BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on 1 News, broadcast on Christmas Eve in 2017, reported on fatal road crashes that had occurred during the holiday road toll period, including a crash involving the complainant’s husband. The item featured footage of the crashed vehicle, emergency services working, and a shot (from a considerable distance) of people as they watched. The Authority did not uphold the complaint, finding that the standard could not apply to the complainant’s deceased husband, and in addition, he and the complainant’s whanau were not identifiable in the footage, which is required under the privacy standard. While the Authority found that this item was framed in a respectful way and carried an important public safety message, it expressed its sympathy for the complainant and reiterated the need for sensitivity and care to be taken in reporting of this kind, to avoid any unintended harm being caused to those bereaved or grieving.

Not Upheld: Privacy

Introduction

[1]  An item on 1 News, broadcast on Christmas Eve in 2017, reported on fatal road crashes that had occurred during the holiday road toll period. The item focused on the story of a taxi driver who had died, and featured an interview with his widow and friends. The item also reported on the death of the complainant’s husband, with the reporter saying:

Three other families are grieving this Christmas. The passenger of this van died after rolling down a bank in [location] this morning. Loved ones watched as his body was recovered.

[2]  The item featured footage (filmed by 1 News) of the crashed vehicle, emergency services working, and a shot, from a considerable distance, of people as they watched.

[3]  A complaint was made directly to the Authority that this item breached the privacy of the complainant’s family. Given the nature of the complaint and the circumstances surrounding the broadcast, we have granted name suppression to the complainant and in this decision refer to her as ‘FV’.

[4]  FV said in her complaint that her whanau, featured in the footage, were grieving at the time and were not asked if they could be filmed. She also said her family was ‘hounded by reporters via [Facebook] and phone trying to get a story’. FV was also deeply impacted by footage of her husband’s body, being carried by emergency services, shown during the item.

[5]  The issue raised in this complaint is whether the broadcast breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[6]  The item was broadcast on 24 December 2017 on TVNZ 1 at 6pm. The members of the Authority have viewed a recording of the broadcast and have read the correspondence listed in the Appendix.

Did the broadcast breach the privacy of the complainant’s husband or whanau?

[7]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[8]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual(s) whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about the individual(s); and the disclosure must be considered highly offensive to an objective reasonable person.¹

The parties’ submissions

[9]  FV submitted:

• She and her family were greatly affected by seeing footage of the crash.
• No one had asked the whanau featured in the item whether they could be filmed.
• Following the item, she and her family received unwanted media contact.

[10]  TVNZ submitted that:

• Fatal car crashes were a matter of significant public importance, particularly in 2017 which had the highest road toll since 2009.²
• FV’s husband’s privacy was not breached as privacy complaints could only relate to natural living people, and he was also not identified in the footage.³
• The item and the footage were framed in a respectful, sensitive way.⁴
• The family were filmed briefly from a distance and were not identified.
• The story was widely reported in print and broadcast media.
• Material not broadcast could not be considered as part of the complaint.

Our analysis

[11]  For reasons which we set out below, we have not upheld this complaint as a breach of privacy.

[12]  Nevertheless we wish to express our sympathy for the complainant in this case. She has outlined in her complaint the harm caused to her and to her whanau as a result of this broadcast, and we understand the impact that this had, during a difficult time. We acknowledge that the footage used was confronting and particularly challenging for the complainant.

[13]  We consider that reporting of this nature is important due to the safety messages for the wider community (which we discuss further below). Having said this, we recognise that the unintended consequence of raising awareness among New Zealanders about matters of public safety is that, sometimes, those who are bereaved or grieving may find such reporting to be confronting and painful. For this reason, it is important that such stories are treated with sensitivity and care, with respect shown to those involved and to those who may be impacted by the story.

[14]  In this case, our view is that the item was treated in a duly respectful and sensitive way by the broadcaster, and no breach of privacy occurred. We do not think it was exploitative or gratuitous, and footage of emergency services carrying the body was brief and highlighted the gravity of the situation.

[15]  In relation to the complainant’s husband, we note that privacy complaints may only relate to living natural people,⁵ and as such, there can be no breach of his privacy. We nevertheless think that care was taken to ensure the complainant’s husband was not identified during the item (identification is required to find a breach of the privacy standard). He was referred to only as ‘the passenger’ and while brief footage of his body being carried on a stretcher was shown, he was covered. Other identifying details, such as the number plate on the vehicle, were not shown.

[16]  The complainant’s whanau were filmed briefly and from a considerable distance, and so we also do not consider that they were identified in the item. In any event, while whanau may have had a reasonable expectation of privacy here, as they were grieving and particularly vulnerable,⁶ they were filmed from a distance and in our view both the item and the footage were presented in a sensitive and respectful way.

[17]  The main focus of the item was the already high road toll for the beginning of the 2017 holiday period, which was an issue of public importance. The use of personal stories during the item served to draw the public’s attention to the issue and to indicate the risk of serious harm that may be caused on the roads.

[18]  In these circumstances, and having found the complainant’s husband and whanau were not identifiable in the item, we do not find any breach of privacy in this case. We have weighed the public interest in the item and the importance of the right to freedom of expression against the harm said to have been caused by the broadcast. We acknowledge the complainant’s submission that the broadcast of this footage, as well as her experiences with media during this time, were painful. However, ultimately we have found that the item was framed as sensitively as it could have been by the broadcaster, consistent with the privacy standard and guidelines.

[19]  While the complainant has raised legitimate issues in relation to broadcasters’ contact with those who are grieving or in particularly vulnerable circumstances, we are limited to assessing the complaint against the content that was actually broadcast.⁷ This means we are unable to make a finding on issues outside of the broadcast, including any attempts to contact the family.

Name suppression

[20]  As we have noted above, while we have not upheld the complaint in this instance, due to the nature and circumstances of this complaint, we have suppressed the parties’ names in our decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
18 April 2018  

Appendix

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

1      FV’s direct privacy complaint – 2 January 2018
2      TVNZ’s response to the complaint – 12 February 2018
3      FV’s further comments – 14 February 2018
4      TVNZ’s confirmation of no further comment – 16 February 2018

¹ Guidelines 10a and 10b

² TVNZ cited the decision Andrews v TVNZ (15 December 2006, HC Auckland, CIV-2004-303-3536, at [91]-[92]) in which Allan J found that the programme, Fire Fighters, while providing a level of entertainment, also had a ‘serious underlying purpose’, informing viewers about the public cost of road accidents which attracted significant public concern.

³ Citing Stranaghan and Television New Zealand Ltd, Decision No. 2017-033 at [14], in which the body of a German hostage, who was beheaded by militants in the Philippines, was said to be unidentifiable when in a body bag.

⁴ Citing YT and Television New Zealand Ltd, Decision No. 2013-011

⁵ Privacy Act 1993, see also 1.2, Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁶ See the exceptional circumstances, where a person may still have a reasonable expectation of privacy in a public place, set out at 3.3 in Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁷ See YT and Television New Zealand Ltd,cited above at [5]