BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
One News – footage of interpreter during murder trial – High Court ruled that interpreter’s image was not to be broadcast – allegedly in breach of privacy

Findings
Standard 3 (privacy) – disclosure of complainant’s presence at trial would not be considered highly offensive by an objective reasonable person – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on One News, broadcast on TV One at 6pm on 23 July 2009 reported that the Justice Minister was calling for the repeal of the defence of provocation, following the conclusion of two murder trials.

[2]   The item included footage of both murder trials. Two brief shots of one of the defendants sitting in the dock were shown, with a woman sitting alongside the dock.

Referral to the Authority

[3]   WP, the woman shown next to the defendant in the item, lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989, alleging that the broadcast of the footage breached her privacy. She stated that she had been acting as an interpreter for the defendant and, before the trial commenced, she had lodged a written request with the Auckland High Court that her image not be broadcast. The High Court accepted the request, and she said the judge announced that in court on several occasions. However, despite it being made clear by the judge that her image was not to be broadcast, TVNZ had included footage of her twice in the One News item. The complainant said that she was particularly concerned that, due to the topicality of the issue of provocation as a defence, it was likely that footage from the trial would be screened again.

Standards

[4]   Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and privacy principle 1 of the Authority’s Privacy Principles are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy principle 1

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.

Broadcaster’s Response to the Authority

[5]   TVNZ said that it must first determine whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It accepted that the complainant was identifiable in this case.

[6]   The next issue, TVNZ said, was whether the item disclosed any private facts about the complainant. TVNZ noted that the item was not about the trial, but about the defence of provocation. It said that footage was included from the two murder trials to provide context. The broadcaster stated that, as far as it could ascertain, the footage that included the complainant “was taken at an early appearance by [the defendant] last year, following his arrest, and was not trial footage. TVNZ did not have a camera in court during the trial”.

[7]   TVNZ said that it now understood that the Judge made an order at the commencement of the trial in June that the media not photograph the interpreter in court. One News was not aware of this order. TVNZ was not present in court on the day, and did not report on the trial until a verdict was reached. The court order was not communicated to TVNZ by court staff, TVNZ said, and no inquiries were made; TVNZ was “simply unaware of its existence”.

[8]   The broadcaster said that it unreservedly accepted that inquiries should have been made as to the existence of any orders restricting the use of earlier footage and therefore apologised to the complainant for failing to make them. It emphasised that the mistake was not intentional. However, TVNZ questioned whether any private facts were disclosed in the item.

[9]   TVNZ said that a note had been placed on the footage file stating that the complainant’s face was not to be shown again. A warning had also been placed on the footage in the TVNZ news video research library. The TVNZ news department acknowledged the direction from the Judge that the complainant’s face be obscured if she was filmed at the upcoming sentencing. TVNZ stated that it had written to the court to apologise and explain the circumstances behind the broadcast of the footage.

[10]   The broadcaster submitted that it was not the role of the Authority to enforce suppression orders, but the court’s role. It noted that the Authority had previously ruled that “an alleged breach of a name suppression order is a matter for the Court or Tribunal hearing the relevant case” (Campbell and TVNZ¹), and recommended that the Authority decline to determine the complaint.

Complainant’s Final Comment

[11]   WP maintained that TVNZ’s assertion that the footage had been obtained not during the trial but on an earlier occasion prior to the judge’s instruction that the media not broadcast her image, was false. She noted that the accused’s defence lawyer, clearly shown in the footage, was not involved before the trial. Further, the defendant’s lawyer at prior court appearances forbade any media presence in the courtroom. She said that if he had not, she would have made the same request that her image not be broadcast.

[12]   With regard to TVNZ’s assertion that the judge instructed the media not to broadcast her image “at the commencement of the trial”, WP stated that she recalled clearly that that instruction was given either by the Judge or the Court Registrar on every occasion that the media were present.

[13]   The complainant argued that TVNZ’s claim that One News was “not aware” of the direction from the court was not an excuse for its carelessness. She considered that TVNZ’s response suggested that the privacy standard did not apply because no private facts were disclosed about her. WP argued that, given the court’s instructions, it was her image that should be considered the private fact in this case.

[14]   The complainant contended that TVNZ’s reference to name suppression was a red herring, as she was not a witness, a defendant or a family member, but a court employee doing her job. She asserted that she had every right to request that her image not be broadcast, and that TVNZ had failed to honour the direction of the court and to explain its behaviour adequately in that respect.

Authority’s Request for Further Information from the Complainant

[15]   The Authority asked the complainant to explain the reason why the Court had granted her request that her image not be broadcast.

[16]   The complainant stated that the Auckland High Court had not requested any reason from her as to why she did not want her image to be used by the media; the Court accepted that it was her right to make that request. However, she provided her own reasons for making the request. The complainant said that acting as a translator for the court was an occasional part-time job, and that “I do not wish to have my image associated with a brutal crime as I believe this would have a very bad effect on my professional life”. She noted that her image had been featured in a number of magazines in relation to a different occupation, and she said it was crucial to her that “nobody should ever associate my image with a courtroom, crime, homicide or anything similar”.

[17]   The complainant reiterated that the court assured her that her image would not be used, and that its instructions to the media were clear.

Broadcaster’s Final Comment

[18]   TVNZ confirmed that One News did not film during the trial, but only during the depositions and at the time of the verdict. However, it had identified the source of the footage from the item, which was obtained “pursuant to the reciprocal ‘camera in Court’ arrangement”. Unfortunately, it said, the footage did not have any warnings attached to it about to the court’s direction relating to the use of the complainant’s image.

[19]   The broadcaster reiterated its argument that it was the role of the court, not the Authority, to enforce suppression orders. It stated that it had written to the court apologising and explaining the circumstances around the broadcast of the footage as it understood at the time of the item. It said it would write again and explain how the further information provided by the complainant had led to the identification of the source of the footage subject to complaint.

[20]   However, in terms of the complaint, TVNZ queried whether any private facts about the complainant were disclosed.

Authority's Determination

[21]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[22]   It is the role of the courts to enforce orders that have been made concerning the broadcast of images recorded in a courtroom. The Authority’s task is to determine whether the inclusion of the complainant’s image in the item breached broadcasting standards, in particular, Standard 3 (privacy).

[23]   When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the complainant’s face was visible in the broadcast, the Authority concludes that she was identifiable.

[24]   The Authority must then consider whether the broadcast disclosed any private facts about the complainant. It accepts that, as the court had made an order that her image not be broadcast, the complainant had a reasonable expectation of privacy in that respect. The Authority therefore concludes that the broadcast of WP’s image amounted to the disclosure of a private fact.

[25]   The third step is for the Authority to consider whether the disclosure of that fact would be considered highly offensive to an objective reasonable person. The Authority considers that the reasons for the complainant’s request to the court are important in determining this question. For example, if the order was granted to preserve the complainant’s safety in a situation of domestic violence, the disclosure of her image could be considered highly offensive to an objective reasonable person.

[26]   The complainant has advised the Authority that she was concerned that associating her with a murder trial would negatively impact on her personal and professional reputation in relation to her main occupation. In the Authority’s view, an objective reasonable person would not, in those circumstances, class the disclosure of the fact that the complainant was merely present at the trial, sitting beside the dock, as “highly offensive”.

[27]   Having found that the disclosure would not be highly offensive to an objective reasonable person, the Authority declines to uphold the privacy complaint under Standard 3.

Name Suppression

[28]   Although the privacy complaint has not been upheld, the Authority considers that in all the circumstances it is appropriate to suppress the complainant’s details in the decision.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

1.          WP’s direct privacy complaint – 26 July 2009

2.          TVNZ’s response to the Authority – 27 August 2009

3.          WP’s final comment – 7 September 2009

4.          TVNZ’s final comment – 23 September 2009

5.          Further information from WP – 28 September 2009

¹Decision No. 2006-082