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 complaint that an episode of Highway Cops breached the privacy standard. A segment of the programme focused on a car accident in which the complainant was the victim. It included blurred shots of them being treated on a stretcher post-accident, as well as brief CCTV footage of the accident occurring and the complainant exiting their car and dropping to their hands and knees on the road. The Authority acknowledged the accident was a traumatic event for the complainant, and the impact having the footage aired on national television without their consent had on them. However, applying the relevant guidelines under the privacy standard, it found disclosure of the particular footage in the broadcast was not of a ‘highly offensive’ nature, noting the brevity of the footage, the complainant was obscured/blurred or very difficult to make out in the footage and the complainant was not shown doing anything an objective reasonable person would find embarrassing or that would impact on their reputation.

Not Upheld: Privacy

The broadcast

[1]  An episode of Highway Cops aired at 7.30pm on TVNZ 1 on 24 June 2024.

[2]  The production company, Greenstone TV, describes the show as:¹

New Zealand’s highways: 11,000 kilometres of some of the most spectacular and unforgiving roads on the planet. Over 1,000 dedicated road safety staff are tasked with keeping our highways and byways safe. It’s a job that brings its own perils… and rewards.
The encounters and adventures unfold against the spectacular backdrop that is the natural beauty of Aotearoa, New Zealand. The officers of the New Zealand Police highway teams couldn’t ask for a better office.

[3]  A segment of the 24 June episode followed a Senior Constable who attended a car crash at an intersection. It followed the constable as he travelled to the crash, spoke to witnesses, marked the position of the vehicles and investigated what had happened.

[4]  The region where the crash occurred and the approximate time of day was specified in the broadcast, and a witness identified the name of the road one of the cars was travelling on.

[5] The complainant was the victim in this crash. They were not named in the broadcast. There were brief shots of them on a stretcher on the ground surrounded by ambulance staff where only their jeans and shoes were partially visible. There was a shot of them on a raised stretcher being loaded into the ambulance. In this shot their head was blurred but the colour of their skin, hair, top and wristwatch could be seen. The number plate of their vehicle was blurred.

[6]  The programme also showed CCTV footage of the crash twice, showing the complainant’s car travelling straight and a ute turning directly into their path. The two vehicles collide, and the complainant can be seen (from a distance, with only the colour of their skin and clothes able to be made out) getting out of the car and dropping to their hands and knees on the road.

[7]  After interviewing the driver of the ute, the constable said the driver had suggested the complainant was going too fast. However, after viewing the CCTV footage, he stated it is ‘very, very clear cut’ that the complainant was ‘quite innocently travelling in the northerly direction’ and ‘hasn’t come from there at speed’ before the ute turned into their path.

[8]  One of the vehicles had flipped and spilled raw chicken fillets all over the road, which the narrator and police made ongoing references to:

• Narrator: ‘Today, Senior Constable … is having a pleasant day on the rural highways and byways. But is he counting his chickens before they've hatched?’
• Policeman 2: ‘Free chicken.’
• Narrator: ‘It’s enough to put you off your lunch. Carefully dodging the free-range fillets, [Senior Constable] gets on with recording the scene for later reference.’
• Narrator: ‘His front row seat from the silver car has raised some doubt about how the T-Bone and chicken lunch went so wrong.’
• Senior Constable: ‘Somebody’s winner winner chicken dinner won’t be chicken dinner tonight.’
• Narrator: ‘On the menu we have a T-Bone and a large order of chicken fillets.’
• Narrator: ‘It's time to find out why the chicken crossed the road.’
• Narrator: ‘With three slightly different versions of events, there's a lot to chew over.’
• Narrator: ‘With the mystery of the chicken crash solved, the ute is flipped like a burger. And it's time to doggy bag the messy leftovers.’

The complaint

[9]  The complainant considered the broadcast breached their privacy, on the basis footage of the car accident they were involved in and the moments after, which were ‘disturbing and terrifying’ for them personally, were broadcast on national television without their consent or knowledge. They further explained:

Impact of crash

• The crash was highly traumatic, as the car started smoking and they thought they might be trapped. They were in shock but managed to exit the vehicle before collapsing.
• The crash had a ‘hugely negative’ impact on their life, and they required months of intensive physiotherapy as well as other ongoing medical treatment.
• They were ‘only feeling like things were getting back on track when an advertisement popped up on TV one evening showing a short clip of my accident, which my children also saw.’ This ‘brought everything back’.

Identification

• The complainant became aware the ‘entire crash’ had been broadcast, including them collapsing on the ground to being put on a stretcher, when their phone ‘blew up’ immediately following the broadcast. They advised they were ‘contacted via social media by people I have not had contact with in many years who had heard about my accident and then recognised it on TV. Being in a small town and many people knowing I was involved in the crash, I was then easily identified by those outside of my family and close friends. My [child] was approached by a group of children at the bus stop …saying they had seen [their] crash last night, I do not know the parents of these children.’
• ‘I strongly disagree with the [broadcaster’s] conclusion that it was not possible for me to be identified from the material included in the broadcast by anyone who did not already know me; The intersection where the crash occurred is on a major highway, and the accident took place [approximate time]. The incident was witnessed by many people and quickly became the talk of our small town and the neighbouring one. In a close-knit community, news like this spreads rapidly, and even those who did not know me personally would have been aware of the crash and could easily have connected the dots when seeing the footage on television.’
• ‘While the broadcaster stated that I was pixelated in the CCTV footage, there were clear shots of me outside the car on my hands and knees that were not pixelated. These unblurred scenes made it easy for others to identify me and I feel humiliated by being shown in such a vulnerable state.’
• ‘The reality of living in a small community means that identity is not solely dependent on a visible face. The location of the crash, the details of the incident, and the context provided in the footage were more than enough for people in my community to identify me, even without my face being shown.’

No consent to use footage

• The complainant was not aware the CCTV footage was going to be aired until they saw the promo. After seeing it they approached the local roading police, as the footage was taken from a community camera used by local police. The police contacted the production company, but advised the complainant the production company ‘refused to inform [the roading police] who had given them permission [to use the footage]’. By that time the show was already prepared for broadcast, and there was no further opportunity to address this with the production company.
• The Road Policing Manager informed them ‘police access the footage for investigations and cannot give it out for public use without significant permissions’.
• The complainant strongly disagreed their consent to use this footage was not required on the basis their identity was not revealed – for the reasons above, they considered they were identifiable.

Public interest

• While they understood Highway Cops aimed to deliver road safety messaging, they did not consider this justified the violation of their privacy.

Other

• The breach of privacy was exacerbated by:
  • The programme airing footage of the driver at fault saying the complainant was speeding when they were not.
  • Jokes made about chicken breasts on the pavement which ‘confirms that my accident has been used for entertainment purposes with no regard given to the distress it has further caused me’.

The broadcaster’s response

[10]  While acknowledging the crash was traumatising for the complainant, and revisiting the event had been upsetting for them, TVNZ did not consider the broadcast breached the complainant’s privacy. In responding to the complaint, it consulted with the production company that produced the programme. TVNZ stated:

Identification

• The complainant was not named or visually identified in the story.
• ‘In the small number of shots in which emergency personnel and members of the public attend to [the complainant], [they are] comprehensively obscured or digitally pixelated.’
• ‘[The complainant] is also not identifiable in the CCTV footage of the crash, owing to the distance at which the footage is taken and the low resolution of the camera.’
• ‘[The complainant’s vehicle], is shown in numerous shots. The vehicle’s front number plate is not attached, presumably having fallen off in the crash, and the rear number plate is comprehensively blurred.’
• ‘As [the complainant] says in [their] complaint, people who already knew about [them] being in the crash contacted [them] after watching the programme… Someone who did not have prior knowledge of [their] crash would not have realised that was [them] in the programme.’
• ‘In summary, [TVNZ] is of the view that it was not possible for [the complainant] to have been identified from the material included in the broadcast by anyone who did not already know [them] and who could reasonably be expected to have known about the matter dealt with in the broadcast.’

How the CCTV footage was obtained

• The production company advised ‘The CCTV footage belongs to the […] District Council and a council community group. We have written permission to use it in the programme.’
• ‘We believe the council do share their footage with Police for their own investigations, but Police do not own that camera or footage. The owners of the camera and footage (as noted above) have the right to allow us to use it. The road policing manager is wrong in his assumption.’

Consent to film

• As the complainant was not identified in the broadcast, there was no need to obtain their consent to film at the scene or to use the CCTV footage.
• The complainant had knowledge the programme was going to air with their story in it: ‘[The complainant] had approached NZ Police later and via them we had informed [them] the footage was in the programme and [they were] blurred.’
• ‘At the time of filming we don’t approach victims who are receiving medical treatment to discuss consent. We assume no consent and automatically blur to protect identity.’

Public interest

• The production company advised: ‘…the point of the use of footage is to make the road safety messaging clearer and more effective.’ ‘When showing a crash in the programme Highway Cops must weigh up the benefits of the road safety messaging with the impact on the victim. We were informed that [the complainant] suffered minor injuries – whiplash.’
• The story highlighted and reinforced the dangers of driver inattention and the personal and public cost of road accidents.
• ‘The story had added public interest due to its potential to directly influence decision making in respect to road safety at the intersection where the crash occurred. The production company has advised [TVNZ] that [District Council and Police] were very happy about the timing [of the broadcast], as they are currently trying to get NZTA to assess safety improvements for that intersection.’

Other

• ‘The claim by the driver of the ute that [the complainant] had been speeding was immediately discredited by the traffic camera footage and was summarily dismissed by Senior Constable… The story absolved [the complainant] of any responsibility for the accident.’
• ‘The story contained light-hearted comments by Senior Constable … and the programme’s narrator regarding the ute’s cargo of chicken breasts, some of which had been strewn across the road in the crash. These comments were not intended to trivialise the seriousness of the crash, or the trauma experienced by those involved. They were simply observations about an unusual and noteworthy aspect of the crash scene.’

The standard

[11]  The privacy standard² states broadcasters should maintain standards consistent with the privacy of the individual. It aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.³ It seeks to protect their dignity, autonomy, mental wellbeing and reputation, away from the glare of publicity. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest.⁴

Our analysis

[12]  We have watched the broadcast and read the correspondence listed in the Appendix.

[13]  The right to freedom of expression is our starting point when we consider a complaint. It is our role to weigh up the right to freedom of expression, and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the level of harm means placing a limit on the right to freedom of expression is reasonable and justified.⁵

[14]  We recognise the harm caused to the complainant as a result of the broadcast. The car accident that was the subject of the Highway Cops segment was clearly a traumatic event for them, and they have advised having it broadcast on national television was detrimental to their recovery. They have described the shock and distress they experienced viewing the promo for the programme (with their children) without warning, and then learning the CCTV footage of the accident had been shown after the programme aired.

[15]  However, applying the relevant guidelines under the privacy standard, ultimately, we have found the complainant’s privacy was not breached by showing the particular footage in the broadcast. As a result, we have not found a level of harm justifying restricting the broadcaster’s freedom of expression.

[16]  We expand on our reasons below.

Criteria for breach of privacy

[17]  Under the privacy standard, broadcasters should not disclose private information or material about an individual in a way that is highly offensive to an objective reasonable person in the position of the person affected.⁶

[18]  There are typically three criteria for finding a breach of privacy:

• The individual whose privacy has allegedly been interfered with was identifiable.⁷
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁸ 
• The disclosure would be considered highly offensive to an objective reasonable person.⁹

Identification

[19]  Applying the criteria above, we first considered whether the complainant was identifiable from the broadcast. In assessing whether an individual is identifiable, the following considerations apply:¹⁰

• Individuals must be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.
• A combination of information in the broadcast and other readily and publicly available material may enable identification for the purposes of this standard (‘jigsaw identification’).
• An individual may be identifiable even if they are not named or shown or their identity is partially masked.

[20]  An individual may also be identifiable even if only a small number of people could recognise them from the information provided, if not all of those people were aware of the full details disclosed in the broadcast.¹¹

[21]  We accept the broadcaster’s submissions that efforts were made to avoid identification of the complainant, noting:

• The complainant was not named.
• In the shots of them being attended to by ambulance staff, their face was blurred with little identifying information able to be perceived.
• The number plate of their vehicle was blurred.
• The CCTV footage was taken from a considerable distance and had a grainy resolution.
• The complainant has advised that family, close friends and people within their community and the neighbouring one were already aware of the circumstances of the crash.

[22]  However, looking at the question of whether even a small number of people could recognise the complainant from the information provided, if not all of those people were aware of the full details disclosed in the broadcast, we note:

• The approximate location of the crash was specified. There were also shots showing all the intersection street signs and part of a hotel opposite the crash site.
• The approximate time of day of the crash was specified.
• The specific circumstances of the crash were unique – the ute turned directly into the path of the complainant’s car.

[23]  Given the specific circumstances of the crash, and the complainant’s advice that the circumstances of the crash were widely known in their residential vicinity, we consider this may have led to identification of the complainant by people such as friends and family members, as well as wider members of the community, who were not aware of ‘the full details’ disclosed in the broadcast. Many of these people would not have seen the complainant in the vulnerable states depicted (ie lying on the road being tended to by paramedics, being loaded into the stretcher) or viewed the CCTV footage of the crash which showed them dropping to their knees on exiting the car (although some may have witnessed it at the time).

[24]  The complainant has also advised they were in fact identified and contacted by people they had ‘not had contact with in many years,’ as well as people within their community outside of their family and friends.

[25]  While efforts were made to conceal the complainant’s identity, and it is apparent many people in the complainant’s residential vicinity were already aware of the accident, on balance we consider it was still possible some people who were not aware of all of the information disclosed could have identified the complainant from the combination of details.

[26]  We therefore proceed on the basis the complainant was identifiable in the broadcast for the purpose of the standard.

Reasonable expectation of privacy

[27]  The next question is whether the broadcast disclosed private information or material about the complainant, over which they had a reasonable expectation of privacy.

[28]  The complainant has raised concerns about two types of footage shown in the broadcast – the shots of them on a stretcher/while being treated and the CCTV footage.

[29]  Factors relevant to whether there is a reasonable expectation of privacy in relation to the content disclosed include, but are not limited to:¹²

• whether the content is in the public domain
• whether the content is intimate, sensitive or traumatic in nature
• whether the individual could reasonably expect the content would not be disclosed
• the nature of the individual.

[30]  While a person will not usually have a reasonable expectation of privacy in a public place (ie one generally accessible to, and/or in view of, the public) such an expectation may exist where it is objectively obvious from the circumstances that the individual is particularly vulnerable.¹³ For example, vulnerability may be higher for:

• people caught up in emergencies
• accident victims
• those suffering a personal tragedy or bereavement.

[31]  In relation to the shots of the complainant on a stretcher/while being treated, we consider the complainant did have a reasonable expectation of privacy in these shots because:

• While the shots were filmed in a public place, it was objectively obvious from the circumstances the complainant was particularly vulnerable at the time, being treated by ambulance staff and loaded into an ambulance directly after being involved in a serious car accident.
• The content showed the complainant during a traumatic moment.
• The complainant advised they were in shock at the time.
• The complainant could reasonably expect these shots would not be broadcast on national television.

[32]  Similarly, we consider the complainant had a reasonable expectation of privacy in relation to the CCTV footage. Although there were many witnesses to the crash at the time, the complainant would not reasonably anticipate the CCTV footage – showing them dropping to their knees apparently in a state of distress and shock – would be broadcast on national television. 

Was the disclosure highly offensive?

[33]  The final question under the standard is whether the disclosure of these two types of footage would be considered highly offensive to an objective reasonable person in the position of the person affected.

[34]  Factors relevant to determining whether disclosure of private information is highly offensive include, but are not limited to:¹⁴

• whether the content is particularly embarrassing or has the potential to impact negatively on reputation
• whether the individual is particularly vulnerable
• the seriousness of the circumstances (eg the means by which the information was gathered, whether the broadcast was exploitative or gratuitous)
• whether the individual has made efforts to protect their privacy or has not consented to the broadcast.

[35]  In respect of the shots of the complainant on a stretcher/while being treated, while acknowledging the complainant was in a vulnerable state at the time and did not consent to the filming of or use of these shots in the broadcast, in our view disclosure of these shots would not be considered highly offensive to an objective reasonable person because:

• The complainant’s face was not visible in any of the shots.
• The shots were fleeting, and the complainant was obscured/blurred.
• The shots did not show the complainant in obvious distress or with obvious injuries.
• Vulnerability could be inferred from the circumstances but its impact on the complainant was not obvious (given their face was obscured).
• The shots were filmed at a respectful distance, and did not amount to interference in the complainant’s solitude and seclusion/prying.¹⁵

[36]  In relation to the CCTV footage of the crash, while more finely balanced, we do not consider the nature of its disclosure in the broadcast would have been highly offensive to an objective reasonable person in the complainant’s position, because:

• The footage was taken from a considerable distance and had a grainy resolution. The complainant was not blurred but due to the distance and resolution only the colour of their skin and clothing could be made out.
• The footage was shown twice but very briefly – 15 seconds each time.
• The complainant can be seen, fleetingly, post-impact getting out of the car and dropping to their knees, apparently in a state of shock and distress. They are not shown doing anything an objective reasonable person would find embarrassing or that would impact on their reputation.
• While the complainant did not consent to the footage being used in the programme and was not informed about it being used (until by chance seeing a promo for the programme), the crash occurred in a public place and the broadcaster has advised it had written permission to use the footage from the owners of the camera and footage.
• The use of the brief footage was not gratuitous and was impactful in showing exactly how the accident happened. It contributed to the programme’s road safety messaging and was likely to encourage the audience to exercise more caution on the roads, especially when turning at busy intersections.

[37]  The complainant also said they found the juxtaposition of footage of their accident with light-hearted remarks about strewn chicken fillets offensive, as well as inclusion of comment from the offending driver who tried to claim the complainant had been speeding. We acknowledge the complainant’s concerns but note the jokes about chicken fillets were directed at an unusual aspect of the crash, rather than at the complainant’s expense, and the broadcast made clear the complainant was not at fault in any way. Overall, we consider the complainant’s treatment in the broadcast was duly sensitive and non-intrusive.

[38]  In relation to the complainant’s concerns they were not informed the footage would be airing and did not consent, we note we do not agree with the broadcaster’s submission that they ‘advised’ the complainant in advance via the complainant’s own enquiries to the roading police. However, such advice and prior consent are not requirements under the privacy standard. 

[39]  For the reasons above, we find the broadcast’s disclosure of the two types of footage does not meet the threshold to be considered highly offensive to an objective reasonable person in the position of the person affected.

[40]  As this third criteria of the privacy standard is not met, we find the broadcast did not breach the privacy standard. 

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

Signed for and on behalf of the Authority

Susie Staley
Chair
14 October 2024    

Appendix

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

1  FD’s direct privacy complaint to the Authority – 25 June 2024

2  TVNZ’s response to complaint – 26 July 2024

3  FD’s further comments – 26 August 2024

4  TVNZ’s final comments – 9 September 2024

¹ Greenstone “Highway Cops” <www.greenstonetv.com>
² Standard 7, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at page 19
⁴ Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at page 19
⁵ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁶ Guideline 7.3
⁷ Guideline 7.2
⁸ Guidelines 7.4, 7.5 and 7.6
⁹ Guidelines 7.3 and 7.8
¹⁰ Guideline 7.2
¹¹ NH and Radio Virsa, Decision No. 2020-164, SW and Television New Zealand Ltd, Decision No. 2015-030; JN and MediaWorks Radio Ltd, Decision No. 2017-053; BL and MediaWorks Radio Ltd, Decision No. 2017-025; Seven Complainants and Radio New Zealand Ltd, Decision No. 2021-090 at [45]
¹² Guideline 7.4
¹³ Guideline 7.6
¹⁴ Guideline 7.8
¹⁵ For a similar finding, see Smyth and Television New Zealand Ltd, Decision No. 2010-059 at paras [28]-[29]