BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A news item broadcast on TV One on 11 February 1998 at 6.00pm included

photographs and the names of four people who had been at the Furneaux jetty when

two young people went missing in the Marlborough Sounds. The photographs had

been released by the Police in conjunction with an investigation.

The Police complained to the Broadcasting Standards Authority under s.8(1)(c) of the

Broadcasting Act 1989 that naming the people breached their privacy, because there

was a specific request in the accompanying press release that they not be identified by

name. The Police also complained to Television New Zealand Ltd, the broadcaster,

that by being named, the four people had not been treated justly and fairly. The

Police requested both a public and a private apology.

TVNZ did not consider that because the four people were named that they were

treated unfairly, it wrote. Dealing with the privacy aspect of the complaint, TVNZ

considered that by consenting to have their photographs published, the four people

had implicitly consented to having their privacy invaded. Further, TVNZ argued that

the matter was in the public interest, and that this was a defence to the claim to

privacy.

Dissatisfied with TVNZ's response on the standards matters, the Police referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaints.

Decision

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

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaints without a formal hearing.

In an effort to jog the memory of witnesses, the Police involved in Operation TAM

released photographs of four young people who were at the jetty when two friends

vanished in the Marlborough Sounds early on New Year's Day. TVNZ's One

Network News on 11 February 1998 at 6.00pm contained an item which showed the

photographs and named the four people.

Detective Inspector Rob Pope, on behalf of the Police and Operation TAM,

complained to the Broadcasting Standards Authority under s.8(1)(c) of the

Broadcasting Act that naming the four people, contrary to a specific request that they

not be named, contravened their privacy. To the broadcaster, the Police complained

that it was unfair to name the four, and requested both a public and private apology.

The Police emphasised that they had made an agreement with the four people that

their photographs would be released only on the understanding that they would not be

named, and that Detective Inspector Pope had given them an undertaking to that

effect. Furthermore, the Police noted, all other media had respected the request that

the four people not be named.

The Police referred to a letter received from TVNZ's reporter in which she apologised

for failing to get permission before broadcasting the names. She advised the Police

that it was the news department in Auckland which had made the final decision to run

with the item which named the witnesses.

In its response, TVNZ dealt first with the letter of apology which the Police had

received from the reporter. It advised that had the reporter passed on certain

information, the item which was screened might have been different. However, it

stressed, the reporter's failure to follow established procedures was not necessarily

the same thing as breaching statutory programme standards.

Furthermore, TVNZ added, the press release which accompanied the photographs did

no more than request that the media respect the four people's privacy. The wording

of the press release, TVNZ argued, allowed for editorial discretion as to how the

information was to be used. It did not, TVNZ continued, amount to a denial of access

to the pictures if the names were published.

The Standards Complaint

When the standards complaint was referred to the Authority, the Police maintained

that the request not to release certain details about the four witnesses was

unequivocal, and amounted to an instruction. In its report to the Authority, TVNZ

disputed that interpretation of the media release, pointing out that it merely asked that

the media respect the witnesses' privacy. In their final comment to the Authority, the

Police reported that at the Press Conference where the media release was issued,

numerous media had been present and all, with the exception of TVNZ, had

understood and abided by the request not to publish the witnesses' names.

TVNZ considered the complaint under standards G4 and G15, nominated by the

Police. Standard G4 requires broadcasters:

G4   To deal justly and fairly with any person taking part or referred to in

any programme.

The other standard reads:

G15  The standards of integrity and reliability of news sources should be

kept under constant review.

As far as standard G4 was concerned, TVNZ did not accept that any one of the four

people was treated unfairly by being named in the item. It advised that it intended to

subsume the standard G4 complaint under privacy, considered below.

With respect to the complaint that standard G15 was breached, TVNZ advised that it

did not consider the standard to be relevant. It pointed out that in this case the news

source was the Police, and that it was confident of the reliability and integrity of that

source. TVNZ added that it was also grateful for the level of cooperation and

assistance it had received in covering the story of the missing friends.

In considering the complaint under standard G4, the Authority's task is to determine

whether, in the circumstances, it was fair to the four people to be named by TVNZ.

It understands that the Police were conducting a very difficult investigation into the

disappearance of the two young people and, as part of the inquiry, had distributed

photographs of four others who were at the jetty prior to the disappearance of their

two friends. Because of the high public interest in the case, and the fact that one or

more of the four people had been named and appeared in the media previously, the

Authority considers that the Police were being somewhat unrealistic in requesting that

their identities not be revealed when the photographs were published. It considers

that individuals who unwittingly become involved in a major criminal investigation

inevitably forfeit some privacy rights and, in this case, since one or more of them had

already been identified in the context of the inquiry, the Authority does not consider it

was possible for the Police to assure them that they would retain their anonymity.

Further, once the photographs were released into the public arena, the Police could no

longer retain control over how the pictures would be used or whether the four would

be identified by name. An image in itself enables identification, the Authority

considers, which in this case was possible with independent verification.

The Authority is aware that the reporter later acknowledged that she should not have

released the names; that anonymity was a specific request when the Police released

the pictures. It also understands newsgathering imperatives which would drive her to

reveal them, particularly as she already knew the names, and had sought and been

granted permission to reveal the name of one of the four. In the Authority's view, her

professional behaviour was a matter for the broadcaster and its relationship with the

Police, and did not constitute a breach of broadcasting standards so much as possibly

one of ethical standards.

The Authority acknowledges a difficulty here in that Police can issue no more than a

request to reporters in relation to disclosures such as this, and are not empowered to

issue instructions, or to disclose information under constraints which can be effective

other than by mutual agreement.

Next, the Authority turns to the complaint under standard G15. The Police did not

respond to TVNZ's claim that the standard was irrelevant. The Authority interprets

this aspect of the Police complaint as relating to the responsibility of the reporter,

who was the source of information to the newsroom, and to the newsroom

imperatives which dictated the course of the news production process. However, in

the Authority's view, the standard is confined to the integrity or reliability of the

source of the news. Here, it was the Police who were the source of the news, and

there is no dispute about their integrity or reliability. Accordingly, the Authority

concurs with TVNZ that the standard was not relevant. It notes that the matters

raised under this head are dealt with above in the discussion of unfairness.

The Privacy Complaint

The Police complained that the Authority's privacy principle (v) was breached by the

broadcast. That principle reads:

(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).

Principle (vi) referred to there reads:

(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.

The Police emphasised that in asking the four people to participate in the photo

identification, they had given them an undertaking that their privacy would be

respected. It added that their names and faces were not generally public property, and

the four people did not wish them to be in the public arena.

TVNZ responded that privacy principle (v) specifically excluded details which were

public information. It argued that the four had been identified individually in the

media coverage of the case, and that their names were a matter of public record and,

especially in the Blenheim area, their identities were well known. TVNZ also argued

that by consenting to appear in the photographs, they had implicitly consented to

their privacy being breached. It cited principle (vii) which states:

(vii) An individual who consents to the invasion of his or her privacy,

cannot later succeed in a claim for a breach of privacy.

With respect to principle (vi), TVNZ submitted that it was clearly dealing with a

matter of public concern. It therefore concluded that there was no breach of the

Authority's privacy principles.

In the Advisory Opinion in which the Authority recorded the privacy principles it

intended to apply when determining privacy complaints, it acknowledged that the

principles enunciated might require amplification or elaboration as different factual

situations were encountered. It also emphasised that the specific facts of each

complaint were especially important when privacy was an issue.

In the Authority's view, none of the principles enumerated were intended to deal with

a situation such as this, where consent was given to the release of a visual image, but

not to being named. As noted above, it is of the view that when the names were

already in the public arena in the context of the inquiry, it was unrealistic for the

Police to expect that anonymity could be maintained when the photographs were

released.

Although the four young people may have been reluctant media performers, they were

unwittingly bound up in the inquiry by virtue of their being at Furneaux Lodge on the

night their two friends went missing. The information contained in the photographs

alone was sufficient to identify them positively to those who knew them, and the

Authority considers that the young people must have been well aware that there was

a potential for their identities to become widely known. The Authority therefore

concludes that privacy principle (vii) applies because the four had implicitly

consented to an invasion of their privacy by agreeing to the use of their photographs.

Furthermore, the exemption for news and current affairs reporting under principle (v)

is also applicable.

The Authority concludes that there was no breach of privacy.

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

complaints.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
25 June 1998

Appendix

The Police's Complaint to Television New Zealand Ltd and the Broadcasting

Standards Authority – 20 February 1998

The Police (Operation TAM) complained about an item on One Network News

broadcast on TV One at 6.00pm on 11 February 1998. The item related to the

missing persons inquiry into the disappearance of Ben Smart and Olivia Hope. Earlier

that day, Operation TAM had issued a press release along with photographs of four

witnesses known to be at the Furneaux jetty shortly before Ben and Olivia went

missing. It was released in an attempt to jog the memory of anyone else who may

have been there.

The Police noted that the four witnesses agreed to have their photographs released, on

the understanding that their names would not be published. It pointed out that the

press release specifically asked that their privacy be respected.

All news media respected the request, except for TVNZ, the Police continued. When

their photographs were shown in TVNZ's news item, the four people were named.

The Police advised that the reporter had, in a letter to Detective Inspector Pope,

personally apologised and had admitted that she failed to get approval to broadcast

the names. The Police considered that the item breached standards G4 and G15 of the

Television Code of Broadcasting Practice and privacy principle (v) of the Privacy

Code.

With respect to the privacy aspect of the complaint, the inquiry head wrote:

In asking these four people to take part we gave them an undertaking that their

privacy would be respected. I am extremely disappointed that your news

team chose to flagrantly abuse their and our request for this privacy. Their

names and faces were not generally public property, certainly not in this

context, nor did they wish them to be in the public arena.

As part of this process of complaint I ask that both public and private

apologies be made.

The Police also suggested that a personal letter of apology to each of the four people

be made.

The Police attached a copy of the press release issued with the photographs and a

copy of the reporter's letter of apology.

TVNZ's Response to the Formal Complaint – 12 March 1998

TVNZ advised that it considered the complaint under the standards G4 and G15 as

nominated by the Police. Before addressing those matters, TVNZ explained the

context in which the Police had received a copy of a letter from the reporter in which

she had apologised for her actions and had advised that she had been taken off the

assignment. It wrote:

We acknowledge that, had the reporter passed on certain information, the

content of the item screened on One Network News may have been different.

The subsequent inquiry into the procedures followed by the reporter is an

internal matter for TVNZ and was handled that way.

It is important to stress however that a reporter's failure to follow established

procedures is not necessarily the same thing as breaching statutory programme

standards.

TVNZ contended that the wording of the press release allowed for editorial discretion

in how the information was to be handled. Although the Police had apparently given

the four people an undertaking that their privacy would be protected, the press release

contained no more than a request that the news media respect their privacy. In

TVNZ's view, it did not amount to a denial of access to the pictures if names were to

be published.

TVNZ did not accept that any of the four people was treated unfairly for being named

in the item. It subsumed the issues raised under standard G4 into the matters of

privacy which it dealt with subsequently.

Referring to standard G15, TVNZ considered that in this instance the standard was

irrelevant. It noted that the news source was the Police and it was confident of the

reliability and integrity of that source.

It then turned to the matter of privacy. TVNZ contended that privacy principle (v)

could not be considered in isolation, and that privacy principles (vi) and (vii) also

needed to be considered.

With reference to principle (v), it noted that the principle specifically excluded details

which were public information. TVNZ argued that the four had been identified

individually in media coverage of the case. Their names were a matter of public

record, and further, in the Blenheim area, their identities were well known.

TVNZ also argued that by consenting to appear in photographs released by the

Police, the four people at least implicitly consented to their privacy being invaded

(principle (vii).

TVNZ advised that it did not understand what was meant by the Police argument that

the faces of the four were not generally "public property" and certainly not in that

context. It submitted that their identities were already in the public domain, and that

the privacy door could not be open and shut at random.

As far as principle (vi) was concerned, TVNZ maintained that clearly it was dealing

with a matter of legitimate concern to the public. It concluded that the broadcast did

not breach any broadcasting standards or the privacy principles.

TVNZ acknowledged that from an editorial/procedural point of view the item had its

problems, but did not accept that the item was in breach of the Codes of Broadcasting

Practice.

The Police's Referral to the Authority – 25 March 1998

Dissatisfied with TVNZ's response, the Police referred the standards complaint to the

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

The Police advised that they considered the instructions not to release personal details

about the four witnesses as unequivocal, and this was breached by TVNZ.

Notwithstanding the apology from the reporter, the Police considered it important to

draw TVNZ's and the witnesses' attention to the fact that blatant breaches of the

Code were not acceptable under any circumstances.

The Police noted that the apology was from an individual reporter, and not from the

organisation, which had to take responsibility for the actions of its staff. The letter

concluded:

In any inquiry it is important to stress that public interest issues, which

clearly encompass the rights of individuals, must have some counterbalance

with the competing interests of the media.

TVNZ's Response to the Authority – 6 April 1998

TVNZ first disputed Mr Pope's assertion that the request not to release personal

details of the four witnesses was "unequivocal" and an "instruction". It argued that it

was neither of those things, and pointed to the relevant passage in the media release

where it was written: "he asked that people and the media respect their privacy."

TVNZ added:

To ask is to request; it does not amount to an unequivocal order.

TVNZ also pointed out that it was customary when releasing media material to place

restrictions on its use in bold type at the top. Had this been intended to be a rigid

instruction, it suggested that Mr Pope should have chosen a stronger word than asked

and should have given the matter more prominence in the media release.

Secondly, as far as the apology from the reporter was concerned, TVNZ drew

attention to its 12 March letter in which it acknowledged that had the editorial staff

been in possession of all the information, the item screened may have had a different

shape and content. TVNZ continued:

However, the reporter's letter and my acknowledgment are not the same thing

as admitting a breach of the statutory standards. In examining this complaint

we carefully tested it against standards G4, G15 and privacy principle (v) and

were unable to conclude that the standards had been infringed.

The Police's Final Comment – 20 April 1998

The Police, through Detective Inspector Pope, maintained that at no stage of the

complaint had TVNZ demonstrated any spirit of compliance. Mr Pope pointed out

that at the Press Conference when the media release was issued, numerous media,

including television, print and radio, were present. All, except for TVNZ, understood

implicitly and explicitly the request made by the Police not to publish the witnesses'

names. Mr Pope wrote:

The request made by the Police was made in an environment of co-

operativeness and apart from TVNZ all media complied without question.

The unusual nature of releasing witness photographs and the reasons for such

a move were carefully explained to all present, and it appears that the public

interest issues was lost on no-one except TVNZ.

To illustrate its point further, the Police noted that TV3's reporter was asked by the

newsreader to identify the four witnesses by name, but in spite of persistent

questioning, declined to do so, stating that the media had been specifically asked by

the Police not to name them. The Police continued with:

...the further point that immediately following the Press Conference, the

TVNZ reporter, [...], was overheard by Police staff commenting to her

Programme Department on cellphone words to the effect that "Police don't

want the names of the witnesses published, I know their names, is there any

way we can get around this." Regardless of whatever connotation is placed on

that reporter's behaviour I personally find it as a flagrant breach of trust and

totally counter to any acceptable broadcasting standard.

I think it is naive and dismissive of [TVNZ] to suggest that editorial staff were

not in possession of more facts than what is indicated in [its] correspondence.

In a postscript, Mr Pope added:

At the time after the TV 1 broadcast I am aware of at least 2 reporters who

expressed their abhorrence of such a release of information. One, the Chief

Reporter at the Marlborough Express was sufficiently concerned that an

independent complaint to the Broadcasting Standards Authority was being

contemplated.

The general sentiment of the gathered reporters was that TVNZ went "over

the top". A number are quite happy to be spoken to if necessary, perhaps as

an independent internal perspective.

Further Correspondence

Having received a copy of the Police's final comment, TVNZ advised that it wished to

comment further.

First it expressed surprise that a senior police officer should make a number of

allegations which were hearsay and prejudicial, and with limited probative value. It

considered it irrelevant what the reporter said on the cellphone, how TV3 reported the

story, and what the Chief Reporter of the Marlborough Express had to say.

It submitted that the sole issue to be determined was whether the actual broadcast of

the names of the four people breached their privacy. It wrote:

There cannot, we suggest, be any breach of privacy when the photographs of

the four immediately identify them (whether or not their names are used). The

four obviously agreed with the police that the photographs could be put in the

public domain and this would include broadcast on One Network News. That

in itself is an implicit (at very least) consent to disclosure of other particulars

such as names.

Secondly, TVNZ noted that Mr Pope now acknowledged that it was a "request" not

to publish the names, and not a firm directive. It considered it not surprising that a

busy reporter would regard them more in the nature of a preference. In other words, it

argued, the discretion was left with each reporter as to whether and how in the context

of that particular media's reporting of the news conference, the names would be used.

TVNZ regarded it as significant that the Media Release did not say that the four

witnesses had allowed the photographs to be released only on an understanding or

undertaking. It considered that in order to avoid any possible uncertainty or

misunderstanding, the police should have made it clear that the an undertaking had

been given that the four names would not be released.

TVNZ continued:

Given that the photographs of the four people were released it must be at least

equivocal whether any privacy issues in fact arise. A photograph of a

particular person is equally distinguishing of a person as a name.

TVNZ argued further that as the police were aware of the intense media interest in the

disappearance of the two young people, it was up to them to lay down the ground

rules, rather than release the photographs on a basis that was left to the subjective

interpretation of any reporter.

The fact that Mr Pope may find it a "flagrant breach of trust and totally counter to

any acceptable broadcasting standard", was TVNZ argued, not directly relevant to the

matter at issue.

TVNZ concluded that by broadcasting the names of people immediately identifiable

from their photographs, their privacy was not invaded.

Further Correspondence

In a letter dated 29 April, the Police emphasised that its stance had already been put

in earlier correspondence.

Mr Pope wrote:

I have no wish to argue with TVNZ their vacillating standards of interpretation

of what is or is not the issue in point. It appears to me that the obligation of

responsible reporting should be fostered within an environment of co-

operation and sensitivity towards the particular circumstances of every

inquiry. Put bluntly I have no time for the pedantic adherence or reliance by

[TVNZ] on issues of apparently perceived technicality, to defend the position

of TVNZ.

Mr Pope advised that no further representation would be made