BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Holmes – sensitive information about two women found on second-hand computer hard drive – women able to be identified – breach of women’s privacy

Findings
Section 4(1)(c) – Complaints of FL, Mr Elliott and Mr Herrmann – upheld; Ms MacDonald’s complaint – one aspect upheld by broadcaster; one aspect subsumed under Standard G4

Orders
(1) Broadcast of statement
(2) $5,000 compensation to each of the women whose privacy was breached
(3) $2,500 costs to the Crown

Cross-reference: 2002-071–072

This headnote does not form part of the decision.

Summary

[1] An item broadcast on Holmes on TV One at 7.00pm on 21 May 2001 reported on sensitive information about two women which had been found on a second-hand computer hard drive. Excerpts from the interviews with the two women were included in the broadcast.

[2] FL, one of the women concerned, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached her privacy. Martin Elliott and Arne Herrmann each complained to the Authority under s.8(1)(c) of the Act that the item had breached the privacy of the two women. Sarah MacDonald complained to Television New Zealand Ltd, the broadcaster, that the item had breached the privacy of the women.

[3] TVNZ accepted that the women’s privacy had been breached insofar as it acknowledged that techniques used to disguise the identity of the women had been flawed. As a result of identifying the women, TVNZ acknowledged that highly offensive and objectionable facts were revealed about them, and that they "were in effect named without their consent". In relation to the complaints of FL, Mr Elliott and Mr Herrmann, TVNZ recommended that the Authority uphold their complaints as a breach of s.4(1)(c). In relation to Ms MacDonald, TVNZ upheld her complaint as a breach of s.4(1)(c).

[4] Dissatisfied with an aspect of TVNZ’s response, Ms McDonald referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the privacy complaints of FL, Martin Elliott and Arne Herrmann. The aspect of Ms MacDonald’s privacy complaint which was referred to the Authority under s.8(1)(a) of the Broadcasting Act is subsumed under a consideration of standard G4 of the Television Code of Broadcasting Practice and is dealt with in Decision No. 2002-071/072.

Decision

[5] The members of the Authority have viewed a videotape of the item complained about. They have also read the correspondence listed in the Appendices and a transcript of the item.

[6] The Authority determines these complaints without a formal hearing.

The Item

[7] An item on Holmes broadcast on TV One at 7.00pm on 21 May 2001, reported on sensitive information about two women which had been found on a second-hand computer hard drive. The item reported that the information had been stored on the home computer of a counsellor (Yvonne Munro) to whom the women had been "referred" by the Accident Compensation Corporation (ACC). The computer files contained detailed information about sexual abuse claims made by the women. Extracts from the files were shown on screen. The sensitive information was reported to have been discovered by a man who had bought a second-hand computer containing Ms Munro’s hard drive.

[8] The two women whose information was discovered on the hard drive were each interviewed in the report. They were given the pseudonyms of "Jane" and "Alex", and an attempt was made to conceal their identities. It was reported that the Holmes programme had easily traced the women, using information found in the computer files, the electoral roll and a telephone book. The women were reported to have been "devastated to discover their most intimate secrets [had] been made public".

The Complaints

The Privacy Complaints referred direct to the Authority

[9] FL was one of the women whose information was found on the second-hand hard drive. She complained that her privacy had been breached. She said that she was "totally devastated" by the item. She also said that the Holmes reporter had told her that:

the programme was to expose ACC accidentally releasing private information to the public, however this proved not to be the case.

[10] FL said she did not consent to the use of private information from her file in the item, but:

information about how I was abused, details about the abuser and … parts of my file on screen were featured.

[11] Furthermore, FL said that she was clearly identified by the item to family, friends and casual contacts, despite being assured that this would not be the case.

[12] Mr Elliott and Mr Herrmann also complained that the women’s privacy had been breached by the broadcast. Mr Elliott complained that the Holmes programme had tracked down and "traumatised" the women in order to "sensationalise" a story. In his opinion, the women need not have been contacted, and should have been "left unaware of the confidentiality problem".

[13] Mr Herrmann complained that "intimate aspects" of the women’s lives need not have been "exposed on national television". He maintained that the way the story was presented and researched was completely unnecessary. Mr Herrmann said that it was disturbing that:

the lust for sensation does not stop the media [intimidating] New Zealanders and particularly those who already had unusually cruel experiences to endure in their lives.

Ms MacDonald’s Complaint to the Broadcaster

[14] Ms MacDonald complained that the item breached the women’s privacy, as their inclusion had not been necessary to the story, was inappropriate and had caused them undue distress.¹

TVNZ’s Responses

[15] In relation to each of the privacy complaints made by FL, Mr Elliott and Mr Herrmann, TVNZ commented that:

The decision to include the two women was made because it was felt from an editorial point of view that the devastating effect on the women of discovering that sensitive and confidential files about them had been seen by a complete stranger was an integral part of the story. Their reactions helped emphasise the magnitude of the security breach, and reinforced the questions the programme raised about what steps organisations like ACC had taken to ensure that such information was secure.

[16] TVNZ considered that there were two possible aspects to the privacy complaints. The first related to the sufficiency of TVNZ’s efforts to conceal the women’s identities. This aspect was addressed in the broadcaster’s response to each of the privacy complaints made by FL, Mr Elliott, Mr Herrmann and Ms MacDonald. The second aspect, which TVNZ addressed in relation to the complaints of Mr Elliott, Mr Herrmann and Ms MacDonald, related to the possibility that "it was an invasion of privacy to let the women know that secret and sensitive information about them had been read by a complete stranger".

[17] As to the first aspect of the privacy complaints, TVNZ agreed with the complainants that it had taken insufficient steps to ensure that the identities of the women were concealed. It recommended that the Authority uphold the complaints of FL, Mr Elliott and Mr Herrmann as breaches of s.4(1)(c) of the Broadcasting Act, and it upheld that aspect of the complaint made by Ms MacDonald as a breach of s.4(1)(c) of the Broadcasting Act.

[18] TVNZ identified Privacy Principles (i) and (v) as the relevant principles that it considered had been breached. Those principles are two of the principles enumerated by the Authority in an Advisory Opinion dated 20 September 1999, and which are applied by it in relation to complaints which allege a breach of privacy. They read:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

[19] TVNZ said:

Given that the item specifically referred to Jane as an incest victim (accompanied by an on-screen picture of the file describing an act of incest) and that Alex suffered rape, TVNZ acknowledges that "highly offensive and objectionable" facts were revealed about the two women in circumstances where some people who knew the women but hitherto were not familiar with their histories of sexual abuse would have been able to identify them.

It is also TVNZ’s view that because the women were apparently identifiable to friends and family, they were in effect named without their consent. Therefore Privacy Principle (v) is also breached.

[20] TVNZ apologised to FL and advised the Authority and Ms MacDonald that its News and Current Affairs Department was taking immediate steps to review the way it interviewed people whose identities needed protection.

[21] As to the second aspect of the privacy complaints, TVNZ said it considered that there was no breach of privacy involved in informing the women about the discovery of the files. In TVNZ’s view the women had a "fundamental right to know" that private details of their lives had been seen by a person not known to them. TVNZ said, in relation to the complaints of Mr Elliott, Mr Herrmann and Ms MacDonald, that "to think otherwise would be to subscribe to the philosophy that ignorance is bliss".

The Final Comments from FL, Martin Elliott and Arne Herrmann

[22] In her final comment, FL said she was "relieved that TVNZ had acknowledged the seriousness of this matter".

[23] In Mr Elliott’s final comment, he reiterated that the Holmes programme had:

…sensationalised the story by tracking down the victims and, by interviewing them, re-victimised them. Not only did these women suffer the discomfort of the disclosures, they were also forced to revisit the horror of their rape and incest.

[TVNZ] may say what [it] likes, but I believe decency, commonsense and compassion would dictate that ignorance of the disclosure was in the women’s best interests.

[24] In Mr Herrmann’s final comment he said he was "pleased and concerned at the same time that [his] complaint [was] being upheld". He said he would appreciate learning of the steps TVNZ said it was taking to review the way it interviewed people whose identities needed protection.

Ms MacDonald’s Referral

[25] When Ms MacDonald referred her complaint to the Authority, she requested that the Authority confirm that the broadcaster accepted that the programme had breached the women’s privacy.

TVNZ’s Responses to Ms MacDonald’s Referral

[26] In TVNZ’s response to Ms MacDonald’s referral (as it related to privacy), it said she "appeared" to be dissatisfied with TVNZ’s action taken when it upheld her complaint under s.4(1)(c) of the Act.

Ms MacDonald’s Final Comment

[27] In Ms MacDonald’s final comment, she said that she was not dissatisfied with TVNZ upholding s.4(1)(c). However, she also said that she was dissatisfied with the extent of TVNZ’s findings, as it had not dealt with her concern that the Holmes programme had "misled the women and broke their trust".

The Authority’s Determination

[28] In determining complaints which allege a breach of privacy, the Authority applies the Privacy Principles which it has developed. Principles (i) and (v) read:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

[29] The Authority notes that TVNZ accepted that the identities of the women had been inadequately concealed, and that TVNZ considered that Privacy Principles (i) and (v) had been breached. It also notes that TVNZ apologised to FL for the breach and advised the Authority and Ms MacDonald that its News and Current Affairs Department was taking immediate steps to review the way it interviewed people whose identities needed protection.

[30] The Authority notes that Ms MacDonald’s complaint about privacy encompassed two distinct matters. First, she asked that, in relation to the aspect of the privacy complaint upheld by the broadcaster, the Authority "confirm" this finding. Accordingly, the Authority hereby records that TVNZ upheld an aspect of Ms MacDonald’s privacy complaint.²

[31] Second, Ms MacDonald was dissatisfied that TVNZ had not made a decision under s.4(1)(c) in relation to whether the Holmes programme had "misled the women and broke their trust". The Authority considers that the question about whether the Holmes programme had "misled the women and broke their trust" is best dealt with under standard G4 of the Television Code of Broadcasting Practice. The Authority refers to Decision No. 2002-071/072, which sets out its findings in relation to this aspect of the complaint. In that decision, the Authority found a breach of standard G4 and said:

Turning to the manner in which the women were interviewed, the Authority considers that the programmes were unfair to the women. Having listened to the field interviews with the women, the Authority concludes that the items selectively used responses to leading questions. The Authority considers that the women were led to believe by the Holmes reporter’s line of questioning that they had been let down by ACC. Their emotional reaction to this suggestion was sought through questions such as:

Reporter:     Is there anything you would like to say to ACC?

Reporter:     What do you want from ACC?

Reporter:     So it was a very big deal placing your trust in this organisation?

Reporter:     You’d like to see heads roll?

The women’s emotional reactions to such questions were then edited and used or paraphrased in the items to illustrate the story in a manner which the Authority considers breached standard G4.

[32] In relation to the complaints of FL, Mr Elliott and Mr Herrmann, the Authority notes that TVNZ conceded a breach of s.4(1)(c) of the Broadcasting Act. The Authority agrees that s.4(1)(c) was breached, in that the broadcaster revealed extremely sensitive private facts, facts which the Authority considers highly offensive and objectionable to a reasonable viewer of ordinary sensibilities. These facts included reference to Jane as an incest victim (accompanied by an on-screen picture describing acts of incest) and that Alex suffered rape. Accordingly, the Authority upholds the privacy complaints of FL, Mr Elliott and Mr Herrmann.

[33] The Authority notes that there were other issues raised in the complaints which related to the ethics of the broadcast. These issues have been the subject of debate in the news media. They relate to matters such as whether it was necessary to track down and inform the women of the information leak, whether it was necessary to broadcast interviews with the women and the extent to which this revictimised them, and the adequacy of the consent given by the women to the interviews. In the Authority’s opinion, it is not necessary to address these matters as the broadcaster has conceded that there was a breach of s.4(1)(c) of the Broadcasting Act. In addition some of these matters are dealt with in Decision No. 2002-071/072, insofar as they relate to alleged breaches of broadcasting standards.

Bill of Rights

[34] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, including in particular the extremely sensitive nature of the private facts which were revealed by the broadcast, and the broadcaster’s failure to adequately conceal the identities of the women who were interviewed in the programme, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints.

For the reasons above, the Authority upholds the privacy complaints of FL, Martin Elliott and Arne Herrmann in relation to an item broadcast by Television New Zealand Ltd on Holmes on TV One on 21 May 2001. The Authority records that Television New Zealand Ltd upheld one aspect of Ms MacDonald’s privacy complaint about the same item.

The aspect of Ms MacDonald’s privacy complaint which was referred to the Authority under s.8(1)(a) of the Broadcasting Act is subsumed under a consideration of standard G4 of the Television Code of Broadcasting Practice and is dealt with in Decision No. 2002-071/072.

[35] Having upheld these complaints, the Authority may make orders under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[36] TVNZ advised that it was prepared to pay $2,500 to Jane and Alex for the breach of privacy, and submitted that no further order was warranted, drawing the Authority's attention to the "considerable publicity" it considered likely as a result of the publication of the decision.

[37] Mr Elliott sought compensation for the women whose privacy was breached, in an amount to be determined by the Authority. He also requested that his expenses in the amount of $1,000 be paid to "The Health and Wellness Centre" of Hamilton's Fraser High School.

[38] Neither, FL, Mr Herrmann, nor Ms MacDonald made any submissions on orders.

[39] The Authority is of the opinion that the breaches of broadcasting standards on this occasion were extremely serious. It also considers that the action taken by the broadcaster after it recommended that the Authority uphold these privacy complaints was manifestly insufficient. The Authority therefore considers that, on this occasion, the payment of the maximum amount of compensation to the women whose privacy was breached, the broadcast of an approved statement and the payment of costs to the Crown is justified. Accordingly it imposes the following orders:

Orders

Pursuant to s.13(1)(d) of the Act the Authority orders Television New Zealand Ltd to pay the two women featured in the 21 May 2001 broadcast of Holmes each the sum of $5,000 as compensation for breaches of their privacy within one month of the date of this decision.

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be:

approved by the Authority;

read in conjunction with the statement which the broadcaster is required to broadcast in accordance with Decision No. 2002-071/072; and

broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(4) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, the sum of $2,500 by way of costs to the Crown.

The orders for the payment of costs and compensation shall be enforceable in the Wellington District Court.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
6 June 2002

Appendix I

The following correspondence was received and considered by the Authority when it determined FL’s complaint:

1. FL’s Privacy Complaint to the Broadcasting Standards Authority – 16 June 2001
2. TVNZ’s Response to the Privacy Complaint – 20 June 2001
3. FL’s Response – 5 July 2001
4. TVNZ's Submissions on Orders – 16 April 2002 and 8 May 2002

Appendix II

The following correspondence was received and considered by the Authority when it determined Martin Elliott’s complaint:

1. Martin Elliott’s Privacy Complaint to the Broadcasting Standards Authority – 21 May 2001
2. TVNZ’s Response to the Privacy Complaint – 20 June 2001
3. Mr Elliott’s Response – 25 June 2001
4. Mr Elliott’s Submission on Orders – 14 April 2002
5. TVNZ's Submissions on Orders – 16 April 2002 and 8 May 2002

Appendix III

The following correspondence was received and considered by the Authority when it determined Arne Herrmann’s complaint:

1. Arne Herrmann’s Privacy Complaint to the Broadcasting Standards Authority – 23 May 2001
2. TVNZ’s Response to the Privacy Complaint – 20 June 2001
3. Mr Herrmann’s Response – 1 July 2001
4. TVNZ's Submissions on Orders – 16 April 2002 and 8 May 2002

Appendix IV

The following correspondence was received and considered by the Authority when it determined Sarah MacDonald’s complaint:

1. Ms MacDonald’s Formal Complaint to Television New Zealand Ltd – 15 June 2001
2. TVNZ’s Response to the Formal Complaint – 21 June 2001
3. Ms MacDonald’s Referral to the Broadcasting Standards Authority – 17 July 2001
4. TVNZ’s Response to the Authority – 24 July 2001
5. Ms MacDonald’s Final Comment – 4 August 2001
6. TVNZ's Submissions on Orders – 16 April 2002 and 8 May 2002

¹Ms MacDonald's complaint contained aspects relating to both privacy standards and more general standards relating to fairness and balance. This decision deals with the aspects of the complaint relating to privacy only. The Authority's determination of the standards aspects of her complaint is contained in Decision No. 2002-071/072.

²As a consequence of upholding an aspect of Ms MacDonald's privacy complaint, TVNZ also upheld a breach of standard G4 of the Television Code of Broadcasting Practice because, it said, "a breach of privacy is intrinsically unfair". See Decision No. 2002-071/072.