BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
60 Minutes – item featured a woman who claimed to have suffered terrible experiences while in state care in the 1960s – photo shown of the woman as a young child with five other children – allegedly in breach of privacy and accuracy

3 News – item reported on government’s decision to bring forward a review of alleged abuse suffered by people while in state care during the 1960s and 70s – made reference to the 60 Minutes item and the woman who alleged she had been abused – showed the same photo as contained in the 60 Minutes item – allegedly in breach of privacy and accuracy

Findings
60 Minutes and 3 News

Standard 3 (privacy) – children not identifiable beyond close family and friends – did not disclose any private facts – not upheld

Standard 5 (accuracy) – viewers would not have been misled – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 60 Minutes, broadcast on TV3 at 7.30pm on Monday 31 August 2009, featured a woman who allegedly suffered terrible experiences while in state care as a child during the 1960s. The presenter introduced the item by saying:

Imagine being forced to spend your childhood in a welfare home. Placed in the care of authoritarian, maybe abusive, adults. Told that you and your friends are all suffering from a brain disorder. Forced to take powerful drugs, even given electric shock treatment. This is just part of the nightmare that hundreds of young Kiwis faced in state care.

[2]   During the woman’s discussion of her experiences, a black and white photograph was shown of her as a child. The shot of the photograph focused on the woman and then zoomed out showing four other children and a baby. As the photograph was shown, the presenter said:

[Name of woman] was taken into care in the 1960s. Concerned with the conditions the ten-child family was living in, Child Welfare split the siblings between various homes.

[3]   An item on 3 News, earlier the same evening, reported that the government had decided to bring forward a review into the alleged violent and sexual abuse of hundreds of New Zealand children who were in state care during the 1960s and 70s. During the introduction to the item, an enlarged version of the same black and white photograph shown on 60 Minutes featured on the screen behind the presenter. Footage from the woman’s interview with 60 Minutes was included later in the item.

Complaints

[4]   J and E Wardle, on behalf of themselves and their daughters, and Linda Dibble made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the use of the photograph in both items had breached standards of privacy and accuracy.

[5]   Ms Dibble stated that she was a daughter of Mr Wardle and that she and her two sisters were in the photograph shown.

[6]   Mr Wardle said that he had taken the photograph of the children in the 1960s and that his three daughters were in it, along with the woman interviewed by 60 Minutes, who was a cousin.

[7]  The complainants argued that the commentary given while the photograph was shown in the 60 Minutes item implied that all the children contained in it had been placed into state care. They contended that this was misleading, because Ms Dibble and her two sisters had never been placed into state care.

[8]   The complainants stated that they had not given consent for the photograph to be used in the items and argued that its use had breached their privacy. They considered that the faces of the children in the photograph, excluding that of the woman interviewed by 60 Minutes, should have been pixellated.

Standards

[9]   Standards 3 and 5 and guideline 3a of the Free-to-Air Television Code of Broadcasting Practice and privacy principle 1 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).

Privacy principle 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.

Standard 5 Accuracy

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/or
• does not mislead.

Broadcaster's Response to the Complainant

[10]   TVWorks stated that when it considered an alleged breach of Standard 3, it had to first decide whether the person whose privacy had been interfered with was identifiable in the item. It contended that, for the purposes of the privacy standard, “identifiable” meant recognisable by viewers who fell outside close friends and immediate family of the individual involved.

[11]   The broadcaster stated that the photograph had been supplied by the woman interviewed by 60 Minutes and that “it was the only image she has of her childhood”. It noted that the photograph was several decades old and contended that it was only shown for a brief time in both items.

[12]   With respect to the 60 Minutes item, TVWorks said the shot of the photograph began with a close up of the woman being interviewed, before the shot zoomed out to show the rest of the children. It said that the woman taking part was the only person referred to in the voiceover and that none of the other children had been identified by name.

[13]   The broadcaster considered that, with the exception of the woman who was the focus of the items, it was unlikely that the other children would have been identifiable from the decades-old image to anyone other than those people already intimately acquainted with their family history. It argued that anyone who was so acquainted with the complainants’ family situation would also have been aware of the circumstances of the individuals shown in the photograph.

[14]   TVWorks contended that the standard had no application in the circumstances and it declined to uphold the privacy complaint.

[15]   Turning to accuracy, the broadcaster noted that neither item had said all the children in the photograph were the woman’s siblings or that all of them had been taken into state care. It argued that both stories focused heavily on the woman concerned and that most viewers would not have made any judgment with regard to the other children contained in the photograph.

[16]   TVWorks contended that showing the full photograph was not misleading and had not breached Standard 5. It declined to uphold the complaint.

Referral to the Authority

[17]   Dissatisfied with TVWorks’ response, the complainants referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. They maintained that there was no legitimate reason to show the other children in the photograph and that it was misleading and a breach of their privacy.

Authority's Determination

[18]   The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

[19]   In the Authority’s view, the essence of the complainants’ privacy complaint is that a family photograph was broadcast in a programme without the family’s consent. It points out that the privacy standard and the Authority’s Privacy Principles do not automatically preclude a family photograph being used without consent; what matters is whether the photograph discloses any private facts about an identifiable individual in a manner that an objective reasonable person would find highly offensive.

[20]   In Moore and TVWorks Ltd,¹ the Authority stated that in order for an individual's privacy to be breached, that person must be "identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast".

60 Minutes item

[21]   The Authority considers that the only viewers who would have been able to identify Ms Dibble and her sisters from the photograph would be family and close friends who would have already known that they were not placed into state care.

[22]   Neither the photograph nor the surrounding commentary disclosed the complainants’ names or their current appearance. For this reason, the Authority is of the view that anyone outside of the circle of close family and friends would not have been able to reach any conclusions about the children’s identities.

[23]   Accordingly, since the complainants were not “identifiable” from the photograph, the Authority declines to uphold the complaints that the 60 Minutes item breached Standard 3.

3 News item

[24]   The Authority notes that the photograph was simply shown behind the presenter in the introduction to the 3 News item. It was not linked to the complainants’ cousin who, later in the item, said that she had suffered abuse in state care.

[25]   As above, the Authority considers that the ordinary viewer would not have been able to identify the complainants from the photograph unless they were close friends or family who had known them as children.

[26]   Accordingly, the Authority declines to uphold the complaints that the 3 News item breached Standard 3.

Standard 5 (accuracy)

[27]   Standard 5 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.

[28]   The complainants argued that the commentary in the 60 Minutes item implied that all the children in the photo had been placed into state care. They contended that this was misleading, because they had never been placed into state care.

[29]   As stated in paragraph [21], only close friends and family would have been able to identify the children from the photograph nearly 50 years after it was taken. These people would not have been misled, because they would have known, first, that the children in the picture were not all siblings and, second, that none of the Wardle’s children had been taken into state care.

[30]   With respect to viewers who would not recognise the complainants, the Authority notes that the identities of the other children in the picture were entirely incidental to the item, which focussed on the woman who had suffered abuse in state care. Therefore, whether or not the complainants were part of the 10-child family referred to in the commentary was not a “material point of fact” to which the accuracy standard applies.

[31]   Given that the complainants were not recognisable to the general public, the Authority considers that it would not be a reasonable and justified limitation on TVWorks’ freedom of expression to uphold this part of the complaint.

[32]   Accordingly, the Authority declines to uphold the complaints that Standard 5 was breached in either item.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2009

Appendix

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

1.          Linda Dibble and J A and ES Wardle and daughters’ formal complaint – 9 September 2009
2.         TVWorks’ response to the formal complaint – 9 October 2009
3.         The complainants’ referral to the Authority – 21 October 2009
4.         TVWorks’ response to the Authority – 10 November 2009

¹Decision No. 2009-036