BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under s.8(1)(a) and s.8(1)(c) of the Broadcasting Act 1989
Sunday – item on alleged police pack rape of Louise Nicholas – footage shown of former police house where rapes allegedly occurred – current house owner alleged item breached privacy and was unfair

Findings
Standard 3 (privacy) – no identification of current owner of house – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item on Sunday reported on allegations of possible improper behaviour by the police, and a cover up in relation to accusations of rape by Louise Nicholas against three policemen. It was broadcast on TV One on 21 March at 7.30pm.

[2] The item included shots of the former police house where the rapes were alleged to have occurred. A car was shown in the driveway of the house.

Complaints

[3] The current owner of the house complained to the Broadcasting Standards Authority that the broadcast breached her privacy.

[4] The mother of the current owner complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached her daughter’s privacy.

Standards

[5] The complaints were assessed under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline

3a  Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

The privacy principles referred to in the guideline 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.

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.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

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.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Broadcaster's Responses

[6] TVNZ did not uphold CD’s complaint and recommended that the Authority decline to uphold AB’s complaint. However, it apologised to the complainants for the distress caused by the item.

[7] TVNZ wrote:

• The house scenes were directly relevant to the story because, it was reported, this was the house to which Ms Nicholas said she was taken and claims she was subsequently raped:

  It is, the committee noted, a fundamental part of all journalism training (and has been for many years) that any story should contain the principle elements – “who”, “what”, “where”, “when”, “why” and “how”. The shots of the house were the “where” of this story and seemed properly used in the overall narrative.

• The current owner was not identified by the broadcast, or linked in any way with the alleged rapes.
• The house was filmed from a public place.
• No individual was filmed and the house was filmed as it would be seen by any passer by.
• The privacy principles say this about journalists breaching privacy in a public place in principle (iii):

  …The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

• The pictures of the house illustrated a story that had emerged which was of legitimate public interest and concern.

[8] As to the presence of the car in the driveway, TVNZ said that the shot panned so quickly that the number plate was visible only by using a freeze frame facility.

CD’s Further Correspondence

[9] In her referral to the Authority and in her final comment to the Authority, CD reiterated her concerns that the item breached her daughter’s privacy. In response to TVNZ’s decision, she asked:

• Why had TVNZ shown her daughter’s property, but not others where Ms Nicholas said she had been raped?
• Why did TVNZ return to her daughter’s house and get new footage (including the car) when they already had file footage of the house?

AB’s Final Comment

[10] In her final comment, AB said she considered that TVNZ had breached her privacy by allowing the number plate of her car to be visible in the item. She also commented that her house had been filmed with a zoom lens, so a passer by “certainly would not have been able to view [it] in the way it was illustrated by TVNZ”. She also asked why another house where Ms Nicholas said she had been raped had not been shown.

Authority's Determination

[11] The members of the Authority have viewed a tape of the item complained about and have read the correspondence listed in the Appendices. The Authority determines these complaints without a formal hearing.

[12] These complaints are substantially similar to complaints by AB about an earlier broadcast. In Decision Nos. 2004-049/050, dated 6 May 2004, the Authority considered whether the broadcast of shots of AB’s house to illustrate a One News item breached AB’s privacy. It concluded that they did not, as AB was not identified by the item. It said:

The Broadcasting Act protects the privacy of the individual. Accordingly, an individual must be identified by a broadcast, before an item can be said to have breached the privacy standard. The current owners were not, in the Authority’s view, identified by the item complained about. Information about the precise locality of the house was restricted. The house number and street name were not identified. Even if the house was identifiable to residents in Rotorua, the item did not mention or identify the complainant, or refer to her in any way.

[13] On this occasion, the Authority also concludes that AB was not identified. It does not consider that the fleeting shot of the number plate of the car in the driveway of the house would have identified AB, as it agrees with TVNZ that it would not have been possible for viewers to read the number plate, and the shot itself was brief.

[14] The Authority expresses considerable sympathy for the complainants’ position, and understands their distress about the broadcast of the pictures of the house in connection with the rape allegations. However, it does not consider that there is any basis upon which it can uphold these complaints.

[15] The Authority finds that Standard 3 (privacy) was not breached.

For the above reasons the Authority does not uphold the complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
15 July 2004

Appendix 1

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

1.     AB’s Complaint to the Broadcasting Standards Authority – 22 March 2004
2.    TVNZ’s Response to the Authority – 14 April 2004
3.    AB’s Final Comment – 28 April 2004

Appendix 2

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

1.     E-mail correspondence between the parties – 23 and 24 March 2004
2.    TVNZ’s Response to the Formal Complaint – 14 April 2004
3.    CD’s Referral to the Broadcasting Standards Authority – 29 April 2004
4.    TVNZ’s Response to the Authority – 7 May 2004
5.    CD’s Final Comment – 12 May 2004