BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The death of a young New Zealand woman on her honeymoon in an air crash off Peru

was reported in an item on One Network News between 6.00–7.00pm on 3 October

1996. The item reported that the woman was the daughter of a named former senior

public servant, and showed shots of the family home where the crash victim had

grown up. It also reported that the house in the Wellington suburb of Karori was

empty as the family was overseas.

Mr Gray complained to Television New Zealand Ltd that the item breached the

bereaved family's privacy, and the shot of the house could attract a criminal or

unstable individual.

Explaining that the shot of the home was taken carefully to make identification almost

impossible, TVNZ nevertheless acknowledged that it had erred in disclosing

information which was not relevant to the item. However, as the complainant was not

apparently involved with the home owner in any way, it declined to uphold the

complaint.

Dissatisfied with TVNZ's decision, Mr Gray referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint that the item breached the

family's privacy.

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

determines the complaint without a formal hearing.

A couple on their honeymoon was killed in an air crash in the sea off Peru. When this

was reported on One Network News, it was explained that the woman grew up in

Wellington and was the daughter of a former senior public servant. He was named,

and the item included shots of the family home in the suburb of Karori. It also

reported that the woman's parents were overseas and had not yet returned from the

wedding which, it was said, had been in England.

Mr Gray complained to TVNZ that the details about the father and the empty home

were not relevant to the tragedy. While he accepted the importance of the freedom of

the press, he considered that a little self-censorship would have been appropriate. He

later alleged a breach of the family's privacy and considered that a formal apology to

the family and the public was appropriate.

Assessing the complaint, first, under s.4(1)(c) of the Broadcasting Act 1989 which

requires broadcasters to maintain standards consistent with the privacy of the

individual, TVNZ acknowledged that it had erred in showing pictures of the family

house and in reporting that it was empty.

It also considered the complaint under standards G2 and G17 of the Television Code

of Broadcasting Practice. Standard G2 requires broadcasters:

G2  To take into consideration currently accepted norms of decency and taste

in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

The substance of standard G17 reads:

G17 Unnecessary intrusion in the grief and distress of victims and their families

or friends must be avoided. Funeral coverage should reflect sensitivity and

understanding for the feelings and privacy of the bereaved.

TVNZ declined to uphold the complaint under either standard.

Although acknowledging that it should not have shown the home and reported that it

was empty, TVNZ did not thereby uphold the complaint which alleged a breach of

privacy. Rather, it explored the issue of whether a person, who had no apparent

connection with an item, could allege a breach of another person's privacy. Expressing

concern that a complaint from someone unconnected to the item could cause

embarrassment to the named person and involve further – and possibly unwanted –

publicity, TVNZ concluded by declining to uphold the broadcast as a breach of

s.4(1)(c) of the Act.

When referring the complaint to the Authority, Mr Gray focussed on the privacy

issue. He acknowledged that he had no connection with the family named in the item,

but maintained that the issue was whether the broadcast involved a breach of the

standards. As TVNZ had said it would have upheld the complaint if it had been made

by a family member, Mr Gray insisted that a breach had occurred. As an analogy, he

pointed out the Police relied on a disinterested public to report crimes. In response to

TVNZ's point that an apology could become a further invasion of privacy, Mr Gray

argued that an apology could be made in general terms.

Mr Gray raised the possibility that the Authority might wish to contact the family

named in the item to tell them that it had received a complaint. If the Authority

decided to do so, he said, his name could be released to the family.

In its report to the Authority, TVNZ wrote:

What has prompted us to stop short of upholding this complaint is the question

of whether a person can legitimately allege an invasion of privacy upon an

individual unknown to him, without having that person's mandate to do so.

...

If anybody is permitted to allege an invasion of privacy on behalf of anyone else

then the individual whose privacy is invaded may find him or herself unwillingly

at the centre of a public enquiry which that person has not sought and does not

want.

In his final comment in response, Mr Gray stated:

The simplest answer to all these matters is for TVNZ to keep their noses, and

extension those of, perhaps, millions of people, out of the private affairs of

families such as the [...] in the first place. There is a clear difference in my mind

between news; in this case an air tragedy, and private intrusion; as I have

previously outlined in detail.

The Authority considers that the issue raised in the complaint is relatively

straightforward. First, it has always been its practice to accept complaints which

allege a breach of s.4(1)(c) – invasion of an individual's privacy – whether or not the

complaint is made by a person directly affected by the item. A recent example is

Decision No: 1996-130–132 where the Authority accepted, and upheld, a complaint –

from a person apparently not associated with the broadcast – that the use of a hidden

camera (a bagcam) involved a breach of privacy.

In the United Kingdom, the legislative provision which provides for privacy

complaints states that they "shall not be entertained ... unless made by the person

affected". The New Zealand legislation does not include this statement which, in the

Authority's opinion, adds weight to its view that complaints which allege a breach of

an individual's privacy can be made by anyone.

Nevertheless, the Authority accepts that TVNZ raised a valid matter when it pointed

out that further publicity might add to any breach of privacy which had occurred.

With complaints which allege a breach of an individual's privacy, the Authority's

response is determined by the facts of each matter. As a general rule, it does not

believe that it is appropriate to approach the named individual. Nevertheless, because

of the infinite variety of circumstances which can arise, it does not rule out this action

as a possibility some time in the future.

In the decision noted above (No: 1996-130–132), the person whose privacy was

allegedly contravened also complained and he maintained that his privacy had been

invaded by the surreptitious use of a camera. Upon upholding both privacy

complaints, the Authority required the broadcaster to broadcast a summary of the

decision in which both complainants – including the offended party – were named. In

other decisions, however, the Authority has suppressed the name of the complainant

to avoid further unwarranted publicity.

In this instance, the Authority agrees with TVNZ that the broadcast involved the

invasion of the named family's privacy and concludes that in these circumstances the

broadcast involved a breach of s.4(1)(c) of the Act.

For the reasons above, the Authority upholds the complaint that the broadcast

by Television New Zealand Ltd of an item of news on One Network News on 3

October 1996 breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a complaint, the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. The imposition of an order is a matter of discretion and it is

in the exercise of this discretionary power that the Authority considers that it is

appropriate to take into account any specific relevant circumstances with regard to the

particular complaint.

In this incident, the Authority is of the view that it would not be appropriate to

impose an order on the basis that any order could well involve a further intrusion into

the named family's privacy. Furthermore, to minimise this possibility, the name of

the family whose privacy was transgressed by the broadcast of the item complained

about is not recorded in this decision.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
12 December 1996

Appendix

Mr Gray's Complaint to Television New Zealand Ltd - 3 October 1996

George Gray of Maungaturoto complained to Television New Zealand Ltd about an

item on One Network News broadcast between 6.00 - 7.00pm that evening. The item

dealt with an air crash near Peru in which a New Zealand woman had been killed. The

item showed the woman's parents' home with the curtains drawn where it was said,

the victim had grown up. It was also reported that the parents were overseas, and that

the house was in the Wellington suburb of Karori. It also referred to the woman's

father's work experience.

Pointing out that these details were not related to the tragedy, Mr Gray expressed

concern that the family's privacy was invaded and their house could become the target

for burglars. While acknowledging the freedom of the media, Mr Gray maintained that

in circumstances such as the present, a little self-censorship was warranted.

Further Correspondence

By facsimile on 7 October 1996, TVNZ advised Mr Gray that it had been careful not

to identify the street or the immediate neighbourhood. Following his call, however, it

had arranged for security checks on the home.

In his response dated 8 October, Mr Gray asked that his complaint be treated as a

formal one. The bereaved family's privacy, he wrote, had been breached. The

pictures of the family home - a private house - were not directly relevant to the news

item about a tragedy in Peru. Mr Gray considered that a formal apology to the family

and to the public was necessary.

TVNZ's Response to the Formal Complaint - 17 October 1996

TVNZ advised that the complaint had been assessed under s.4(1)(c) of the

Broadcasting Act 1989 and standards G2 and G17 of the Television Codes of

Broadcasting Practice.

It was wrong, it reported, for the item to combine pictures of the house with

information about the location and that it was empty. TVNZ continued:

Clearly then, "One Network News" had erred.

It considered that the broadcast breached principle (v) of the privacy principles

applied by the Authority as there was no compelling public interest for disclosure of

the information about the home.

TVNZ then considered the question of whether a complainant, who had no apparent

connection with the item, could allege a breach of the named person's privacy.

Acknowledging that it would have upheld a complaint from the named person or from

someone acting on his behalf, TVNZ wrote:

TVNZ is of the view that a different situation applies when the complaint

comes from someone apparently having no connection with the family.

It gave the following reasons:

Because this is a formal process, decisions carry the weight of precedent and

TVNZ sees real difficulties arising if it is established that any citizen can

complain on behalf of other citizens known to them. A most obvious

consequence is that the person whose privacy may or may not have been

invaded may be embarrassed to find themselves the subject of a formal

complaints investigation which they did not instigate, and upon which they were

not consulted by the complainant concerned.

It is noted that the formal complaints procedure has a right of reference to the

Broadcasting Standards Authority, and that all decisions of that Authority are

made public and distributed to the news media. We suggest that few people

would be happy to have their affairs publicised in this manner unless they

themselves had made the complaint. Indeed such publication, unsolicited and

unexpected, might itself by regarded as a breach of privacy (as might an

unrequested apology broadcast by a television station, as you seem to suggest).

Because of the absence of any precedent, it declined to make a ruling other than noting

that should a privacy complaint have been made by the home owner or his family, it

would have been upheld as a breach of s.4(1)(c) on the basis that privacy principle (v)

was contravened.

Declining to uphold the complaint under standards G2 and G17, TVNZ concluded:

As indicated by this letter, your complaint has prompted a good deal of

discussion at TVNZ and it is acknowledged by the News and Current Affairs

Department that the use of the pictures of the house was ill-judged. News staff

concerned have been advised of their error.

Mr Gray's Referral to the Broadcasting Standards Authority - 23 October 1996

Dissatisfied with TVNZ's decision, Mr Gray referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Noting that TVNZ would have upheld the complaint had it been made by a member of

the family, Mr Gray wrote:

To my mind either privacy was breached in any particular circumstance or it

was not. Clearly in this case it was. Additionally, it is quite usual for a stranger

to take the role of advocate in many circumstances. For example the police rely

on evidence from the public to solve crime. If individuals were not concerned for

their fellow citizens, albeit strangers, the police would be powerless.

Mr Gray said that TVNZ made a valid point in pointing out that an apology in itself

might breach the home owner's privacy. However, as any form of apology involved

re-visiting the original wrong, he did not accept that it was sufficient to justify the

absence of an apology on this occasion. Moreover, apologies could be made in general

terms.

Observing that TVNZ said that there was no precedent on the matter, Mr Gray said

that he was bringing the matter to the Authority's attention to enable it to establish a

reasonable procedure. He proposed the following:

That the Authority decide on the Breach of Privacy. Once it is agreed that there

has been such a Breach that [the home owner] and his family be contacted and be

informed that I, a stranger have complained on their behalf, in their absence. The

absence is important as [the home owner] may have been unaware of the Breach

of Privacy; but that is not to say that it has not happened.

To my mind this is crystal clear.

The contact with the [home owner's] family should be done in as compassionate

a way as possible, so as not to compound their grief. They should be given the

right to stop the process going into the public arena again, that is that any

apology is made privately to them and to me. If this does not fall within existing

procedures followed by the Authority, the procedures should be modified.

He consented to his last name being released to the home-owner's family. It was

important, Mr Gray concluded, that the process allowed for people to go into bat on

other people's behalf.

TVNZ's Response to the Authority - 30 October 1996

In its report to the Authority, TVNZ again acknowledged that it had erred. It

continued:

What has prompted us to stop short of upholding this complaint is the question

of whether a person can legitimately allege an invasion of privacy upon an

individual unknown to him, without having that person's mandate to do so.

It is our view that such an action could in itself be considered an invasion of

privacy. Because we recognise that Mr Gray has acted out of the finest of

motives in pursuing his complaint we do not wish to personalise our response to

his referral more than we have to. What we are anxious to do is to examine the

underlying principle.

It would seem for instance that if I had my privacy invaded by a broadcaster,

whether or not I took that to a formal complaints procedure is my business.

There may be good cause to do so. On the other hand there may be any number

of reasons why I might decide to refrain.

If anybody is permitted to allege an invasion of privacy on behalf of anyone else

then the individual whose privacy is invaded may find him or herself unwillingly

at the centre of a public enquiry which that person has not sought and does not

want.

Pointing out the Authority's decisions were required by legislation to be made public,

TVNZ said that it was not aware whether the home owner had not taken action

because he was aware of the broadcast, or because he did not want to pursue the

matter. It did not accept that the Authority should approach the home owner and,

because of the Act, the home owner could not stop the process at that stage. It wrote:

It is our view that the correct course for Mr Gray would have been for him to

draw the privacy matter to [the home owner's] attention in the first instance and

leave it to [the home owner] to decide on the course he would take.

While the present complaint involved a situation where it admitted fault, TVNZ said

the procedure adopted would have to apply also in the situation where the complaint

was disputed. TVNZ said that in that situation further information, known to the

person whose privacy was allegedly breached would be released to a third person.

Mr Gray's Final Comment - 11 November 1996

Mr Gray maintained that the Authority should be involved as the broadcast contained

a clear breach of privacy. He agreed that the family whose privacy was involved

should have the final say, after reading all the material as to whether an apology should

be broadcast.

Emphasising that a matter of principle was involved, Mr Gray argued that the

Authority should establish a precedent which accepted that stranger could make a

privacy complaint. He wrote:

The simplest answers to all these matters is for TVNZ to keep their noses, and

by extension those of, perhaps, millions of people, out of the private affairs of

families such as the [...] in the first place. There is a clear difference in my mind

between news; in this case an air tragedy, and private intrusion; as I have

previously outlined in detail.

It will not do for TVNZ, or others, to weave a cocoon of silence and self-

righteousness around quite reasonable complaints which are matters of public

concern and principle.