BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

3 News reported on three men who were convicted or accused of sexual offence charges, and showed images of two lists of names, in which the complainants' names featured. The Authority declined to uphold complaints that by showing their names during a discussion about the accused sex offenders, the item breached the complainants' privacy. Their position as Parliamentary Service employees was not private, the inclusion of the complainants' names was peripheral to the item, and there was no suggestion that the complainants were the accused sex offenders, as the three men who were convicted or accused of sexual offence charges were explicitly identified by both their names and their images.

Not Upheld: Privacy, Fairness

Introduction

[1]  An item on 3 News was introduced by the presenter as follows:

As Northland faces its latest high-profile sex case, 3 News can reveal the alleged offender had been working for Hone Harawira, paid for by the taxpayer. Leaked parliamentary documents show he's one of three men who worked for Harawira who have either been convicted or accused of sexual offence charges.

[2]  The item contained brief footage of the 'leaked' records which consisted of two lists of names of various Parliamentary Service employees. The footage included the names of the three men convicted or accused of the sexual offending, as well as the names of the three complainants, Andrew Boreham, Agnes Howe and Dear Kingi, who are all former employees.

[3]  The complainants argued that the broadcast of their names and employment details breached their privacy. Mr Boreham considered that the 'ambiguity of the story could lead the average viewer to assume I am one of the three employees... accused of or charged with sex crimes', which brought his reputation into disrepute and was unfair.

[4]  The news item was broadcast on TV3 on 23 October 2014. The members of the Authority have viewed a recording of the broadcast and have read the correspondence listed in the Appendix.

Was the privacy standard breached?

[5]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[6]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The complainants were identifiable as their names appeared on the two lists of Parliamentary Service employees shown in the item.

Did the broadcast disclose any private facts about the complainants?

[7]  Privacy principle 1 of the Authority's privacy principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual's privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective, reasonable person.

[8]  MediaWorks maintained that naming a person as an employee of a political party did not amount to a private fact, and that no other information contained in the lists shown was private.

[9]  We agree that the information disclosed in the item – that the complainants were Parliamentary Service employees – did not amount to private facts. The Authority has previously found that a person's profession or employment with a specific organisation is not information which a person could reasonably expect to remain private.¹ Unless a person has taken active steps to keep their employment private,² generally one's role in the workplace does not attract the protection of the privacy standard. Nor do we consider that partial footage of the complainants' employee phone numbers, starting dates, or cost centre codes amounted to information that was private in nature.

Were the complainants' names disclosed in a manner that encouraged harassment?

[10]  Ms Kingi also referred to privacy principle 4, which protects against the disclosure, without consent, of the name of an identifiable individual, in circumstances where the disclosure would be highly offensive to an objective reasonable person. She said it was 'in extremely poor taste' to list her name alongside the names of other former Parliamentary Service staff members and said the news item had caused her embarrassment.

[11]  Privacy principle 4 was developed by this Authority to prevent the broadcast of a person's details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public,³ or in special, limited circumstances, where the careless release of information results in harassment.⁴

[12]  Here, the disclosure of the complainants' names was inadvertent and clearly not for the purpose of encouraging harassment. This was an incidental disclosure of information that was irrelevant to the story's focus, as opposed to a careless disclosure that was likely to cause harassment of those specified on the list. There has been no suggestion from the complainants that they have suffered harassment as a result of the broadcast.

Highly offensive disclosure

[13]  Even if we had concluded that the broadcast revealed private facts about the complainants, we are satisfied that the disclosure would not be highly offensive to an objective reasonable person.

[14]  The harm alleged to have been caused by the item was the association of the complainants' names with a story about sex offence charges, and embarrassment. The 'highly offensive' test requires something more than mere embarrassment. There was no suggestion at all that the complainants were accused or convicted of sexual offending. The three men who were the subject of the story were explicitly identified both by their names and by their images. The lists of names were used because they were the source documents which revealed that the men were employed by the Parliamentary Service and so paid by the taxpayer. The inclusion of the complainants' names on those lists was incidental.

[15]  For these reasons, we decline to uphold the privacy complaints.

Was Mr Boreham treated unfairly?

[16]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁵

[17]  Mr Boreham reiterated his argument that broadcasting his name and details in connection with a story on three men charged with or accused of sex offences potentially implicated him in the eyes of the audience, which was unfair.

[18]  MediaWorks argued that the complainants' details 'appeared in a context that was very clearly focused on three specifically named employees that were each discussed in detail regarding their respective charges or offences'. It said the story in no way implicated Mr Boreham in any of the allegations discussed and it did not consider that reasonable viewers would have understood he was involved.

[19]  We reiterate our findings above that there was no confusion as to the identity of the three men accused and/or convicted of the sex offences. As Mr Boreham was not implicated in the sexual offending, he was not treated unfairly. We decline to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
5 February 2015

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

Andrew Boreham's complaint
1      Andrew Boreham's formal complaint – 28 October 2014
2      MediaWorks' response to the complaint – 21 November 2014
3      Mr Boreham's referral to the Authority – 21 November 2014
4      MediaWorks' response to the Authority – 27 November 2014
5      Mr Boreham's final comment – 28 November 2014
6      MediaWorks' confirmation of no final comment – 8 December 2014

Agnes Howe's complaint
7      Agnes Howe's direct privacy complaint – 24 October 2014
8      MediaWorks' response to the complaint – 21 November 2014
9      Ms Howe's final comment – 22 November 2014
10    MediaWorks' final comment – 27 November 2014

Dear Kingi's complaint
11    Dear Kingi's direct privacy complaint – 28 October 2014
12    MediaWorks' response to the complaint – 21 November 2014

¹ See Robertson and Television New Zealand Ltd, Decision No. 2011-162 and Scott and MediaWorks TV Ltd, Decision No 2014-028

² For example, TD and MediaWorks TV Ltd, Decision No. 2014-048

³ E.g. Spring and The Radio Network, Decision No. 2007-108

⁴ NJ and Apna Networks Ltd, Decision No. 2010-066

⁵ Commerce Commission and TVWorks Ltd, Decision No. 2008-014