BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.] 

The Authority has not upheld a privacy complaint about items on Newshub and The AM Show, which reported on a Police raid of a gang house and featured footage of the complainant’s property, with the house number blurred. The Authority found that the privacy standard did not apply in this case, as the complainant was not identifiable in the broadcast and no private information or material was disclosed about them. As the house was only filmed to the extent visible from the street, the broadcaster did not intrude upon the complainant’s interest in solitude or seclusion in a way that was highly offensive. The Authority recognised the public interest in the broadcast and found that the harm alleged to have been caused by the complainant did not outweigh the right to freedom of expression.  

Not Upheld: Privacy  

The broadcasts and background  

[1]  On 11 and 12 April 2019, Newshub and The AM Show reported on a Police raid of a gang house. The reports featured footage of the complainant’s house, with the house number blurred, at the entrance to the shared driveway where the gang house was located.

[2]  DV complained directly to the Authority that these broadcasts breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[3]  As part of our consideration of this complaint, we have viewed recordings of these broadcasts and have read the correspondence listed in the Appendix.

[4]  Given the nature of this complaint, we have granted name suppression to the complainant and have referred to them as ‘DV’.

The complaint and the broadcaster’s response

[5]  DV complained:

• They lived in a distinctive house in a small area and they were therefore identifiable as the homeowner.
• They received numerous phone calls from friends and family who asked why their house was shown in connection to a Police raid. It was not clear from the broadcasts that the house concerned was at the end of the driveway, behind DV’s.
• The reports connected the complainant with gang activity, which was traumatic and ‘stigmatised’ their home.

[6]  MediaWorks responded:

• Although the complainant’s house was briefly visible during the broadcast, it was clear the Police were attending a property at the end of the driveway.
• The complainant was not the subject of the broadcast and was not named or otherwise identified. The broadcast did not disclose any information about them.
• The emergence of this particular gang in New Zealand was an issue of significant public interest and the location of the gang house was a relevant and newsworthy detail. Inclusion of this footage was therefore justified in the public interest.

The standard and relevant guidelines

[7]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual.

[8]   In deciding whether the standard has been breached, we consider three criteria:

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable;
• whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy; and
• whether the disclosure could be considered highly offensive to an objective reasonable person.¹

[9]  We also consider guideline 10e to the privacy standard, which states:

Broadcasters should not intentionally intrude upon a person’s reasonable expectation of solitude or seclusion in a way that is highly offensive to an objective reasonable person in the position of the person affected.

[10]  ‘Solitude’ is defined as the state of being alone and ‘seclusion’ is defined as a state of screening or shutting off from outside access or public view.² A person may have an interest in seclusion in their home or on their property even when they are not there.³

Our findings

[11]  When we make a decision on a complaint that a broadcast has breached broadcasting standards, we weigh the important right to freedom of expression against the level of actual or potential harm that might be caused by the broadcast. The right to freedom of expression includes both the right of broadcasters to impart ideas and information, and of audiences to receive that information.

[12]  We agreed that this broadcast had some value in terms of the right to freedom of expression. There was a level of public interest in showing viewers the location of the gang house, footage of the Police conducting the raid and the level of wealth that appeared to have been accumulated by the gang.

[13]  The complainant has argued, however, that the broadcast caused harm because their house was identified by the broadcaster, which was a breach of their privacy and reflected negatively on them.

[14]  While we have sympathy for the complainant in these circumstances, we have found that the privacy standard does not apply in this case. In summary, we do not consider that the complainant was identifiable in the broadcast, which is a requirement of the standard. The broadcast offered no information about the complainant that would allow viewers, other than those who already knew them, to connect them with the house that was shown.

[15]  Further, we do not consider that an inferred connection between the complainant’s property and the property being investigated is private information or material about the complainant, over which they have a reasonable expectation of privacy.

[16]  We have therefore found that the privacy standard is not applicable in this case, and the harm alleged to have been caused does not outweigh the right to freedom of expression. We expand on our reasons for this finding below.

Was the complainant identifiable?

[17]  First, we consider whether the complainant was identifiable, beyond family and close friends who might reasonably be expected to know about the matter dealt with in the broadcast.⁴

[18]  The Authority has previously stated that an address must be linked to an ‘identifiable individual’ before a broadcast can be said to have breached the privacy standard.[5] This is because the right to privacy is an individual right; it attaches to a person, not to property.

[19]  The question for the Authority is therefore whether somebody, without a close association with the complainant and who was not already familiar with their property, would have identified them from the footage shown. We deal with the issue of the complainant’s alleged connection to the focus of the broadcasts (being the Police raid), below from paragraph [24].

[20]  While the complainant’s house was filmed, they had no involvement with the programme. They were not filmed, and were not referred to or mentioned during the broadcast. Newshub identified a suburb as being where the raid occurred, and we note that the complainant has referred to a different, but neighbouring suburb. The house itself was filmed only to the extent it was already visible from the street. The house number was blurred and a wide shot of the house was shown only briefly during each item.

[21]  The complainant has argued that their house is distinctive within their small community, and it is ‘well known as ‘[DV’s] house’’. While members of the wider community may recognise the house, the broadcast offered no further information about the complainant that would allow viewers, other than those who already knew them, to connect them with the house that was shown. 

[22]  We therefore do not consider the complainant would have been identifiable in the broadcast, beyond family and close friends who would have already known that they were the owner of the property.  As the complainant was not identifiable, no breach of the complainant’s privacy can have occurred.

[23]  While we have found that DV was not identifiable in the broadcast, meaning the privacy standard does not apply, we thought it may be helpful to set out our analysis of the remaining aspects of the privacy standard below, given we can appreciate the concerns that the complainant has raised.

Was private information or material disclosed, over which the complainant had a reasonable expectation of privacy?

[24]  We next considered whether private information or material was disclosed during the broadcast.

[25]  In a High Court appeal of an Authority decision, Television New Zealand Ltd v KW, Courtney J noted that there could be no expectation of privacy ‘in terms of what can actually be seen from the street’, as it was not unlawful to photograph someone’s private property.[6] Broadcast of footage of the complainant’s home, of itself, would therefore not be sufficient to find a breach of the privacy standard. 

[26]  We acknowledge that these broadcasts connected the complainant’s house with the gang raid, and viewers might infer that the property at the front of the driveway was the one Police were attending. Police are shown walking down the driveway from the rear of the property, but we agree with the complainant that it is unclear from the broadcast footage that there is a second house at the end of the driveway.

[27]  However, the programme was not concerned with the complainant. An inferred connection between their property and the property being investigated is not enough to find a breach of privacy. The Authority has previously noted that, ‘Broadcasters cannot reasonably be expected to protect the privacy of all individuals who have any connection with a programme participant or a featured location, particularly where there is no reference to them in the broadcast.’[7] 

[28]  Therefore, even if we had found that the complainant was identifiable, we do not consider the complainant had a reasonable expectation of privacy over images of their property in these circumstances, and the disclosure of images of their house in this footage would not have been highly offensive to an objective reasonable person in the complainant’s shoes.

Did the broadcaster intentionally intrude upon the complainant’s interest in solitude or seclusion, in a way that was highly offensive?

[29]  The footage of the complainant’s home that was featured in these broadcasts included only what would be visible to members of the public as they approached the property. The Authority has previously found that this would not be sufficient to find that a broadcaster intentionally intruded upon an individual’s interest in solitude or seclusion.[8] We therefore find no breach of this guideline under the privacy standard.

[30]  As we have found no breach of privacy occurred here, we are not required to consider whether any defences are available to the broadcaster.

Name suppression

[31]  As we have noted above, due to the nature and circumstances of this complaint, we have suppressed the complainant’s name and other identifying details in our decision.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

18 July 2019           

Appendix

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

1                 DV’s direct privacy complaint – 12 and 17 April 2019

2                 MediaWorks’ response to the complaint – 22 May 2019

3                 DV’s further comments – 23 May 2019

4                 MediaWorks’ confirmation of no further comment – 24 May 2019

5                 DV’s final comments – 28 May 2019

¹ Guidelines 10a and 10b
² Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61 at 9.1
³ Above, at 9.2
⁴ Guidance: Privacy, 2.1, Broadcasting Standards in New Zealand Codebook, page 59
⁵ QS and Television New Zealand Ltd, Decision No. 2014-42, at [8], citing South Pacific Pictures Ltd and RadioWorks Ltd, Decision No. 2008-017
⁶ HC CIV-2007-485-001609, 18 December 2008, citing TV3 Network Services v BSA [1995] 2 NZLR 720 at 732
⁷ QS and Television New Zealand Ltd, above at [9]
⁸ JNJ Management and RNZ, Decision No. 2017-095 at [31]