BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint that an episode of Sunday about voluntary ‘DIY’ sperm donation in New Zealand, and in particular the complainant’s history of frequent sperm donations, breached broadcasting standards relating to privacy, fairness and accuracy. The Authority found there was a high level of public interest in discussing the risks associated with using DIY sperm donors, as well as CA’s extensive donation history in particular, which outweighed the potential harm to CA. The Authority concluded the programme did not disclose any private information about CA, and overall CA was treated fairly and was given a fair and reasonable opportunity to comment in response to allegations made about him in the programme. Doorstepping CA (approaching him on the street with cameras rolling) was not unfair in the circumstances, and he willingly engaged in a lengthy interview with the reporter. Finally, the Authority did not consider the programme contained any inaccurate statements of fact or would have misled viewers.

Not Upheld: Privacy, Fairness, Accuracy, Good Taste and Decency, Programme Information

Introduction

[1]  The Sunday programme of 5 May 2019 investigated the complainant’s (CA’s) history of frequent sperm donation and dealings with multiple women who had received sperm from him. The item also discussed the legal landscape of voluntary ‘DIY’ (do it yourself) sperm donation in New Zealand and the potential issues that can arise given the absence of any oversight or regulation (as takes place in donation/fertility clinics).

[2]  The programme featured interviews with several families who had received sperm donations from CA, one of CA’s biological children, and Professor Colin Gavaghan, the Deputy Chair of the Advisory Committee on Assisted Reproductive Technology (ACART). The interviewees expressed concerns about the number of children CA had fathered (alleged to be more than 20) and noted that some of his children (including the biological child interviewed) had some health concerns, but CA had not disclosed this to potential donation recipients. The programme also featured footage of Sunday’s reporter, Matt Chisholm, doorstepping CA on a public footpath and excerpts of his resulting conversation with CA.

[3]  The essence of CA’s complaint is that this broadcast breached his privacy and his children’s privacy, that he was treated unfairly by the broadcaster, and that the programme was inaccurate and misleading.

[4]  In considering this complaint, we have viewed a recording of the broadcast complained about and we have read the correspondence listed in the Appendix.

[5]  Taking into account the nature of the complaint, the impact of the programme on the complainant as described by CA in his submissions, and the potential impact on any women and children associated with him, we have granted name suppression to the complainant in this case.

The complaint

[6]  CA submitted that the broadcast breached the privacy, fairness, accuracy, good taste and decency, and programme information standards of the Free-to-Air Television Code of Broadcasting Practice. We have focussed our determination on the privacy, fairness and accuracy standards as we see these as being the most applicable to the complainant’s concerns. His complaint submissions to the Authority on each of these standards are summarised below. We have briefly addressed the remaining standards at paragraphs [53] – [54].

Privacy

• It was not in the public interest to identify CA as a donor. ‘By being a donor, I have broken no laws and I am not passing on medical conditions.’
• The three mothers in the broadcast signed contracts stating they would not identify CA as their donor.
• Three other mothers wrote to the Privacy Commission to try and stop the Sunday story as they feared their children would be identified as CA’s.
• Identifying CA was likely to result in CA’s children being identified, in breach of their privacy.
• ‘Having me on Sunday has upset many as now their family and friends know me as a serial donor.’
• The Facebook photos of CA used in the broadcast were not intended for the public; he had ‘locked down’ his privacy settings in 2017 so they could not have been taken by the broadcaster from his Facebook page (as submitted by the broadcaster).

Fairness

• CA disagreed with the broadcaster’s submission that the story was focused on the legal status of sperm donation; CA and his donations were the focus and no other donor was mentioned.
• The story did not make it clear that CA’s actions were not illegal.
• One donation recipient had contacted Sunday to give her views in support of CA and tell them ‘the good side’, but ‘they weren’t interested and she hung up on them’.
• CA was ‘ambushed in the street’ even though he had emailed TVNZ the week before offering to meet on the condition he would not be identified in the programme. CA said his initial response to the reporter was ‘no comment’ as the reporter and two cameras followed him, but ‘by then a small crowd had formed and block[ed] the path so I fired back at the false claims.’
• TVNZ was told the information Sunday had was wrong and there was nothing to be gained by showing CA on television.
• The resulting programme had been very stressful and had a huge detrimental impact on him, his family and his relationships.

Accuracy

• The broadcast was not accurate in relation to material points of fact regarding the health issues of the children. ‘The issues are only for the children to those mothers filmed; all other children have no issues. No mother has done any testing to disprove claims and admit to health issues on the show – I have done [four] DNA tests that clear my name.’
• CA sent TVNZ a cardiologist report to ‘clear [his] name’ (regarding claims that some of the children CA has fathered have heart murmurs).
• The story inaccurately stated that CA has fathered 29 children; CA told TVNZ he had fathered 19 children.
• There is no ‘gap in the law’, as stated by the professor interviewed. Worldwide more children are born via private donation than through clinics and no country has any law referring to private donors.

[7]  The complainant also mentioned in his submissions that a complaint has been made to the Privacy Commissioner about the broadcast, and legal proceedings between him and some of the mothers involved. These matters are outside the Authority’s jurisdiction, which is limited to considering the Sunday item broadcast on 5 May 2019.

The broadcaster’s response

[8]  TVNZ submitted the broadcast did not breach the broadcasting standards raised for the following reasons:

Privacy

• The children were not identified by the inclusion of footage of CA in the broadcast. The children themselves were not included in the programme aside from CA’s biological child from a long-term relationship, who consented to take part in the broadcast and was not identified by face or by name.
• The photos of CA used were all taken from CA’s public Facebook profile, accessible to anyone. Therefore they are not private information.
• TVNZ was ‘not convinced’ that the claim that CA is NZ’s ‘biggest sperm donor, fathering 20-plus children’, is a private fact, considering a previous media story about him (although his full name was not disclosed in that item), a comment to this effect made by CA on another online news article, and that ‘family and close friends could reasonably be expected to know that [CA is] a prolific sperm donator.’
• Even if it was a private fact, it was in the public interest to disclose due to the ‘genuine ethical and societal concerns’ regarding CA’s donations and the fact that CA was ‘continuing to tell women communicating with him for possible sperm donation that he had only fathered a few children to a couple of families when evidence proved that his donations were far more extensive than this.’

Accuracy

• Sunday is confident that the story featuring CA was based on fact and was a legitimate story in the public interest.
• All claims made by the mothers interviewed were fact-checked. Relevant evidence was ‘collected or cited’. TVNZ is confident that all claims made by the mothers are true and accurate to the best of their understanding.
• The broadcast included a graphic representation of the cardiologist letter referred to by the complainant, as well as the following line in the programme, which quoted directly from the cardiologist report: ‘Since we began filming this story, he’s provided a cardiologist report stating he has a healthy heart, but there is “no genetic testing that [CA] could undergo to prove” he did or didn’t pass on a heart murmur.’
• During the investigation, TVNZ discovered that numerous children fathered by CA through sperm donation, as well as his eldest children through a former relationship, had various health issues. TVNZ also discovered that CA failed to disclose these issues to recipients or on his public donor profile.
• Genetic transmission is not ‘clear cut’ and therefore TVNZ made a careful effort to state that CA was not necessarily the cause of the reported health issues. The story included a quote from one of his donation recipients to that effect: ‘I’m not saying that it came from [CA’s] side, I have a sister who’s also got a heart condition. But if he’s gonna have possibly a carrier of a heart condition that may have made me think actually maybe I should try a different donor.’
• Sunday advised that in a conversation with the reporter and producer, [CA] stated he had 19 children through sperm donation. ‘With the addition of his two children through a former relationship, TVNZ considers the number 21 to be accurate. [CA] is also on the record as having told [another media outlet] that he had fathered 20-plus children.’

Fairness

• The premise of the story was the fact that there are few laws that govern DIY sperm donation in New Zealand. The story made it clear that CA was not breaking any laws, but questioned whether there was a gap in the law which allowed him to continue donating sperm.
• CA was given an opportunity to respond to the allegations made against him and his comments were broadcast.
• The fairness standard allows ‘doorstepping’ when all legitimate and reasonable methods of obtaining comment have been exhausted. After CA declined multiple requests for an on-camera interview, the broadcaster determined there was a strong public interest in approaching the complainant in a public place to see what he had to say. When CA was approached on the footpath, he engaged willingly in a 40-minute interview where he answered questions freely and without duress. He had every opportunity to walk away or to stop answering any questions but he did not. He was given an opportunity to respond to claims made by those unhappy with his behaviour and a chance to share his motivations and views on sperm donation.

The relevant standards

[9]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual.

[10]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.¹

[11]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.²

Our findings

Freedom of expression and public interest

[12]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[13]  The harm alleged on this occasion is to the dignity and reputation of CA as a result of inaccurate statements being broadcast, unfair treatment by TVNZ and the disclosure of private information about him.

[14]  An important consideration when we weigh this alleged harm against the right to freedom of expression, is the level of public interest in the broadcast. In our view, this Sunday broadcast carried a significant level of public interest by raising legitimate concerns about both the risks associated with DIY sperm donation in New Zealand as well as CA’s donations in particular, including the frequency of his donations and alleged health concerns which may (or may not) have been passed on by CA. We consider there was high public interest in broadcasting the following information to viewers, and in particular to prospective sperm donation recipients:

• Professor Gavaghan, Deputy Chair of ACART expressed serious concern regarding CA’s behaviour (of multiple donations and alleged potential health risks), calling it ‘morally wrong’ and stating ‘his conduct falls into a gap in the law’ that needs to be ‘fixed’.
• DIY sperm donation (voluntary donation outside of regulated clinics) is not regulated in New Zealand.
• Concerns were raised around limiting the number of children any one donor may father (which is regulated through fertility clinics), as well as related concerns about possible incest in the future between the resulting children.
• Interviews with the children’s mothers and CA’s biological child raised concerns around some children’s alleged health issues, and that CA had not disclosed these to other possible donation recipients.
• It was in the public interest to disclose CA’s identity to raise awareness, particularly among possible donation recipients, of some of the issues arising from CA’s numerous donations, given his donation history and donation inclination.

[15]  We concluded that the potential harm to CA alleged in the complaint did not outweigh the value of the story and the high public interest in raising awareness of a legitimate issue. Therefore any restriction on the right to freedom of expression on this occasion would be unjustified.

[16]  We have outlined our findings in relation to each of the nominated broadcasting standards below.

Privacy

[17]  In deciding whether a breach of privacy has occurred, we consider three criteria:

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable
• whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy
• whether the disclosure could be considered highly offensive to an objective reasonable person.³

Were CA and the children he has fathered identifiable?

[18]  CA was named and shown in the broadcast so he was clearly identifiable.

[19]  We do not consider the children of the families involved in the broadcast or any of the other children CA has fathered would have been identifiable as a result of the broadcast’s naming or footage of CA. The mothers featured were anonymised so their children could not be identified by association. None of the other children fathered by CA were featured. In any case, as we explain below, we consider the public interest in identifying CA outweighed any privacy interests.

Did the broadcast disclose private information or material about CA?

[20]  The next step is to determine whether the broadcast disclosed any private information about CA.⁴ To constitute ‘private information’, there must be a reasonable expectation of privacy in relation to the information or material.⁵

[21]  We consider that, usually, whether somebody is a sperm donor is information over which they would have a reasonable expectation of privacy. However, in determining whether, in this case, CA had a reasonable expectation of privacy in relation to the fact he has donated sperm to numerous families, and continues to offer his sperm for donation, we had regard to the following factors:

• CA had previously featured in a media story, and commented on another online news article, claiming he was New Zealand’s most prolific sperm donor. While his full name was not disclosed, in both cases CA used a pseudonym which included his first name.
• TVNZ submitted that CA’s family and close friends could reasonably be expected to know that he is a prolific sperm donor, citing his eldest biological child’s (who was interviewed) knowledge of the above-referenced media story featuring CA, and their desire for CA to stop donating sperm.
• The programme showed that some of the mothers in the Sunday item also identified CA from that same media story and used it to make contact with other donation recipients.
• The number of families who have received sperm from CA.
• CA submitted that he had entered into contracts with the women who received his sperm, agreeing not to identify him as the father. However in his submissions he also referred to some of the families posting photos of him with the children he has fathered on social media, and referred to children ‘who know me as their father’.
• CA’s position as shown in the doorstepping interview, that he continues to offer his donation services through social media and other online platforms, and in a sense acts as an ‘ad’ for DIY sperm donation.

[22]  In these circumstances, we reached the view that CA’s sperm donation history and intention to continue making donations was not information that he could reasonably expect to remain private.

[23]  We also found that the Facebook images of the complainant used in the broadcast were not private information. While the parties dispute where and how the photos were sourced, the photos did not reveal anything more than the complainant’s image. We note CA’s image was also disclosed in the doorstepping footage (discussed at paragraph [29] below), obtained when he allegedly spoke with the reporter at length, aware he was being filmed. We do not consider the Facebook photos revealed anything additional or anything private.

Public interest

[24]  Having found that no private information was disclosed about CA, we do not need to make any finding on the third criteria for a breach of privacy (whether the disclosure was highly offensive), and we find that no breach of privacy occurred in this case.

[25]  Nevertheless we record our view that, even if we had found that CA’s privacy was breached, the defence of public interest would apply to this broadcast.⁶

[26]  As we have outlined in paragraph [14] above, we consider this broadcast carried a significant level of public interest. It explored concerns about the lack of regulation and risks associated with DIY sperm donation in New Zealand, as well as concerns about CA’s conduct in particular. The public interest was also strengthened by the interview with CA’s biological child, who expressed their own concerns about the number of CA’s sperm donations and his intention to continue donating sperm, particularly in light of their own health issues, which CA did not disclose to potential recipients.

[27]  These were all legitimate issues to raise in the public interest, and while we acknowledge CA’s wish to protect his children’s privacy interests as well as his own, we consider that, in a small country like New Zealand, there was a greater interest in disclosing CA’s identity and concerns about his donations and risks to women and children.

[28]  For these reasons we do not uphold the privacy complaint.

Fairness

[29]  CA’s main concerns under the fairness standard are that he was not given a fair and reasonable opportunity to respond, that he was ‘ambushed’ by the reporter with cameras rolling (doorstepped), and that the item was misleading which resulted in unfairness to him.

[30]  A key principle of the fairness standard is that, where a person referred to or portrayed in a broadcast might be adversely affected, that person should usually be given a fair and reasonable opportunity to comment for the programme, prior to the broadcast.⁷ What is ‘fair and reasonable’ will depend on the circumstances.⁸

[31]  The fairness guidelines also state that doorstepping an individual or organisation as a means of obtaining comment will normally be unfair, unless all legitimate and reasonable methods of obtaining comment have been exhausted.⁹ Doorstepping refers to the filming or recording of an interview or attempted interview with someone, without any prior warning.¹⁰

[32]  Considering the nature of the broadcast, we think it was clear that CA was likely to be adversely affected by it and so he should have been given a fair and reasonable opportunity to comment in response.

[33]  It is evident from the broadcaster’s submissions and documentation provided to us that the Sunday team was in contact with CA between 10 and 12 April 2019, several weeks before the 5 May 2019 broadcast, and that CA was invited a number of times to give his side of the story and participate in an on-camera interview for the programme. The broadcaster provided:

• comprehensive notes from an off-camera meeting between the reporter, the Sunday producer and CA on 10 April 2019
• numerous text messages between the reporter and CA on 10 April 2019 following their off-camera meeting, in which they continued to negotiate a possible interview
• an email exchange between the reporter and CA on 12 April 2019, in which the reporter again clearly set out the nature of the story and the allegations made about CA. The reporter ‘re-extended’ the request to CA to participate in an on-camera interview, and gave him four days, until 16 April 2019, to respond. CA responded to that email at length outlining his position on the issues to be raised in the programme.

[34]  Leaving aside the issue of whether doorstepping CA was unfair (addressed below), we consider that CA was given a reasonable opportunity to comment and that his responses were fairly presented in the broadcast. CA was clearly fully aware of the nature of the story and the allegations, through correspondence with the reporter, and given a number of opportunities to respond. Significant sections of CA’s comments were broadcast as well as a section of the cardiology report CA supplied to the broadcaster. These responded to the key claims about CA and his donation activities that were presented in the broadcast. Additionally, Professor Gavaghan explicitly stated in the broadcast that CA’s actions are not illegal, as did CA himself. So we do not consider viewers would have been misled in the manner alleged in the complaint or that these aspects of the broadcast resulted in any unfairness.

[35]  On the issue of the reporter’s doorstepping of CA, the members of the Authority agreed this also did not result in any unfairness to CA, taking into account:

• the broadcaster’s efforts to engage with CA and get his perspective (outlined above)
• the parties were unable to agree on the terms for CA’s interview
• the public interest in CA being identified in this broadcast
• upon being doorstepped, CA evidently willingly engaged with the reporter at length (the broadcaster advises they spoke for up to 40 minutes). CA said he tried to get away from the reporter, but was blocked by a crowd. However the excerpts of the interview used in the broadcast showed CA talking freely and responding to the reporter’s questions, and even joking with the reporter by the time the conversation concluded. There did not appear in the footage to be any crowds preventing CA from walking away from the conversation.

[36]  In these circumstances, we do not uphold the complaint under the fairness standard.

Accuracy

[37]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.¹¹ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.¹² Programmes may be misleading by omission.¹³

[38]  The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.¹⁴

[39]  In addition, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁵

[40]  The complainant identified that a number of points addressed in the programme breached the accuracy standard (see his submissions above in paragraph [6]). Each is considered separately below in light of the above principles.

Statements about the health of several children fathered by CA

[41]  CA complained about several statements referring to various children’s ‘health issues’, including one child who wears glasses and another who has a hearing issue. He submitted these are common issues among children and there was no evidence these issues had come from him.

[42]  The concerns about the children’s health were presented from the perspective of the children’s mothers, as well as CA’s biological child who was interviewed. No statement of fact was made that these issues had been directly passed on by CA. Rather, the purpose of these statements in the broadcast was to show several children fathered by CA had health issues which had not been disclosed to other prospective donation recipients. This was a legitimate concern to raise in the public interest.

[43]  Additionally, CA’s point of view on his and the children’s health was fairly presented during the broadcast through clips of the conversation between CA and the reporter. One of the mothers interviewed also clearly stated she was ‘not saying that it [the health issue] came from [CA’s] side’.

[44]  For these reasons we do not consider the broadcast as a whole would have misled viewers into believing the health issues of these children were the result of CA and his medical status.

CA’s heart health

[45]  Related to the above point, this part of the complaint relates to claims in the broadcast that some children fathered by CA have a heart murmur (and that this should be disclosed on CA’s donor profile).

[46]  CA said he provided a cardiologist report to TVNZ to ‘clear [his] name’ and to demonstrate that he could not have passed on a heart murmur because he had never had a heart murmur himself.

[47]  The broadcast clearly displayed a section of the cardiologist report as well as a voiceover that stated ‘[s]ince we began filming this story, he’s provided a cardiologist’s report stating he has a healthy heart, but there is “no genetic testing that [CA] could undergo to prove” he did or didn’t pass on a heart murmur.’

[48]  We therefore do not consider the programme was misleading or inaccurate or that it was necessary to broadcast more of the cardiologist’s report as per the complainant’s submissions.

The number of children fathered by CA

[49]  CA complained that the broadcast inaccurately stated he had fathered 29 children. This figure was raised by one of the mothers in the broadcast and was clearly presented as being her opinion based on her own research of CA’s donations, so the accuracy standard does not apply to that comment.

[50]  The exact number of children fathered by CA is disputed by the parties. CA says he told TVNZ the correct number is 19. The broadcast stated that CA has 21 children, which TVNZ says was calculated by adding CA’s two biological children to the 19 children he has fathered via sperm donations. We do not consider the difference between 19 children and 21 children to be material to the broadcast, given both numbers are significant and above clinic limits for donating sperm. Therefore the accuracy standard was not breached in relation to this point.

CA’s behaviour falls into a ‘gap in the law’

[51]  This statement in the broadcast was clearly a statement of analysis by Professor Gavaghan, regarding the legal landscape surrounding sperm donation and CA’s donations in particular. It was not a statement of fact to which the standard applies.

Remaining standards

[52]  Under the good taste and decency standard (Standard 1) CA submitted, ‘it wasn’t in good taste to publicly show my private life on national TV. While the programme showed at 7.30pm there were ads promoting the programme during times that children who know me as their father were watching.’ The good taste and decency standard is concerned with programme material that unduly offends or distresses the general programme audience, rather than impacting particular individuals. This broadcast did not contain any content that was likely to offend viewers in general, so we find no breach of Standard 1.

[53]  CA also raised the programme information standard (Standard 2) in relation to ‘information in the programme not the rating’. As noted by the broadcaster in its submissions, this standard requires broadcasters to appropriately classify and schedule programmes. As Sunday is an unclassified news and current affairs programme, this standard does not apply to the complaint.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

29 October 2019

Appendix

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

1                 CA’s original complaint – 28 May 2019

2                 TVNZ’s response to the complaint – 26 June 2019

3                 CA’s referral to the Authority– 27 June 2019

4                 CA’s further comments and information – 21 & 23 July 2019

5                 TVNZ’s response to the referral and CA’s further comments – 16 August 2019

6                 CA’s comments – 28 August 2019

7                 TVNZ’s final comments – 13 September 2019

8                 Further information from TVNZ including reporter’s correspondence with CA – 19 September 2019

9                 CA’s final comments – 30 September 2019

¹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Guidelines 10a and 10b
⁴ Guideline 10b
⁵ Guideline 10c
⁶ Guideline 10f
⁷ Guideline 11d
⁸ Guideline 11d
⁹ Guideline 11e
¹⁰ Definitions, Broadcasting Standards in New Zealand Codebook, page 9
¹¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹² Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
¹³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁴ Guideline 9b
¹⁵ Guideline 9a