BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The response by the Wellington Free Ambulance service to the fatal collapse of a

woman in Wainuiomata was examined during an item broadcast on 20/20 at 6:30pm on

27 July 1997. The item played extracts from an audio tape of the incident recorded at

the time in the Wellington Free Ambulance control room.

Mr James complained to TV3 Network Services Ltd, the broadcaster, that the

broadcast had breached his privacy. That had occurred when the tape of the incident

referred to his first name twice, and to his surname once.

Pointing out that Mr James's name was given fleetingly and he had not been referred

to unfavourably, and on the basis that the incident dealt with in the item was a matter

of considerable public interest, TV3 did not accept that Mr James's privacy had been

breached.

For the reasons below, the Authority upholds the privacy complaint and orders the

broadcaster to pay compensation of $500 to Mr James.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). In this instance, the Authority

determines the complaint without a formal hearing.

A 20/20 item broadcast on 27 July raised serious questions about the competence of

some aspects of the Wellington Free Ambulance service. A considerable part of the

item involved playing an audio tape from the Ambulance service control room about

an incident in Wainuiomata which involved the collapse and death of a woman.

At one stage during the item, viewers were told to listen carefully to a forthcoming

exchange. Although the main point made in this part of the broadcast was the

unsatisfactory state of the control room organisation, viewers also heard a comment

that "Gary James" was going "in the helicopter". At another point in the broadcast,

he was heard to ring up the control room, give his name as Gary, and state that the

patient was now "status five".

Mr James complained to TV3 that the broadcast of his name breached s.4(1)(c) of the

Broadcasting Act 1989, which requires broadcasters to maintain standards consistent

with the privacy of the individual. Because of the nature of the incident covered in the

item, he wrote, he had been wrongly implicated in its outcome. He asked why his

name had not been "bleeped out". He sought a written apology and public

explanation that he was not in any way implicated in the patient's condition.

Arguing the references to Mr James were fleeting, TV3 assessed the complaint against

principles v) and vi) of the privacy principles applied by the Authority. They

provide:

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).

vi) Discussing the matter in the "public interest", defined as of legitimate

concern or interest to the public, is a defence to an individual's claim

for privacy.

TV3 maintained that it was in the public interest to report that a paramedic or an

advanced care officer, was available in Eastbourne and that Mr James, as a coronary

care officer, had to be taken to the scene by helicopter.

Noting in addition that Mr James, as a uniformed ambulance officer, would ordinarily

have an obvious public profile and therefore could expect to be recognised, TV3

declined to uphold the complaint.

When he referred his complaint to the Authority, Mr James maintained that the

broadcast of his name was a breach of privacy. He acknowledged that the reference

was fleeting but, nevertheless, he had been required to explain his part in the incident

on several occasions. Some people had assumed that he was involved in the patient's

death. He disputed TV3's claim about his high public profile as an ambulance officer,

explaining that he only ever identified himself to patients as Gary, in order to maintain

some privacy.

In its comment to the Authority, TV3 continued to argue that the complaint should

fail because the matter was of legitimate concern to the public. It enclosed a copy of

the independent review of the incident which was undertaken after the broadcast. It

also questioned whether complaints to the Authority about the item were, in some

way, being orchestrated by the Wellington Free Ambulance management and union

delegates.

In his final comment, Mr James observed that he was bringing the complaint on his

own initiative. He continued to express his concern that his name had been broadcast.

In its determination of this complaint, the Authority begins by recording its agreement

with TV3 that the incident explored by TV3 "was a less than favourable episode for

the Wellington Free Ambulance". It also accepts without question that the incident

discussed in the broadcast was of legitimate concern to the public.

The item reported that Gary James was taken to the incident by helicopter. However,

the length of the time taken for the controller to summon the helicopter was the focus

of considerable adverse comment in the item. Moreover, the fact that the controller

assigned Mr James from Wellington, rather than use a paramedic who could have been

picked up en route in Eastbourne, was also an element of the criticism directed at the

Service.

If Mr James's name and address were central to the incident explored during the item,

the Authority would accept that it was appropriate for his name to be used.

However, that was not the case. Indeed, and in contrast to the publication of Mr

James's name, the item did not give the full name of the controller who was the central

figure in the events disclosed. Nor did it provide the name of the informant who

commented on the tape.

The Authority agrees with TV3 that privacy principle (v) is the appropriate guideline

to apply to this complaint. On this occasion, Mr James's full name was broadcast

without his consent. Principle (v) contemplates an exception in respect to news and

current affairs reporting. But where, as here, the identity of the person named is

irrelevant to the item and has the potential to cause embarrassment, the Authority is

not satisfied that the exception should apply.

The Authority disagrees with TV3 that privacy principle (vi) is applicable. There is

no dispute that the broadcast which dealt with the incident was in the public interest,

however, the Authority considers that public interest did not justify the broadcast of

Mr James's name. Further, the Authority does not accept that Mr James as an

ambulance officer would ordinarily have a high public profile. It further observes that

there is no issue of accountability on his part in regard to this specific incident.

For the above reasons, the Authority upholds the complaint that the broadcast

by TV3 Network Services Ltd of an item on 20/20 on 27 July 1997, by giving the

name of Ambulance Officer Gary James, breached s.4(1)(c) of the Broadcasting

Act 1989.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989. Mr James claimed that his ability as an ambulance officer was

questioned when his name and address were broadcast in relation to an incident which

reflected badly on the Wellington Free Ambulance service. Although there were in

fact no aspersions cast on Mr James, the Authority can understand why some people,

because his name was mentioned in full, expressed to him their distaste about the

incident. In the Authority's opinion, this was unjust and it considers that

compensation of $500.00 is appropriate.

The Authority has given some thought to suppressing Mr James's name in its

decision. However, because he sought "a public retraction", the Authority decides

that it is not inappropriate to include his name in this decision.

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Authority orders TV3

Network Services Ltd to pay compensation to Mr James in the sum of $500.

This sum is to be paid within one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
16 October 1997

Appendix

Mr James's Complaint to TV3 Network Services Ltd – 31 July 1997

Gary James of Wellington complained to TV3 Network Services Ltd about a 20/20

item referring to the Wellington Free Ambulance Service, broadcast at 6:30pm on

Sunday 27 July 1997. Mr James said that his first name was heard twice, and his

surname once, during the broadcast.

As he had not given TV3 permission to use his name, Mr James said that his privacy

had been invaded, and he had been wrongly implicated in the outcome of the incident

covered in the item.

Mr James asked why his name had not been blanked out, and did not the broadcast of

his conversation with the controller contravene telephone regulations? He sought a

written apology and a public retraction explaining that he was not in any way

implicated in the patient's condition.

TV3's Response to the Formal Complaint – 20 August 1997

Assessing the complaint on the basis that the broadcast had allegedly invaded an

individual's privacy, TV3 agreed that Mr James's name had been mentioned twice -

once just the use of the first name, and the second the use of the full name. A

transcript was included recording the occasions when this had occurred.

Referring to principles (v) and (vi) of the privacy principles applied by the Authority,

TV3 stated that the references were fleeting and were not critical. The use of the

control room audio, it argued, was in the public interest as it showed that a paramedic

was available in Eastbourne and Mr James, as a coronary care officer, had to be taken

to the scene by helicopter. Further, TV3 considered that Mr James, as a uniformed

Ambulance officer, would ordinarily have an obvious public profile.

In summary, TV3 did not uphold the complaint as the events dealt with were matters

of legitimate concern to the public.

Mr James's Referral to the Broadcasting Standards Authority – 28 August 1997

Dissatisfied with TV3's decision, Mr James referred his complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Pointing out how his name had been used when TV3 broadcast the stolen tape from

the control room, Mr James maintained that it had involved an invasion of his privacy.

Mr James acknowledged that the use of his name had been fleeting, but nevertheless,

as a consequence of the broadcast, he had been required to explain his part in the

incident on several occasions. "Several ill informed people" he wrote, had asked if he

was involved in the patient's death.

Mr James objected to TV3's comments about an "obvious public profile". Explaining

that he only identified himself to patients as "Gary", he said the Service used

confidential phone lists to avoid officers being tracked down and abused. He

concluded:

I feel that the use of my name and other names was NOT good quality reporting

practice, and that the mention of my name was of no interest to the public.

Why was my name not "beeped" over as was all the swear words. I feel that

this invaded my privacy as an individual.

TV3's Report to the Authority – 12 September 1997

In its report to the Authority, TV3 emphasised the argument that the privacy

complaint had to fail on the grounds that the matter dealt with in the broadcast was of

legitimate concern to the public.

Pointing out that the source of the tape was not a matter of broadcasting standards,

TV3 commented that it had not stolen the tape. TV3 also attached the minutes from a

meeting between the New Zealand Workers Union and the Wellington Free

Ambulance management (dated 1 August 1997) in which it was reported that

complaints to the Broadcasting Standards Authority were being arranged. TV3

added that it was concerned that the campaign would mean that the messenger was

shot while the message was ignored.

TV3 also enclosed a copy of the independent report on the response of Wellington

Free Ambulance to the call featured in the item. This document, it was said,

reinforced the argument as to the public interest in the matter addressed in the

broadcast.

Mr James's Final Comment – 23 September 1997

Explaining that he was concerned that his name was broadcast, not about the publicity

given to the incident which was the subject of the item, Mr James maintained that his

name had no bearing on the outcome of the incident explored. He also reported that he

had received no assistance with his complaint from management or union. He

concluded:

My complaint is that my name was broadcast and I see the principle of

commonsense and decency as being involved in this case.