BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The issue of breastfeeding another woman's baby was the subject of comment on the

weekly wrap-up programme on ZB Newstalk on 1 November 1996 about 10.30am. It

had been discussed earlier in the week when the mother of a baby who was breastfed

by someone else was interviewed.

Ms Sutton of Porirua, the mother of the baby, complained to the Broadcasting

Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the wrap-up

programme which discussed her situation breached her privacy, and contained

misinformation which was unfair to her.

The Radio Network's response to the privacy complaint emphasised that the

programme was a light-hearted panel discussion and was not intended to be a properly

balanced and researched presentation. The Radio Network maintained that Ms

Sutton's right to privacy was waived by her consenting to put the matter in the public

arena, and declined to uphold the complaint.

For the reasons below, the Authority declines to uphold the privacy complaint.

Decision

The members of the Authority have listened to a tape of the item complained about

and have read the correspondence (summarised in the Appendix). As is its practice,

the Authority determines the complaint without a formal hearing.

The mother of a baby who was breastfed by another woman when it was being looked

after by a babysitter publicly voiced her concerns about the practice. She was

interviewed on Newstalk ZB on 29 October, and on 1 November the topic was one of

the subjects of the weekly wrap-up programme called Yardstick. In that programme,

the host spoke to a panel of people about topics which had been in the news that

week. The panellists agreed that an important issue of informed consent was raised

by the breastfeeding issue and it was generally agreed that the mother was within her

rights to feel aggrieved. Concern was expressed however, at the amount of media

coverage the issue received, and a comment was made that the mother's anger

appeared to be extreme.

Ms Sutton complained directly to the Broadcasting Standards Authority under

s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached her privacy. In her

view, the wrap-up programme was not conducted in a satisfactory manner and the

issues she had identified during her interview earlier in the week were not summarised

fairly and adequately. She felt that her personal space was invaded and she was not

given an opportunity to correct misinformation and defamatory statements which

were made. She complained that the comments made by the host and his guests

caused her and her family great stress.

Ms Sutton explained that she brought the issue into the public arena so that people

could discuss the wider issues, such as the inherent risks of cross-nursing, the issue of

informed consent, the issue of culpability of the babysitting firm and the fact that

there seemed to be no organisation which looked after the rights of babies.

When it responded to the privacy complaint, The Radio Network emphasised that the

panel discussion on Yardstick was not intended to be a properly researched and

balanced presentation, even though it concerned a matter which could be considered

current affairs. It concluded that while it could understand, and sympathised with,

Ms Sutton's concern about continuing personal publicity, the fact remained that she

had brought the matter into the public arena herself. Therefore, The Radio Network

maintained, she had consented to an invasion of her privacy and could not later

succeed in a claim for a breach of privacy.

The Radio Network then turned to the privacy principles which the Authority

applies when it determines complaints about breaches of privacy. It referred first to

privacy principle (ii), which provides:

(ii) The protection of privacy also protects against 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 will have to be highly offensive to

a reasonable person.

The Radio Network argued that the principle did not apply because the time elapsed

between the original public reports and the comment programme was an insufficient

"passage of time" to render the facts private again.

The Radio Network then referred to principle (vii), which provides:

(vii) An individual who consents to the invasion of his or her privacy cannot

later succeed in a claim for a breach of privacy.

Noting that Ms Sutton had herself brought the matter to the attention of the public,

The Radio Network argued that she had therefore waived her right to privacy. It also

added that an individual who approached the media with a story could not expect to

be able to control the way the news was published, the editorial perception of what

interested the public, or the public reaction to the story. Finally, The Radio Network

noted that it was neither usual nor necessary to seek consent from newsmakers for

further development or references to a news story.

When reaching its decision, the Authority takes into account that the matter was put

into the public arena by the complainant herself. It accepts The Radio Network's

argument that an individual in that situation could not expect to be able to control the

way the topic was discussed or to be advised when the subject would be discussed

again. In the Authority's view, having been brought to the public's attention, the

topic then became open for discussion. Inevitably, Ms Sutton's experience was the

catalyst for the discussion but, the Authority notes, the topic was discussed in general

terms and although comment was made about her feelings of outrage, Ms Sutton's

name was never mentioned.

The Authority agrees with The Radio Network's application of privacy principle

(vii), and it too concludes that her privacy was not breached by the broadcast.

Nevertheless it can understand that Ms Sutton felt aggrieved that her personal

situation was discussed in what she perceived as a careless and cavalier manner by

people who were not acquainted with the full facts. Unwelcome as the media

attention may have been, the Authority reiterates The Radio Network's argument that

once Ms Sutton had put the matter into the public domain, she surrendered control

over how the information was used and conveyed.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
6 March 1997

Appendix

Ms Sutton's Complaint to the Broadcasting Standards Authority - 21 November

1996

Pam Sutton of Porirua complained to the Broadcasting Standards Authority under

s.8(1)(c) of the Broadcasting Act that her privacy was breached by the broadcast of a

panel discussion on Newstalk ZB on 1 November 1996 at about 10.30am, in which the

topic was the issue of a stranger breastfeeding a baby without the mother's consent.

Ms Sutton is the mother of an 8-month old baby who was breastfed by a stranger and

had been interviewed earlier in the week when she publicised the issue.

She considered that the wrap-up programme at the end of the week was not conducted

in a satisfactory manner and that the issues which she had made clear during the

previous radio interview had not been summarised fairly and adequately. She added

that there were several incorrect statements made in the discussion.

Ms Sutton complained that she was not given any right to correct the misinformation

and felt that her personal rights had been invaded. She wrote:

It took great courage for me to make a stand for something so personal as my

baby's breastfeeding rights and I was not prepared for the extent of public

condemnation and misinterpretation of the facts. The ill-considered comments

of the broadcaster and his guests has caused great stress to myself and my

family.

Ms Sutton added that the reason she brought the issue to the attention of the public

was to enable people to discuss the wider issues, such as the inherent health risks

associated with cross-nursing, the issue of informed consent, the issue of the

culpability of the babysitting company and the fact that there seemed to be no

organisation which was looking after the rights of babies.

The Radio Network's Response to the Authority - 26 November 1996

The Radio Network of New Zealand Ltd responded that while the item might have

been seen as "current affairs", it was not intended to be a properly researched and

balanced presentation but was a panel discussion of a lighter nature.

While it understood and sympathised with Ms Sutton's complaint to the Authority,

when it assessed the complaint against the Authority's seven privacy principles, it

decided the complaint must fail. It believed that in making the matter public in the

first instance, Ms Sutton had "consented to the invasion of her privacy". Therefore,

The Radio Network concluded, she could not later succeed in a claim for breach of

privacy.

Reviewing the other six principles, it did not consider the second principle would

apply because the time elapsed between the original public reports and the comment

programme had been insufficient "to generate the situation the second principle

envisaged".

Referring to the seventh principle, The Radio Network considered there was sufficient

evidence to support the notion that she had given her consent to the publicity. It

added:

As a relevant side issue, the Company would seriously point out that those

who approach the news media, print or electronic, with a "good story" ought

not always to expect, despite the most socially responsible intentions, to be

able to control the way news is published, the editorial perception of the

aspects of public interest or concern, or the public reaction which may follow.

Those issues, The Radio Network suggested, more properly belonged to a

consideration of questions other than privacy, and noted that a complaint on

standards matters had been received.

Ms Sutton's Final Comment - 2 December 1996

When asked to make a brief final comment, Ms Sutton first expressed her concern that

the Authority's seventh privacy principle appeared to negate an invasion of privacy

breach when an individual gave consent in the first place.

She added that she had not been aware that she had given up her rights for her

personal life to be handled in a fair and reasonable manner on the air and that she

considered the principle to be unjust.

Ms Sutton advised that she had agreed to be interviewed (earlier in the week) so that

the issues of breastfeeding without consent could be aired on the talkback programme.

She was unaware that the issues would be revisited four days later and suggested this

was a breach of her privacy, especially as she was not given a chance to correct

incorrect information that was advanced.

To The Radio Network's argument that insufficient time had elapsed between the first

interview and the wrap up session for principle (ii) to come into effect, Ms Sutton

commented that she was unsure upon what basis that conclusion was made. She

added that she was highly offended and stood by her original complaint of breach of

privacy. She concluded:

In reply to [the Complaints Coordinator's] comments re the outcomes of going

to the media with a "good story". It is the media's (whether print or

electronic) responsibility to uphold the integrity of its profession by ensuring

balanced and accurate reporting and commentary at all points of a story's life,

whether that be one day or three weeks!

Further Correspondence

In a letter dated 6 December 1996 The Radio Network clarified some points made by

Ms Sutton. First it noted that privacy principle (vii) formalised a commonsense rule.

It regretted that its reference to two privacy principles caused confusion to the

complainant.

Secondly, it repeated that the programme was not a news or current affairs report, but

an end-of-week panel review of recent events. It noted that the introduction referred

to the baby sitter having fed the child, but accepted that it was in fact another woman

who did so, with the sitter's agreement. It accepted that was an inaccuracy, but

pointed out that since the programme was neither a news programme or a current

affairs report, standard R1 did not apply, and further, that the error had no bearing on

the panel discussion.