BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Holmes – interview with Parekura Horomia – comments made during filming break – broadcast of private conversation – breach of privacy

Findings
Privacy – Privacy Principle (iii) – intentional interference with Mr Horomia's interest in solitude or seclusion – offensive – no consent – insufficient public interest – uphold

This headnote does not form part of the decision.

Summary

An interview with the Minister of Maori Affairs designate, Parekura Horomia, was broadcast on Holmes on TV One at 7.00pm on 24 July 2000. In an addendum to the interview, viewers heard a recording of comments made by Mr Horomia during a filming break about his distrust of the media.

Jo Crowley complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached Mr Horomia's privacy. The complainant believed that the taping of Mr Horomia's comments had been "undisclosed", and that the broadcast had been ethically unsustainable.

In its response, Television New Zealand Ltd, the broadcaster, submitted that Mr Horomia's privacy had not been invaded by the broadcast. It explained it did not believe the broadcast either contained any private facts which were highly offensive or objectionable, interfered with Mr Horomia's interest in solitude or seclusion, or abused, denigrated or ridiculed him. TVNZ also contended that the information broadcast was of public interest. In addition, it noted that Mr Horomia had been informed that the microphone he was wearing would be recording him all of the time, and that it had received no complaints about the item from Mr Horomia or his advisers.

For the reasons given below, the Authority upholds the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.

An interview with the Minister of Maori Affairs designate, Parekura Horomia, was broadcast on Holmes on TV One at 7.00pm on 24 July 2000. In an addendum to the interview, viewers heard a recording of comments made by Mr Horomia during a filming break about his distrust of the media.

Jo Crowley complained to the Authority under s.8(1)(c) of the Broadcasting Act that the broadcast had breached Mr Horomia's privacy. The complainant believed that the taping of Mr Horomia's comments had been "undisclosed", and that the broadcast was "a complete betrayal of him personally and on the wider horizon, ethically unsustainable".

The complainant suggested that TVNZ should apologise to Mr Horomia.

TVNZ began its response to the complaint by commenting on the extent to which Mr Horomia knew about his lapel microphone's recording capabilities. It said that it understood from its investigations that a cameraman had told Mr Horomia that the microphone would be on "all the time". It also reported that Mr Horomia demonstrated that he was "technically literate" in relation to the microphone.

In TVNZ's view, Mr Horomia may have forgotten about the microphone when he made his unguarded comment about the media. However, it contended that there was no subterfuge on the part of Holmes.

TVNZ then commented that it considered an important issue in this case was "the public's right to know". It observed that Mr Horomia was not an "ordinary citizen" unexpectedly caught up in a news event, but an elected politician then on the point of being elevated to the cabinet. It maintained that holders and aspirant holders of high public office:

must expect from responsible media a greater and more rigorous degree of scrutiny than a citizen not driven by such ambitions.

TVNZ also contended that Mr Horomia's professed dislike or distrust of the news media was information of public interest, as it was useful for the public to be able to put his future actions and utterances into proper context.

Finally, before considering the application of relevant Privacy Principles to the complaint, TVNZ advised that it had not received any expressions of discontent about the item from Mr Horomia or from any of his advisers.

TVNZ then considered the application of the Authority‘s Privacy Principles. It believed that Privacy Principles (i), (iii), (iv) and (vii) were relevant. They 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.

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.

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.

As to Privacy Principle (i), TVNZ submitted that the revelation that Mr Horomia did not like or trust the media was not a private fact which was "highly offensive or objectionable to a reasonable person".

TVNZ submitted that Privacy Principle (iii) had not been breached because the comments were made while he was wearing a microphone which he did not switch off or ask to be switched off. In those circumstances, it did not believe there had been any "intentional interference" with any interest Mr Horomia may have had in "solitude or seclusion". It contended that the broadcast

simply report[ed] a remark made in a public place (a marae) by a man about to become a Cabinet minister on a topic which is of genuine public interest.

Next, TVNZ expressed its view that Privacy Principle (iv) had not been breached, as it did not accept Mr Horomia was abused, ridiculed or denigrated.

Finally, TVNZ commented on the application of Privacy Principle (vii). It submitted that the extract broadcast was of legitimate concern or interest to the public.

The Authority's Findings

The question for the Authority is whether Mr Horomia‘s privacy was breached by the broadcast of his unguarded comments about the media. The Authority considers the application of Privacy Principles (i), (iii) and (iv), being the principles under which TVNZ assessed the complaint.

Privacy Principle (i) requires that there is a broadcast of private facts, being facts which are considered offensive and objectionable to a reasonable person. The Authority considers that the facts revealed were conveyed in a conversation which Mr Horomia did not intend for broadcast. However, in the Authority‘s opinion, a reasonable person of ordinary sensibilities would not consider Mr Horomia‘s distrust for the media to be an offensive and objectionable fact. Accordingly, it finds that Privacy Principle (i) was not breached.

A finding that Privacy Principle (iv) is breached requires that private facts are used in a way which abuses, denigrates or ridicules. On this occasion, the Authority does not consider that the broadcast had any of these effects. Accordingly, the Authority concludes that the broadcast did not breach Privacy Principle (iv).

Privacy Principle (iii) provides another basis for a privacy breach where a person's interest in solitude or seclusion is interfered with in an offensive manner. On this occasion, the Authority considers that the broadcast did intentionally interfere with Mr Horomia's privacy. As noted above, the Authority is of the opinion that the remarks made by Mr Horomia were not intended for broadcast. It considers that this ought to have been apparent to TVNZ, because the remarks were made during a break in filming, and were made to a female member of his whanau. The Authority is not persuaded as to the relevance of TVNZ's arguments concerning Mr Horomia's knowledge of the technical capabilities of the microphone. In its view, despite the knowledge Mr Horomia may have possessed, it is apparent he believed his remarks were made in private. The Authority also considers that an ordinary person would consider that TVNZ's actions in broadcasting the comments to be offensive, given that their broadcast was clearly not expected by him and there no overriding public interest by it.

Having established that Privacy Principle (iii) was breached by the broadcast, the Authority now turns its attention to whether the broadcast was justified under Privacy Principles (vi) or (vii). Those principles provide defences to privacy breaches by broadcasters where there is consent or public interest. As to consent, the Authority considers that any consent given to the interview did not extend to consent to the broadcast of the private comments about the media. Furthermore, the Authority considers, as noted above, that there was insufficient public interest in revealing Mr Horomia's comments to justify the invasion into his privacy.

For the reasons given, the Authority upholds the complaint that an item on Holmes broadcast by Television New Zealand Ltd on TV One at 7.00pm on 24 July 2000 breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a complaint, the Authority may impose penalties under ss.13 and 16 of the Broadcasting Act. It decides on this occasion not to impose an order, on the basis that, in all the circumstances, publication of this decision is sufficient penalty.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
12 October 2000

Appendix

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

1.    Jo Crowley's Formal Complaint to the Broadcasting Standards Authority – 25 July 2000

2.    Television New Zealand Ltd's Response to the Formal Complaint – 8 August 2000