BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

Seven Sharp featured a brief segment about a Christchurch couple who had been recorded by members of the public having sex after hours at their workplace. The segment was presented as a humorous 'lessons learned' skit, featuring comments such as, 'apparently you can see through glass', and still photos of the incident were shown. The Authority did not uphold a complaint that the broadcast breached the couple's privacy as the information was already in the public domain at the time of broadcast.

Not Upheld: Privacy

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Introduction

[1]  Seven Sharp featured a brief segment about a Christchurch couple who had been recorded by members of the public having sex after hours at their workplace. The segment was presented as a humorous 'lessons learned' skit, featuring comments such as, 'apparently you can see through glass', and still photos of the incident were shown.

[2]  Ann Elborn complained that the broadcast breached the couple's privacy.

[3]  The issue is whether the broadcast breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on TV ONE on 3 February 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach the couple's privacy?

[5]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[6]  Privacy principle 1 of the Authority's privacy principles says that 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. Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under this principle: the individual(s) whose privacy has allegedly been interfered with must be identifiable; the broadcast has disclosed private facts about that individual; and the disclosure would be considered highly offensive to an objective reasonable person.¹

[7]  Ms Elborn argued that the couple's privacy was breached 'as they will clearly be identified by workmates and people associated with the company, plus family, friends and associates'. She believed no 'objective reasonable person' would want footage or photos of themselves having sex to be broadcast without their knowledge.

[8]  TVNZ argued that as unedited footage of the couple was 'in the public realm and had been commented on and reported both within New Zealand and internationally', no private facts were disclosed. It also noted a media statement from the Office of the Privacy Commissioner saying the couple had not '[taken] steps to ensure their privacy' and it was unlikely they had a reasonable expectation of privacy in the circumstances.²

[9]  The first question for us is whether the two individuals featured were identifiable. Although TVNZ took steps to 'blur out' the couple's faces and they were not named, their workplace was named and viewers could see other identifying features in the photos, such as their clothing and hair. We therefore find they were identifiable.

[10]  The next question is whether any private facts or information were disclosed about the couple. By the time the Seven Sharp segment aired, the incident and the images of the couple had already been widely disseminated across multiple media outlets. The images were in the public domain and therefore did not amount to 'private facts' in the context of this broadcast.

[11]  Accordingly, we decline to uphold the complaint that the couple's privacy was breached. We remind broadcasters, however, to exercise caution when re-broadcasting material that may be distressing to individuals involved, even where that information is publicly available.³

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

Signed for and on behalf of the Authority

Peter Radich
Chair
16 June 2015

Appendix

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

1      Ann Elborn's formal complaint – 9 February 2015
2      TVNZ's response to the complaint – 9 March 2015
3      Ms Elborn's referral to the Authority – 9 March 2015
4      TVNZ's response to the Authority – 21 April 2015

¹ Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)

² ‘Office sex romp couple won’t be able to sue for breach of privacy’, New Zealand Herald, 3 February 2015

³ See, for example, Middleton and Television New Zealand Ltd, Decision No. 2013-040