BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An item in Crimescene broadcast on TV2 on 7 July 1998 between 7.30–8.00pm focussed on a case where a man had assumed the identity of a dead child to defraud the student loan scheme. Photographs of a number of people who had been involved in fraudulent schemes in the past accompanied the item.

T, whose picture was featured, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that his privacy was breached. He pointed out that he had already been convicted, had served his sentence and deserved the right to begin his life afresh. He maintained that his case had no relevance to the item.

In its response to the Authority, Television New Zealand Ltd submitted that Mr T’s conviction occurred last year in the context of a high-profile fraud case, for which others were still serving sentences. It contended that the facts of the case were public information and submitted that the matter was subject to the public interest defence.

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

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 complaint without a formal hearing.

An item on Crimescene broadcast on TV2 on 7 July 1998 at 7.30pm referred to a scheme by which a man had assumed the identity of dead children to defraud the student loan scheme. The item then went on to report that last year a group of people who had defrauded the student loan scheme had been imprisoned, and pictures were shown and names given of some of the members of the group outside the court where they were tried.

T, one of those whose picture was featured, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached his privacy. He maintained that his case was not relevant to the one which had been featured on the programme, and furthermore, it concerned events which were well in the past. He argued that as he had served his time in prison it was unfair that the matter was brought before the public again. T contended that it made it difficult for him to start again in life if he was constantly confronted with events which had occurred in the past.

In its response to the Authority, TVNZ said it accepted that T felt remorse about his conduct and that he considered that having been released from prison, he felt he had paid his debt to society. However, it submitted, as T’s case was public information, reference to it did not constitute a breach of privacy.

TVNZ advised that it had assessed the facts in relation to the Authority’s Privacy Principle (ii). That principle reads:

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.

While TVNZ accepted that T’s conviction would become a private fact in time, it pointed out that it occurred only last year and was a high-profile case for which, it understood, others were still serving prison sentences. It did not concede that sufficient time had elapsed for it to have become a private fact again.

TVNZ then examined the complaint against privacy principle (v), which 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).

It accepted that the principle was applicable, in that T’s name had been broadcast without his consent, but noted that it was subject to the public interest defence in principle (vi). That principle states:

(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.

TVNZ submitted that the details of his offending were and are public information. It argued that in the context of an item which sought to enlist public support in the apprehension of another person who was similarly defrauding the student loan scheme, the reference to the earlier case was very much in the public interest.

TVNZ concluded that there were no grounds to uphold the complaint that T’s privacy was breached.

The Authority has some understanding for T’s position, in that he, and others in his group, were used as an example to illustrate a story about a different kind of fraud against the same loan scheme. It acknowledges that he was of the view that he had paid the penalty and that the matter should end there.

When it deals with privacy complaints, the Authority applies the Privacy Principles which have been cited above by TVNZ. It agrees that in this instance, principles (ii), (v) and (vi) are relevant.

Privacy principle (ii) is directly applicable to these facts. The Authority notes that the facts which were disclosed were public, the filming of the participants in the fraud scheme occurred in a public place, and the details of the case were also public. The question for the Authority was whether sufficient time had elapsed to render the facts private again. As the trial occurred only last year, the Authority concludes that it had not. However, even if it had, it does not find the public disclosure of the facts would have been offensive to a reasonable person and thus been in breach of principle (ii).

In addition, the Authority finds relevant the public interest defence in principles (v) and (vi). The loan scheme fraud case attracted a significant amount of media attention when it was heard, and the case was used in Crimescene to illustrate the gravity of the offending which was being perpetrated by the man using stolen identities. The Authority concludes that it was relevant to refer to the earlier case as it helped to put the present matter in perspective.

The Authority has suppressed T’s name in this decision as it sees no reason to deviate from its practice in this regard.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
1 October 1998

Appendix

T’s Formal Complaint to the Broadcasting Standards Authority – 21 July 1998

T of Wainuiomata complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that an item in the Crimescene programme broadcast on TV2 on 7 July between 7.30-8.00pm breached his privacy.

The item, which examined a case in which a man had assumed the identity of a dead child to defraud the student loan scheme, included photographs of a number of people who had been convicted of and jailed for their part in a previous attempt to defraud the scheme.

T, whose picture was one of those featured, complained that it was an invasion of his privacy and discriminatory. He maintained that he was not a wanted or sought after person, and said he could not see how his case was relevant to the person police were seeking. He also pointed out that he had been convicted, sentenced and had served his time, and was trying to put the matter behind him and start his life afresh. He wrote:

How can anyone do this, when people like your show constantly show past cases. (An example: At the bank, next day the teller made a comment "Oh you were on Crimewatch last night". I agreed and when I went to draw out money she requested 2 IDs. This has never happened to me before.)

T also asked how he could start a new life when people were constantly bringing up the past. He said it was no wonder people committed crime over and over again.

In T’s view, an apology was in order. He advised that he was seeking legal advice on the matter.

Television New Zealand Ltd’s Response to the Authority – 31 July 1998

In its summary of the item, TVNZ noted that it concerned a case in which a man had assumed the identity of a dead child in order to defraud the Student Loan Scheme. In emphasising how seriously the law regarded such fraud, the item referred to a case last year in which a group of people had been jailed for their part in a fraud scheme.

While it said it accepted T felt remorse for his conduct, and may have wished to put the matter behind him, it submitted that the case was public information and maintained that it did not constitute a breach of privacy.

Applying the privacy principles, TVNZ concluded that principle (i) was not relevant because no private facts were disclosed. Turning to principle (ii), which provides protection against disclosure of public facts which have become private again with the passage of time, TVNZ noted that T’s conviction occurred only last year, and that others involved in the scheme were still serving their sentences. In such circumstances, it did not consider that the conviction was a fact which had become private again through the passage of time.

TVNZ did not consider that principle (iii) was relevant. The broadcast did not involve "intentional interference with an individual’s interest in solitude or seclusion". It simply, TVNZ argued, reported a public fact which was a matter of public interest.

TVNZ argued that principle (iv) was also not relevant.

Principle (v), it argued, was relevant but the exemption applied as the details were public information and the matter was subject to the public interest defence.

Turning to principle (vi), it argued it that the reference to the earlier case was very much in the public interest in an item which sought to enlist public support in apprehending a person involved in a similar fraud scheme.

In summary, TVNZ concluded that there were no grounds for upholding the complaint. It said it believed principles (ii), (v) and (vi) referred most directly to T’s case, but submitted that a complaint could not be sustained in relation to any of them because the facts broadcast were public information, and in the public interest.

T’s Final Comment – 26 August 1998

T pointed out to TVNZ that at the time the programme was broadcast, no one was serving time in prison. He suggested it would have been nice if the facts had been looked into before that statement was made.

He said that he disagreed with TVNZ’s response. He considered that he had served his time to society and could not see what his case had to do with the case being investigated where a man took on the identity of dead children to make fraudulent claims.

T emphasised that it was his understanding that the Crimescene programme was intended for people who were currently being sought.