BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
3 News – item on “Chloe of Wainuiomata” receiving diversion for shoplifting – allegedly in breach of privacy

Findings
Standard 3 (privacy) – private facts disclosed were in the public arena – not upheld

(This headnote does not form part of the decision.)

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 30 April 2008, reported that Chloe, a woman who gained notoriety in a 1990s television programme and who was nicknamed “Chloe from Wainuiomata”, had been charged with shoplifting. During the item, the presenter stated:

Chloe, whose slippers made her a 90s celebrity, has been charged with shoplifting. The court heard that Chloe, formally of Wainuiomata, tried to steal twenty three dollars and sixty four cents worth of pet care products from a Napier supermarket. She was granted diversion, in which offenders admit guilt but escape conviction.   

Standards

[2]   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.

Referral to the Authority

[3]   David Scott referred a privacy complaint about the item directly to the Authority under section 8(1A) of the Broadcasting Act 1989. He alleged that the item had breached Chloe’s privacy.

[4]   Mr Scott argued that the item had released “details that should have remained confidential relating to Chloe”. He contended that the diversion details and the details about her prosecution were not for public dissemination and that police diversion matters were confidential. 

Broadcaster's Response to the Authority

[5]   TVWorks agreed that Chloe was identifiable in the broadcast. However, the broadcaster considered that “the facts revealed about the theft were in the public arena” and that as a result, no private facts were disclosed about Chloe in contravention of the Authority’s Privacy Principles. It noted a recent New Zealand Court of Appeal decision in which it was accepted that name suppression was not automatic for an offender granted diversion.¹

[6]   The broadcaster also made reference to a decision made by the Authority (Decision No. 2000-178) that dealt with a similar issue and in which the Authority declined to uphold the privacy complaint. TVWorks declined to uphold the complaint that the item breached Standard 3 (privacy).

Further Information Requested by the Authority

[7]   The Authority contacted the Napier District Court to obtain confirmation that Chloe had not been granted name suppression. The Court confirmed in writing that no order for name suppression was made in respect of Chloe’s prosecution.

[8]   The Authority provided copies of the Court’s confirmation both to the broadcaster and to Mr Scott.

Authority's Determination

[9]   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.

[10]   Privacy principle 1 states 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. The complainant argued that details about Chloe’s diversion and prosecution were confidential.

[11]   The Authority notes that information about the Adult Diversion Scheme on the New Zealand Police website states that a person who is granted diversion can have their name published, unless they successfully apply for name suppression.²

[12]   As outlined in paragraph [7], the Napier District Court has confirmed that no application for name suppression was made in respect of Chloe’s prosecution. In these circumstances, the Authority concludes that the details about Chloe’s charge for shoplifting and subsequent diversion were in the public arena. They were not private facts to which privacy principle 1 applies.

[13]   Accordingly, the Authority declines to uphold the complaint that the item breached Standard 3 (privacy).

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 July 2008

Appendix

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

1.            David Scott’s direct referral to the Authority – 29 April 2008
2.           TVWorks’ response to the Authority – 28 May 2008

¹Fairfax New Zealand Ltd v New Zealand Police [2008] NZCA 39

²http:/www.police.govt.nz/service/diversion/pamphlet.html