BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

An item broadcast on 3 National News on 4 July 1994 between 6.00–7.00pm showed

a young man who had made a court appearance for driving under the influence of

alcohol and causing an accident which had killed four people and injured twelve others.

His mother, Mrs O'Neill, complained to the Broadcasting Standards Authority under

s.8(1)(c) of the Broadcasting Act 1989 that the item breached her son's privacy and

had caused him and his family a great deal of distress.

Pointing out that the filming occurred in a public place, and that the young man's name

was not suppressed, TV3 denied that his privacy had been breached. In addition, it

argued that there was a good deal of public interest in the case and a major public

outcry had ensued when he received a non-custodial sentence. It maintained that it

was completely within its rights to broadcast the item without breaching the privacy

principles.

For the reasons given below, the Authority declined to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

The court case in which Mrs O'Neill's son was involved was reported on 3 National

News on 4 July 1994. Mrs O'Neill explained that her son was involved in a tragic

accident in which four young women had been killed and 12 people injured. TV3

advised the Authority that the case was one of intense public interest as Mr O'Neill

was being sentenced for driving under the influence of drink and thereby causing an

accident and had received a non-custodial sentence.

Mrs O'Neill stated that TV3 had been asked not to film out of respect for her son's

and the family's feelings and although he had done everything to avoid the cameras, his

face had been "deliberately televised". Exposing his appearance on nationwide

television, Mrs O'Neill added, amounted to an invasion of his privacy.

Applying the privacy principles used by the Authority in determining privacy

complaints, TV3 pointed out that Mr O'Neill's name had not been suppressed. "He

was taped leaving the building and getting into a car", TV3 continued and it concluded:

TV3 believes there was strong public interest in the story, the action was

recorded in a public place and that we were completely within our rights to

broadcast the item without breaching the privacy principles.

In her response, Mrs O'Neill averred that TV3, before filming, had harassed her son

for some 30–40 minutes despite requests to stay away.

The Authority asked TV3 exactly where Mr O'Neill was when filmed and was

advised that he was in the waiting room of the Ashburton Court. The camera

operator, it added, had filmed him through the window while standing in the carpark

outside. Mrs O'Neill agreed as to where her son had been when filmed but pointed

out that the court did not have a carpark.

The Authority assessed the complaint under s.4(1)(c) of the Broadcasting Act 1989

which requires broadcasters to maintain standards consistent with the privacy of the

individual. In applying this standard, the Authority has developed a number of

privacy principles and it believed that the following three were possibly relevant to

Mrs O'Neill's complaint.

i) The protection of privacy includes legal 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 and 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) Discussing the matter in the "public interest", defined as a legitimate

concern to the public, is a defence to an individual's claim for privacy.

In view of the public nature of Mr O'Neill's conviction and sentence, the Authority

decided that principle (i) did not apply to the situation.

Mrs O'Neill had expressed her disgust at the tactics employed by TV3 to obtain the

shots of her son. However, as both Mr O'Neill and the camera operator had been in a

public place at the time the filming occurred, the Authority believed that it was not

necessary to decide whether the filming amounted to prying in contravention of

principle (iii). The Authority would also point out that should it have ruled that the

filming amounted to prying on this occasion, it would then have been necessary to

consider whether the public interest exemption in principle (iv) was applicable.

Without expressing a firm decision on this point but given a similar factual situation,

the Authority believed that the public interest element outweighed the individual's

interest in privacy.

Mrs O'Neill explained to the Authority the anguish which the accident had caused to

her son and to the family. While the Authority felt sympathy for the family's

situation, it concluded that TV3 had not breached the s.4(1)(c) standard of the Act in

broadcasting the item on 4 July.

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

Sometimes the Authority receives a privacy complaint when the situation would be

more adequately addressed under the standards relating to good taste or dealing fairly

with people referred to. Without expressing any opinion on whether or not a

complaint under these standards would have been upheld, the Authority records that

Mrs O'Neill was advised of the option but declined to pursue it.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
6 October 199

Appendix I

Mrs O'Neill's Formal Complaint to the Broadcasting Standards Authority - 14

July 1994

Mrs Monica O'Neill of Rakaia complained to the Broadcasting Standards Authority

under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast by TV3 of footage of

her son at a court appearance was a breach of his privacy.

In earlier correspondence to the Authority (letters dated 16 May and 23 May), Mrs

O'Neill explained that her son had been involved in a tragic accident, resulting in the

deaths of four young women and injuries to twelve others. When her son appeared at

the Ashburton District Court on 10 May, TV3's news cameras were present, and

although he tried to avoid the filming, he was unable to do so.

The item was broadcast during 3 National News on 4 July and her son's face was

shown in the context of coverage of the case. Mrs O'Neill explained that the publicity

surrounding the case had been very traumatic for the whole family, but that for her son

to see his face on television was absolutely devastating for him.

Pointing out that her son had expressly asked TV3 not to film him and had done

everything he could to avoid the cameras, Mrs O'Neill noted that he now feared being

recognised and was apprehensive about going out in his local area. She advised that

she had written to TV3 expressing her displeasure that the filming had occurred and

asking that the item not be broadcast, out of respect for her son's and the other

victims' feelings. She wrote:

There are few people who know the full facts in this case, so understandably a

lot of bitterness is being expressed by the ill-informed.

Daniel is only 18 years of age, and the burden he must carry for the rest of his

life is going to be very hard on his young shoulders. TV3 have worsened the

situation by intruding on his privacy and exposing his face to the nation,

against his wishes.

Mrs O'Neill commented that although her son had been receiving excellent counselling,

the family was still aware that the unpredictable could happen. She added that if any

harm were to come to him as a result of the publicity, it would kill her.

TV3's Response to the Broadcasting Standards Authority - 3 August 1994

TV3 Network Services Ltd advised the Authority that it had considered the complaint

with reference to the Authority's Privacy Principles, specifically principles iii and iv.

It maintained that the footage of Daniel O'Neill was shot in a public place and that the

subject was a person of intense public interest. At the time the pictures were

screened, TV3 reported, he was being sentenced for drunk driving involving an

accident which resulted in the deaths of four people and injuries to twelve others. It

continued:

Drink driving is an issue that has aroused much public debate in this country in

recent times. The fact that he received a non-custodial sentence sparked a

major outcry from many sectors of the community. It was the subject of

radio, newspaper and television stories. In other words, the Daniel O'Neill

case was one of intense public interest.

TV3 pointed out that the defendant did not have name suppression during the

proceedings. It denied that its reporter had attempted to obstruct the defendant,

explaining that she waited outside the building watching one of the exits while the

cameraman watched the other. When she called her cameraman, the defendant made a

dash for the exit and was filmed leaving the building and getting into a car.

TV3 maintained that any distress felt by Mr O'Neill was self-induced and caused by

his attempt to avoid being filmed.

It added that it understood a friend of Daniel O'Neill's spoke to police at the court

and that police were present during its attempts to film Mr O'Neill and made no

attempt to approach the film crew.

It concluded:

TV3 believes there was strong public interest in the story, the action was

recorded in a public place and that we were completely within our rights to

broadcast the item without breaching the privacy principles.

Mrs O'Neill's Final Comment to the Authority - 11 August 1994

When asked to make a brief final comment, Mrs O'Neill listed the following points in

TV3's letter which she described as "discrepancies".

The charge had been "driving under the influence of drink" - not the dramatic term of

"drunk driving". Had TV3 investigated the circumstances, she added, it would have

been aware of the reasons for the non-custodial sentence. TV3, she continued, was the

sole representative of what it described as the "intense public interest".

Discussing TV3's actions at length, she said it was an "outright lie" to deny that the

reporter obstructed her son. Naming witnesses, she said that the harassment lasted

some 30 - 40 minutes despite requests to stay away. She denied that any distress was

self-imposed. She said the people present were disgusted at TV3's actions and an

unknown on-looker had expressed his displeasure by obstructing the cameraman. The

police had not been present the entire time as TV3 alleged and, furthermore, one police

officer had suggested to TV3 to leave him alone.

Mrs O'Neill concluded:

TV3 have never given their reasons for screening Daniel's face. Was it in the

public interest? If so, who was it that asked to see his face? What benefit was it

to them? The behaviour of TV3 representatives on May 10th was deceitful and

offensive and judging by their 3rd August letter to you, nothing has changed.

The heartache caused to Daniel and his family has been callous and unnecessary.

In conclusion, the media should note:- "To receive respect one must first earn it"

and another quote - "Liars need to have good memories"

Further Correspondence

Upon watching the tape of the broadcast supplied by TV3, it was apparent that Mr

O'Neill was in some enclosed place at the time the shots were taken. Consequently,

in a letter dated 17 August 1994, the Authority asked TV3 to advise precisely where

he had been when the shots were taken.

TV3 informed the Authority in a letter dated 29 August 1994 that the shots were

taken while he was in the Ashburton court's public waiting room. The pictures, it

added, were shot through a window from the court carpark. Mrs O'Neill advised the

Authority in a letter dated 1 September 1994 that Daniel was in the court foyer but

the camera operator could not have been in the carpark as the court did not have one.

Pointing out that the heartache from the incident would be with the family forever, she

said that Daniel was also the victim of the accident.