Cox and Television New Zealand Ltd - 2010-161
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Tui Cox
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1A) of the Broadcasting Act 1989
One News – item on education programme established to prevent youth suicide and self harm – included footage of students – allegedly in breach of privacy
Standard 3 (privacy) – students, teachers and parents identifiable but no private facts disclosed in broadcast and filming was in a public place – those shown not particularly vulnerable – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on Friday 26 November at 6.25pm, reported on the establishment of an education programme in a South Auckland community aimed at preventing youth suicide and self-harm. The news reader introduced the item by stating that “Kaumatua gathered to bless a South Auckland school after a number of teen deaths in the area. One is related to a circulating text message promoting self-harm”. Footage of students in school uniform entering a marae was shown as the reporter stated, “A blessing, a cleansing, a karakia. A chance to lift spirits after the death of one of their own”. Two of the students raised their hands in front of their faces as they walked past the camera in order to avoid being filmed.
 The reporter interviewed a local Kaumatua, who said, “We hope to achieve some relief for the students because they are having a difficult time”. The reporter stated, “just how difficult illustrated last week when our cameras captured the aftermath of another school student trying to harm herself”, as the item cut to blurred footage of a student being taken away by police as a crowd gathered outside school grounds.
 Later in the item, footage of a sign identifying a school was shown, as the reporter stated, “It’s not just this school, half a dozen others in South Auckland are also affected”.
Referral to the Authority
 Tui Cox lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989. The complainant argued that filming on school property and broadcasting footage of “identifiable” and “vulnerable” students without their consent breached privacy principles. She considered that the broadcast of “grieving pupils, teachers and parents” was “damaging and invasive” and argued that the “minimal sensitivity” shown by blurring the footage of the suicidal pupil was “undone by then blatantly displaying the school name”.
 TVNZ assessed the complaint under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1, 3 and 8 of the Authority’s Privacy Principles. The complainant also nominated privacy principles 6 and 7 in her complaint. These provide:
Standard 3 Privacy
Broadcasters should maintain standards consistent with the privacy of the individual.
1. 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.
3. (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.
(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).
(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.
6. Children’s vulnerability must be a prime concern to broadcasters, even when informed consent has been obtained. Where a broadcast breaches a child’s privacy, broadcasters shall satisfy themselves that the broadcast is in the child’s best interests, regardless of whether consent has been obtained.
7. For the purpose of these Principles only, a ‘child’ is defined as someone under the age of 16 years. An individual aged 16 years or over can consent to broadcasts that would otherwise breach their privacy.
8. Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.
Broadcaster's Response to the Authority
 TVNZ noted that the item featured footage of students entering a karakia for a South Auckland school where a student had died, and in the background of an interview with a Kaumatua outside school grounds. It also noted that blurred footage of students outside a school was shown in relation to an earlier incident of a student attempting self-harm.
 The broadcaster contended that the aim of Standard 3 was to protect the privacy of the individual. It stated that, in considering the complaint, it first had to determine whether the person whose privacy was allegedly interfered with was identifiable in the broadcast. With regard to the blurred footage, it argued that sufficient care had been taken to protect the student’s identity. It said that this footage was important to the overall item as it provided background information for viewers about the need for the education programme. Turning to the other students, shown entering the marae and outside school grounds, TVNZ argued that they were not sufficiently identifiable because the footage was “brief” and the students were not named.
 Despite its finding that the students were not identifiable, for the sake of completeness, TVNZ considered the other elements necessary to establish a breach of privacy.
 Turning to privacy principle 1, the broadcaster argued that no private facts were disclosed about the students. In terms of privacy principle 3, TVNZ considered whether the item demonstrated an intentional interference with the students’ solitude or seclusion. It noted that the footage was obtained in a public place, but acknowledged that in “extreme circumstances” a person could still have an interest in seclusion in such circumstances. The broadcaster stated that the school had given One News permission to film the karakia and had informed parents that it would be filming the ceremony. TVNZ said that filming was from a “respectable distance in acknowledgment of the need for sensitivity”. It did not consider that privacy principle 3 had been breached.
 The broadcaster considered that the primary issues were whether the broadcast of the footage would have been highly offensive to a reasonable person, and whether the broadcast was justified because it was a matter of legitimate concern or interest to the public. TVNZ stated that there was no “deliberate or malicious attempt by One News to identify any specific students. To some extent the students were incidental in much of [the] footage”, it said, for example where they could be seen in the background of interviews being conducted by the reporter. The broadcaster considered that it was important to include footage of the students because they were the “main group affected by the ‘problem’”. It did not agree that footage of the students would be highly offensive to a reasonable person in that context.
 TVNZ argued that there was a “legitimate public service element” to the item and that the issues canvassed were of “legitimate concern to the public”. The broadcaster stated that police, social agencies and other interested parties wanted One News to report on the text message circulating amongst youths encouraging them to self-harm because it was a growing problem in the community. The story sought to raise awareness about the dangers of the circulating text, it said.
 For these reasons, the broadcaster declined to uphold the complaint.
Complainant’s Final Comment
 Ms Cox argued that the footage subject to complaint was filmed from inside school grounds “looking towards the entrance, from a distance that was not always respectful”. It was filmed on an entirely different day to the karakia, and showed grieving students, families, staff and friends of the school entering the school’s main gates for a blessing, she said. The complainant stated, “I understand this gathering of the school community had to move around the cameraperson who was asked by the principal to leave the school grounds”. The complainant argued that the “intrusion of the cameraperson on school grounds and the resultant broadcast footage” breached Standard 3.
 With regard to the blurred footage of a previous incident at the school, Ms Cox questioned whether the broadcaster was required to consider the potential impact of the “unnecessary exposure” on the vulnerable youth involved.
 The complainant stated that the school identified in the footage was an intermediate school with most students aged between 12 and 14. She argued that privacy principle 6 was therefore relevant.
 Ms Cox accepted that the broadcast focused on a topic of legitimate public interest and that the information provided had the potential to prevent further incidents of self harm. However, she argued that more sensitive editing and appropriate footage was required.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. We are satisfied that the students, teachers and parents filmed entering the karakia at the beginning of the broadcast were identifiable for the purposes of Standard 3. With respect to the blurred footage of the student who self-harmed, we do not consider that any of those shown were identifiable.
 Turning to privacy principle 1, the first question is whether any private facts were disclosed about those identified in the broadcast. We note that the item revealed the name of the school in issue, that a student had self-harmed at the school, that there was a text message circulating among students at the school which encouraged self-harm, and that those shown in the broadcast were attending a karakia or blessing after a number of teen deaths in the area. In our view, none of this information amounted to a “private fact” for the purposes of privacy principle 1.
 In any event, we do not consider that the disclosure of the above information or the footage would be highly offensive to an objective reasonable person. The footage did not imply anything more than that the individuals shown were in some way associated with a school where students had self-harmed, but that something positive was now being done about it. We consider that the item was presented in a manner that endeavoured to be helpful and therapeutic. For these reasons, we find that privacy principle 1 was not breached on this occasion.
 We now turn to consider whether the broadcast amounted to an intrusion into the students’, teachers’ or parents’ interest in solitude or seclusion (privacy principle 3). Principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). We note that those shown in the broadcast were filmed in a public place, outside a marae and school grounds.
 However, privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was “particularly vulnerable”. While those shown in the broadcast were associated with a school where students had self-harmed, there is no evidence to suggest that they were intimately involved with those students. The footage did not show any outward displays of grief; it simply showed a group of people proceeding towards the marae. Therefore, we consider that the students, teachers and parents shown were not “particularly vulnerable” as envisaged by privacy principle 3(c).
 For these reasons we do not consider that the broadcast breached the privacy of any of those shown in the item and we decline to uphold the Standard 3 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
22 February 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
- Tui Cox’s direct privacy complaint – 26 November 2010
- TVNZ’s response to the Authority – 23 December 2010
- Ms Cox’s final comment – 17 January 2011