pull you further under water and essentially they’re just a hazard.”
 Returning to the footage at the scene, where the women could still be heard weeping, the reporter stated, “He’s the second person who’s died this week saving family who’ve run into trouble. A man died on Northland’s Ninety Mile Beach after diving in to save his grandchildren. In both cases the children were taken by surprise in rips and the heroes trying to save them paid the price.”
 Mr Claridge advised that “a rip will typically be the flat area where there’s no surf at the beach and that’s a real red herring because that’s going to send those people in the rip right out to sea.”
 Footage of Glenbrook Beach was shown as the reporter concluded the item by saying, “Locals at Glenbrook Beach say they know the danger of these tides. They’re now considering erecting a sign to warn those who don’t.”
 Susan Rae made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards relating to good taste and decency and privacy. She considered that the item should not have shown paramedics performing CPR on the man, or his female relative “sobbing” when they could not revive him. Despite the warning, she said, “this was a gross breach of a family’s privacy at a tragic moment in their lives and did not need to be shown on national television”.
 Robert Schaare and Graham Turley directly referred privacy complaints to the Authority under section 8(1A) of the Broadcasting Act 1989.
 Mr Schaare argued that the privacy of the family had been breached because even though they were in a public place they were in a highly vulnerable position. He considered that the broadcast of the footage so soon after the event might have caused them further distress and anxiety, and may have alerted other people to the man’s death. Mr Schaare said that “surely this matter could have been reported without such graphic footage”, and was of the view that no “common decency” had been afforded to the family. He acknowledged that a warning had been given, and that the item was relevant and important in educating viewers about water safety, but considered that it was not clear that the family had consented to “this graphic piece of [sensationalist] reporting” and that the broadcast was disrespectful and offensive.
 Mr Turley considered that the privacy of the man and his family had been breached by the broadcast of the man receiving CPR. He argued that the family should receive a private apology, and that the news team should be counselled to prevent the broadcast of similar items in the future.
 TVNZ assessed the complaints under Standards 1 and 3 of the Free-to-Air Television Code of Broadcasting Practice. Privacy principles 3 and 8 of the Authority’s Privacy Principles are also relevant to the determination of the complaints. These provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Standard 3 Privacy
Broadcasters should maintain standards consistent with the privacy of the individual.
3. (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.
(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).
(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.
8. Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.
 The broadcaster noted that the Authority had previously stated (e.g. Golden and RNZ and Yeoman and TVNZ1) that Standard 1 related primarily to the broadcast of sexual material, nudity, violence or coarse language. It considered that the One News item did not fall within any of those categories.
 TVNZ contended that to constitute a breach of Standard 1, the broadcast material had to be unacceptable in the context in which it was shown, including the programme’s classification, time of broadcast, intended audience, and the use of warnings. It maintained that One News was aimed at an adult audience, and asserted that the Authority had acknowledged that “children of a vulnerable age are unlikely to watch the news unattended.”2 TVNZ considered that news programmes often contained footage that required the guidance of adults.
 The broadcaster pointed out that the item was preceded by a verbal warning from the programme’s presenter. TVNZ considered that the warning was “extended in length and clear in content” and gave viewers sufficient opportunity to decide whether to watch the item.
 TVNZ stated that the item, while upsetting, was “genuinely intended to highlight the tragedy of losing a loved one in this manner in an attempt to make water safety a priority for viewers and perhaps help to prevent other such incidents”.
 Accordingly, the broadcaster concluded that the item did not breach Standard 1 (good taste and decency).
 Turning to privacy, TVNZ noted that, at the time of the broadcast, the man in the item was deceased. It asserted that it was well established that both the privacy and fairness standards did not apply to deceased persons.3 The broadcaster maintained that care had been taken in the editing of the item to ensure that the man’s face was not broadcast. Accordingly, TVNZ concluded that the man’s privacy had not been breached.
 With regard to the man’s family members, TVNZ noted that there were “two brief shots of two women’s faces”, and that one was shown with her hands over the lower part of her face. It considered that, since neither woman was named, they would not have been identifiable to anyone other than people who already knew them. However, TVNZ accepted that they were sufficiently identifiable to proceed with considering the complaint that the broadcast breached their privacy.
 TVNZ turned to consider whether the item disclosed private information about the women or demonstrated an intentional interference with solitude or seclusion. It noted that the footage was obtained in a public place, but acknowledged that in “extreme circumstances” a person could still have an interest in seclusion.
 The broadcaster considered that the primary issues in the complaint were whether the broadcast of the footage would have been highly offensive to a reasonable person, and whether the broadcast was justified because it was a matter of legitimate concern or interest to the public. TVNZ stated that “significant editorial care was taken to include minimal shots identifying the family and not to use the shots gratuitously”. It noted that while a group shot was shown several times only the people’s backs were visible, and only two brief shots showed the women’s faces.
 The editorial decision to include the footage was “not taken lightly”, TVNZ said. After lengthy discussion among senior editorial staff, they reached the conclusion that the images “provided an unsanitised view of the aftermath of a drowning”. TVNZ reiterated that this was genuinely intended to highlight the tragedy in an attempt to stress the importance of water safety for viewers. There was no “dressing up” of the tragedy, it said, and the item contained an important public safety message.
 Further, because this was the second drowning in a week under similar circumstances, TVNZ considered that the item was “particularly topical”. Television is a visual medium, it said, and “the story would not have been nearly as powerful without these images. It was important that the item did move viewers to consider water safety”. TVNZ therefore maintained that it was in the public’s interest to see the material in the item and that One News had “intentionally structured the item around the theme of public safety in the water”. The broadcaster reiterated that the item was preceded by a comprehensive warning that the item’s content was “confronting”.
 TVNZ concluded that the material would not have been highly offensive to an objective reasonable person, and that the broadcast was justified in the public interest. It declined to uphold the privacy complaint.
 Dissatisfied with the broadcaster’s response, Ms Rae referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She maintained that the item was a “gross violation of a family’s privacy during a tragic moment in their lives”. Ms Rae considered that it was unlikely that the family would have consented to the footage being broadcast, and that it was possible that other family and friends would have learnt of the man’s death from the item.
 Mr Schaare accepted TVNZ’s arguments that the item was newsworthy and in the public interest, and that a warning was given. However, he maintained that a line had been crossed concerning the right to privacy, “which has been played off against exclusivity and to some part sensationalism”. Mr Schaare considered that the “unsanitised” story should have been broadcast at a later time “or at least edited so that the distressed people have their privacy and dignity respected”. He concluded that TVNZ had shown a “reckless disregard” for the privacy of the relatives of the deceased man.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in Appendix 1. The Authority determines the complaint without a formal hearing.
 Standard 3 states that broadcasters must maintain standards consistent with the privacy of the individual. As outlined in Oswald and TVNZ,4 section 2 of the Privacy Act interprets “individual” as meaning a natural person, other than a deceased person. Accordingly, we find that Standard 3 does not apply to the man who drowned, and we decline to uphold this part of Mr Turley’s complaint.
 We now turn to consider whether the privacy of the deceased man’s relatives was breached.
 When the Authority considers a complaint that alleges a breach of privacy, it must first consider whether the individual whose privacy has allegedly been breached was identifiable in the item. Four females were shown in the item. While they were not named, the item included full body shots of all four women. Two of the women’s faces were shown close up, although one was covering her nose and mouth with her hands. Nevertheless, we consider that all four women could have been identified from the broadcast.
Interest in solitude or seclusion
 Privacy principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). We note that the family was filmed on a public beach.
 However, privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was “particularly vulnerable”. The item in question showed four women who watched the ultimately unsuccessful attempts of ambulance officers to resuscitate their loved one. Their genuine distress and grief was obvious. It is difficult to imagine a situation in which a person could be more vulnerable, and we consider that this is precisely the type of situation envisaged by privacy principle 3(c).
 For these reasons we consider that the four women shown in the broadcast had an interest in seclusion which is protected by privacy principle 3.
Intentional interference in the nature of prying
 For us to conclude that there was a breach of privacy principle 3, we must find that the footage of the women was obtained by intentionally interfering, in the nature of prying, with their interest in seclusion.
 In considering this element of the principle, we have taken into account the nature of the broadcast footage. We note that the item returned to show the grieving relatives eight times over the course of the item, and included close-up footage of two of the women. We consider that this amounted into an intrusion, in the nature of prying, with their interest in seclusion.
Highly offensive disclosure
 Having found that the family members had an interest in seclusion which was interfered with, we must decide whether the disclosure of the footage of the women would be highly offensive to an objective reasonable person.
 We consider it appropriate to follow the direction of Justice Allan in Andrews v TVNZ5 who said that the test is whether the disclosure would be highly offensive to the reasonable person “in the shoes” of the individual whose privacy has allegedly been breached.
 A majority of the Authority members (Tapu Misa, Mary Anne Shanahan and Leigh Pearson) holds the view that the disclosure would have been highly offensive to any reasonable person in the shoes of the deceased man’s family.
 We the majority acknowledge that death and grief are a natural part of life. However, we reject the suggestion that capturing the raw grief of a family for television viewing is “natural”, whatever feelings of sympathy it may have aroused in the viewing public. There are times when families choose to share their stories of loss with the New Zealand public, usually to publicise an issue they feel strongly about, but in such cases the publicity is on the families’ terms; they are willing participants who have to some extent come to terms with their loss. The family on the beach did not choose to have their personal tragedy turned into a teachable moment for the rest of the nation; given their extreme vulnerability, it is questionable whether they were in any position to have done so.
 In our view, the item demonstrated a callous disregard for the suffering of the family. An intimate view of a family’s tragedy and grief was captured on camera, but rather than affording a tragic event the sensitivity that it deserved, the event was then used as “wallpaper” for a story structured around a water safety message. We the majority note that the item returned to footage of the grieving family eight times during the short item. Some of the shots were prolonged and featured close up footage of two of the women’s faces. It also showed the women touching their loved one and being comforted by the ambulance officers. We consider that using the family’s tragedy in a way that was bordering on exploitative and voyeuristic was a violation of their privacy and failed to treat the family with dignity and respect.
 We therefore conclude that the nature of the footage – prolonged, repeated and invasively close – intruded on the women’s grief in a manner which would have been highly offensive to an objective reasonable person. In our view, this was an event which deserved extreme sensitivity, and the broadcaster failed to respect the privacy of the deceased man’s family.
 A minority of the Authority (Peter Radich) finds that the disclosure of the footage would not have been highly offensive to an objective reasonable person. His views are attached as Appendix 1.
 TVNZ has a defence to the privacy complaints under privacy principle 8 if the disclosure was in the “public interest”. A matter that is in the public interest is defined as one of legitimate public concern, as opposed to being a matter of general interest or curiosity to the public.6
 However, we the majority must assess the public interest in broadcasting the particular footage of the complainants, rather than assessing any public interest in the broadcast overall.7 In doing so, we also accept the following principle expressed by Justice Tipping in the Court of Appeal in Hosking v Runting:8
The greater the invasion of privacy the greater must be the level of public concern to amount to a defence.
 In the majority’s view, the broadcast of images showing the deceased man’s family at the moment of his death and during their grief amounted to a serious breach of the family members’ privacy. We the majority consider that in order for TVNZ to succeed in claiming a defence of public interest, there would need to be an equally serious and legitimate public concern in viewing that footage.
 In Balfour and TVNZ,9 the Authority listed the following as matters which it considered to be matters of public interest (while noting that it did not amount to an exhaustive list):
criminal matters, including exposing or detecting crime
issues of public health or safety
matters of politics, government, or public administration
matters relating to the conduct of organisations which impact on the public
exposing misleading claims made by individuals or organisations
exposing seriously anti-social and harmful conduct.
 We the majority do not dispute that the issue of water safety and drowning is newsworthy and of public interest. We also acknowledge that showing the human face of such a tragedy amplifies that message, and that television broadcasters must be afforded some latitude in this respect. However, we consider that the public interest in highlighting the dangers of drowning did not justify broadcasting the images of family members in one of the most vulnerable and private moments of their lives, and in a way that was verging on voyeuristic and exploitative.
 Accordingly, we the majority find that the defence in principle 8 does not apply to the broadcast of footage of the deceased man’s family.
Bill of Rights
 Having reached the conclusion that the item breached the family’s privacy, the majority must consider whether to uphold the complaints as a breach of Standard 3.
 The majority acknowledges that upholding the Standard 3 complaints would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Hastings District Council and TVWorks,10the Authority determined that upholding a complaint under Standard 3 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In the Authority’s view, the privacy standard exists to protect individuals’ right to privacy. Privacy is recognised as being a special and important right, which is reinforced by the fact that Parliament gave the Authority the power to award compensation for breaches of privacy (section 13(1)(d) of the Broadcasting Act 1989), but for no other standard. Accordingly, the Authority considers that upholding a complaint under the privacy standard would place a justified limitation on a broadcaster's right to freedom of expression.
 We the majority must then consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the privacy standard on this occasion. As discussed above, we consider that the item intruded on a family’s privacy during a tragic moment in a highly offensive manner. Upholding the privacy complaint would signal the importance of maintaining standards consistent with the privacy of the individual and would clearly promote the objective of Standard 3 (as outlined in paragraph  above).
 In these circumstances, we find that upholding this part of the complaint places a justified and reasonable limit on TVNZ’s freedom of expression. We therefore uphold the complaints that the programme breached Standard 3.
 When the Authority considers an alleged breach of good taste and decency, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:
One News was broadcast at 6pm during children’s viewing times
the presenter issued a verbal warning before the item
the programme’s adult target audience
One News was an unclassified news programme.
 Taking into account the above contextual factors, we are of the view that Standard 1 was not breached on this occasion.
 Three members of the Authority (Tapu Misa, Mary Anne Shanahan and Leigh Pearson) wish to record the view that our decision on Standard 1 was borderline and reached very carefully. In this case, the offensiveness of the broadcast arose from the nature of the intrusion on the family, rather than the effects of the broadcast on the viewer. As outlined in paragraphs  to , we consider that the tone of the story was more voyeuristic than newsworthy, and the editing of the footage had the effect of using the family’s grief as wallpaper for its water safety message, rather than affording a tragic event the sensitivity it deserved. We are of the view, however, that the complainants’ concerns are more aptly considered under privacy.
 Taking into account that the item was broadcast in an unclassified news programme aimed at adults, we unanimously decline to uphold Ms Rae’s complaint that the item breached Standard 1.
For the above reasons a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 3 January 2010 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the privacy complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. Taking into account that the decision was not unanimous, we consider that the publication of the decision is sufficient in all the circumstances.
Signed for and on behalf of the Authority
13 May 2010
 With every respect to my colleagues and their views, I now express my separate and dissenting views in relation to these complaints. In doing so I wish to emphasise the feelings of sympathy which I have for the family who lost a husband and a father in these very painful circumstances.
 I acknowledge at once that extreme care must be taken by broadcasters when they record and later broadcast an event such as a person’s death. Ordinarily those persons, particularly family, who are present when a person dies, are entitled to solitude and seclusion and they are entitled to grieve and respond to the death privately in their own ways. There will be times when, in my view, it will be legitimate for the events surrounding a person’s death to be broadcast to the public. I think that this is such an occasion and I will endeavour to explain why I have reached this view.
 Sometimes it is appropriate for us to be reminded that death is a part of life and that our lives cannot be separated from death. We need to be reminded of the importance and sanctity of life and of the frailty of life. We need to know that care needs to be taken to preserve life and that the statistics which give us the deaths by accident and deaths by drowning always have behind them real people, real circumstances and real grief. We also need to be reminded as we are washed with information of extremes of bad human behaviour that there are many good and selfless people some of whom will go so far as to risk their own lives to save or help others. The sad events at Glenbrook Beach on Sunday 3 January 2010 have caused me to reflect on considerations of this kind.
 The father and husband who died had gone to the rescue of family children who had been caught by a swiftly incoming tide and were in danger of drowning. This man, the rescuer, managed to get the children sufficiently close to the shore to enable them to get to safety but in doing so he got into severe difficulties and had to be taken from the water by others. The broadcast was of a harrowing scene where desperate attempts were made to resuscitate the rescuer but in the end it was recognised that his life had been lost. This was announced by a paramedic who then sought to comfort the rescuer’s distressed wife and family. These scenes were linked to other material in which a similar case was referred to and strong water safety messages were given.
 I consider that the broadcast of the events surrounding the death of the rescuer was compassionate and sensitive. The face of the rescuer was obscured but the faces of his family were not. The broadcast was a powerful message that drownings involve real people and their families, they cause grief and despair and that in cases like this they also involve bravery and the highest levels of parental care. This to the extent that the man who died had put the interests of his children ahead of his own and had lost his life as a consequence.
 I recognise that it can be said that these events could have been broadcast differently. All faces could have been obscured and the camera could have been more distant. In my opinion in these circumstances the broadcast would have lost much of its potency and the power of the important messages which were conveyed would have been diminished.
 Against this background I will endeavour to relate these circumstances to the standards which we as an Authority are required to uphold. I am conscious of the right of freedom of expression in the New Zealand Bill of Rights Act 1990. I am also conscious that this right is subject to necessary limitations prescribed by law including those which arise under the Broadcasting Act 1989. What I believe is the outcome of the reconciliation of these statutory enactments is that the starting point is freedom of expression and this may only be constricted by such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Undoubtedly the right to privacy is such a restriction but such right is not absolute and in each case the broadcast in question must be evaluated and the public interest must be taken into account. A broadcast of something which has occurred in a public place is permissible unless the individual whose privacy is in issue is particularly vulnerable and the disclosure would be highly offensive to an objective reasonable person in the place of that person whose privacy is said to have been breached. Even then, in a particular case the public interest may justify disclosure.
 I am influenced in reaching the conclusion I have reached by the sensitive way in which the presentation of the event was made. While the faces of distressed family members were shown, the way in which they were shown was compassionate and sympathetic. The broadcast was presented as one dealing with a matter of serious public interest, there were warnings of what was to come and the attitudes of the television presenters were sombre and sympathetic. Most viewers would have seen the rescuer’s death as a mixture of the tragic and the uplifting.
 These complaints have not come from family members but have come from well meaning people unconnected with the family members whose privacy, it is asserted, was breached. It is not known whether the family members did not consider their privacy to have been breached or whether they did but felt unable to complain or were unaware of the complaints procedures. In any event it is not those particular family members upon whom the focus should be but rather some notional objective and reasonable persons in their place.
 The requirement that objective and reasonable people in the place of family members must find the broadcast to be highly offensive before such broadcast is unacceptable is a very stringent test. In my view the test requires the triggering of feelings of disgust or a sense that something very unpleasant has happened. It is my view that objective and reasonable people in the place of family members would not have found the broadcast to be highly offensive. Rather, they would have seen it as supportive of them in their tragedy and as showing the family member who died to be a worthy person who lost his life saving others. Generally, I find myself unable to hold that a broadcast which would have attracted feelings of warmth and sympathy to the family who suffered the loss and which was a jolt against complacency in relation to water safety ought not to have been broadcast and that this Authority should now interfere either as a matter of privacy or as a matter of good taste and decency.
The following correspondence was received and considered by the Authority when it determined this complaint:
Susan Rae’s complaint
1. Susan Rae’s formal complaint – 4 January 2010
2. TVNZ’s response to the complaint – 12 February 2010
3. Ms Rae’s referral to the Authority – 16 February 2010
4. TVNZ’s response to the Authority – 9 April 2010
Robert Schaare’s complaint
1. Mr Schaare’s direct privacy complaint to the Authority – 3 January 2010
2. TVNZ’s response to the Authority – 15 February 2010
3. Mr Schaare’s final comment – 25 February 2010
Graham Turley’s complaint
1. Mr Turley’s direct privacy complaint to the Authority – 5 January 2010
2. TVNZ’s response to the Authority – 15 February 2010
3Kiro and TVNZ, Decision No. 2007-111
4Decision No. 2009-106 at paragraph 
5HC Auckland, 15 December 2006, CIV 2004-404-3536
6Hosking v Runting  1 NZLR 1 (CA), paragraph 
7See XY and CanWest TVWorks (Decision No. 2006-014), paragraph 
8 1 NZLR 1, paragraph 
9Decision No. 2005-129
10Decision No. 2009-088