BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

Campbell Live reported on a couple who faced bankruptcy after buying a house infested with termites. The item disclosed the names of the vendor, the company and staff responsible for the building report, and the real estate agent. It showed footage of the real estate agent’s office window, which had printed on it the names and phone numbers of the real estate agent and his business partner. A majority of the Authority did not uphold complaints that this breached the agent’s and the business partner’s privacy. The agents’ details were publicly available, the footage of their phone numbers was brief and it was not broadcast for the purpose of encouraging harassment; no causal link was demonstrated between the broadcast and the alleged harassment. The minority found that the disclosure of the phone numbers was negligent and that harassment was a foreseeable consequence.

Not Upheld by Majority: Privacy

 Introduction

[1] Campbell Live reported on the plight of a Waikato couple who faced bankruptcy after buying a house infested with termites. The item was introduced as follows:

...just before Christmas the young Waikato couple bought their first home. They were given a so-called 'building report' by the... real estate agent – a man they believed they could trust – but it somehow missed a very, very big problem: termites. An infestation so big the house will have to be demolished, but [the couple] are mortgaged to the hilt, and neither [the real estate agency] or the vendor are offering them any help. We think this situation is outrageous. [Reporter's name] with this story of [the couple] and the termites a building report somehow missed.

[2] The item disclosed the names of the vendor, the company and staff responsible for the building report, and the real estate agent. It showed footage of the real estate agent's office window, filmed from a public street. This had printed on it the names and phone numbers of the real estate agent and his business partner, and affixed to it the agent's business card. The item was broadcast on 27 February 2014 on TV3.

[3] Casie Heron and Anna McLoughlin made direct privacy complaints to this Authority, arguing that the broadcast breached the privacy of the real estate agent and his business partner by disclosing their names and telephone numbers.

[4] The issue is whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5] 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 any individual's privacy?

[6] 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, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[7] When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been 'identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast'.¹

[8]  As the real estate agent and his business partner were named in the programme, as was their franchise business and the small town where they provided services, we are satisfied that they were identifiable.

[9] The next step is to consider whether any of the Authority's Privacy Principles, set out in Appendix 1 to the Code, were breached. The complainants considered that principles 1 and 4 were relevant. Privacy principle 1 protects against the public disclosure of private facts. Privacy principle 4 protects against the disclosure, without consent, of the name and/or address and/or telephone number of an identifiable individual. In both cases, the disclosure must be highly offensive to an objective reasonable person.

[10] Looking first at privacy principle 1, we note that the information disclosed in the programme – that is, the names and telephone numbers of the real estate agent and his business partner – was publicly available. The very nature of their business meant their details were purposefully in the public domain. They were printed on the office window, located on a public street, and were presumably advertised by other means, for example on the internet.

[11] The focus of our determination therefore, is whether the disclosure breached privacy principle 4. Under this principle, it is not the mere disclosure of an individual's name, address or telephone number that will amount to a breach of the principle; the breach must be highly offensive to an objective, reasonable person. We have previously found that where a person's details are published for the purpose of encouraging harassment of that person by members of the public this would be highly offensive to an objective reasonable person.²

[12] Ms Heron stated, 'The showing of contact details onscreen for an obvious and long period of time is clearly encouraging viewers to use them... in a highly negative fashion'. The complainants asserted that the real estate agent had been subject to abuse by text message and on Facebook, resulting in psychological, reputational and financial harm.

[13] The item contained three shots of the franchise office window. Two shots showed the real estate agent's and his business partner's names printed on the window alongside their business telephone numbers (and their business cards which were out of focus). The telephone numbers did not include the location prefix. In the first shot, the angle meant the last digit of the real estate agent's telephone number was not visible, but his business partner's number was shown in full. In the second shot, the angle meant only a few digits of their numbers were visible.

[14] The programme also contained footage which focused directly on the real estate agent's business card, affixed to the window. It was visible onscreen for approximately one second. The card contained his photograph, business address, four different telephone numbers including their prefixes, email address, and web address. The telephone numbers were adequately discernable for use, while the other details were out of focus.

[15] Having found that the programme revealed the names and telephone numbers of the real estate agent and his business partner, we part company in our application of principle 4 to the particular circumstances of this complaint. Specifically, we have differing views as to whether the disclosure would be considered highly offensive to an objective reasonable person.

Majority View (Peter Radich, Leigh Pearson and Te Raumawhitu Kupenga)

[16] An essential ingredient for finding a breach of principle 4 is that the disclosure must highly offensive to an objective reasonable person. This is a high threshold. It is reached where a broadcaster deliberately releases the name, address or telephone number of an identifiable individual so as to encourage others to attack or harass that individual. In very special and limited circumstances (see NJ and Apna Networks Ltd³) we found that a careless release of information which results in harassment was highly offensive. The facts of that case were unique and sensitive.

[17] For the reasons expressed below, we the majority, find that the disclosure of the real estate agents' telephone numbers was not highly offensive. In summary, we are unable to establish a causal link between the very brief broadcast of the real estate agents' telephone numbers with the alleged harassment.

[18] The footage showed only brief glimpses of the real estate agents' names and telephone numbers. For viewers to have been able to make use of this information it would have been necessary to pause, rewind and record the details. Any person motivated to do this is just as likely to have ascertained their details by other means. It is easy to make contact with people in New Zealand when they have their identities in the public arena, as real estate agents do. Therefore, it would have been easy for viewers to make contact, regardless of whether their telephone numbers were broadcast. Once a real estate agent's name and location is known, obtaining their telephone number is a very easy step.

[19] We do not think that it can be seriously suggested that the disclosure, in a programme of this kind, of the real estate agents' names and locality amounted to a breach of broadcasting standards. In our view this would not be highly offensive to an objective reasonable person. Then, as we say, once the identities are known, the next steps towards making contact are easy. Those who are so minded to undertake harassment are not likely to be deterred by having to take a few further steps to find a telephone number.

[20] Further, we have no evidence to show that those who harassed the real estate agents by telephone did so by using the briefly displayed numbers. Where a professional person in a small town is involved in this type of situation, it is inevitable they will attract some criticism and unwanted attention. Their identities may be exposed through word of mouth or other means. We cannot infer that the harassment was a direct result of the broadcast.

[21] We consider that the brief publication of these numbers was an incidental part of the story. The numbers were included in a public advertising display on the shop window. We have no cause to find that the numbers were published for the purposes of encouraging harassment. Standing back and looking at the overall programme we cannot find that the broadcast of these brief images would be highly offensive to an objective reasonable person. In this case, we think that the consequences of harassment which the real estate agents suffered came about through their known involvement in this unfortunate house sale.

[22] While we encourage broadcasters to exercise caution to protect the contact details of individuals referred to in programmes, especially where they are the subject of criticism, in these circumstances, we find that the disclosure was not highly offensive and we decline to uphold the complaints.

[23] As noted above, principle 4 was developed to prevent the broadcast of a person's details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public.⁴ Ms Heron has pointed to a previous decision where we extended the principle, in the circumstances of that particular complaint, to include situations where harassment resulted from negligent or careless disclosure of an individual's phone number.

[24] In response to Ms Heron's argument, and to the minority view, we record our view that NJ and Apna Networks Ltd where we extended the application of principle 4,⁵ can be distinguished from the present case. Our finding of negligence in that case, resulted from the following factors:

• the complainant's mobile number was provided to the station, for the purpose of disclosing it, in a personal ads segment;
• the mobile number was disclosed with the intention that it would be used and people would contact the complainant, wanting to be matched up with him;
• the 'negligence' arose because it was not the complainant who provided his mobile number to the station, and the station did not check with the complainant that he did actually want his mobile number disclosed;
• it was a 'foreseeable circumstance' that the disclosure would result in harassment, because the whole purpose of the programme – being a personal ads segment – was to elicit responses.

[25] It was in those particular circumstances, that we thought the principle should extend to include situations where harassment has resulted from the 'careless or negligent actions' of the broadcaster. The decision states at the outset that the principle required elaboration when applying it to 'this situation'. The facts in this case are very different.

Minority View (Mary Anne Shanahan)

[26]           The complainants argued that as a result of this broadcast the real estate agent and his wife were harassed including on their home telephone number. Privacy principle 4 states, 'The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person'.

[27] The Authority's practice note on privacy principle 4 indicates that it was developed to prevent the broadcast of a person's details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public.⁶ Whilst this explains the derivation of the principle, it is the privacy principle as formulated above that is to be applied. In my view, the key objective remains the protection of individuals from actual harm arising from the broadcast of such details.

[28] In this item telephone details of the agent, including his home phone number, were broadcast without consent. Was, then, the disclosure highly offensive to an objective reasonable person?

[29] The privacy principle uses the tort formulation taken initially from the United States privacy tort jurisprudence and adopted by the New Zealand courts. The disclosure of facts about the individual must be highly offensive to an objective reasonable person. In Hosking v Runting,⁷ the court of appeal considered this requirement. The court pointed out that the test 'relates to the publicity'. 'It is not part of the test of whether the information is private'.⁸ 'The harm to be protected against is in the nature of humiliation and distress'.⁹ This is an objective test of what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the real estate agent and faced with the same publicity.¹⁰

[30] Here Ms Heron specifically complained that the telephone numbers broadcast included 'a telephone number that is also [the real estate agent's] home number. Consequently [the real estate agent] [was, following the broadcast] subjected to harassment, bullying and verbal abuse from many complete strangers at [his] home'. We are told that actual harm resulted and that that harm can be attributed in whole, or in part, to the broadcast. Fundamentally, the principle is directed to preventing such disclosures. It is to prevent 'potential harassment or physical threats at' one's 'place of residence'.¹¹

[31] In the broadcast before us the item paired the real estate agent and his telephone numbers with this negative story. In the item the agent's business, mobile and home phone numbers were clearly shown on his business card. The details were shown for long enough, and clearly enough, for a viewer to realise the phone number was there and to pause to write it down. I do not agree that we can ignore the reality of the various ways that programmes are now viewed on TV, including recording, pause and rewind functions.

[32] That the real estate agent's business details could have easily been obtained from a number of other publicly available sources is not in my view determinative of the complaint. In Spring and The Radio Network Ltd,¹² the Authority found a breach when a radio host told listeners where they could find the complainant's listing in the White Pages inviting listeners to 'send something to him'. The phone number was not broadcast but listeners were referred to the relevant page in the white pages.

[33] We were told this agent worked in a small town of some 3,500 people. No doubt he was well-known in that town. However, as Ms McLoughlin pointed out, Campbell Live disclosed these details to a national audience of four million people. National viewers were unlikely to know this agent, receive his business card, or ever pass his shop front. My online search of the agent's name revealed the agent's mobile number and workplace numbers but not his home telephone number. That number could be accessed through a White Pages search. Viewers could have harassed the agent after an online search or after visiting the shop front. However, notwithstanding the availability of this information in the public sphere (as in Spring), the purpose of principle 4 is to prohibit the broadcaster from disclosing this information in circumstances where harm may result.

[34] I acknowledge, as did the complainants, that whilst the telephone numbers were shown three times, there were no accompanying words encouraging viewers to contact the agent and harass him, though that was reported as the result. However, the Authority has in the past extended the principle to cover situations where the disclosure results in the harassment of an individual, due to the careless or negligent actions of a broadcaster.[13] Ms Heron specifically raised the issue of careless or negligent disclosure in her submissions. The question arises, what was the likely outcome of broadcasting these details three times in conjunction with this adverse story?

[35] In NJ and Apna Networks Ltd,¹⁴ the broadcaster disclosed the complainant's telephone number, without his permission, within a matchmaking programme which was designed specifically for the purpose of eliciting responses. The Authority upheld a breach of principle 4 on the basis that although the disclosure of the telephone number was not intended to result in harassment, harassment occurred as a foreseeable consequence of the broadcaster's carelessness. I acknowledge this case can be distinguished as containing encouragement to phone the complainant (which is absent here). However, I cite it for the extension of privacy principle 4 to negligent disclosure; that is, harassment occurred as a foreseeable consequence of the broadcaster's carelessness.

[36] This case can be distinguished from The Order of St John and TVWorks Ltd,¹⁵ where the full name, occupation and signature of a St John paramedic who responded to a convicted murderer's medical emergency was found to be incidental and not for the purposes of harassment. However, the paramedic's details were incidental to the story and not paired with adverse information about him or his involvement.

[37] In my view, the broadcast before us resembles the case of NJ. The footage of the real estate agent's business card, and his partner's telephone number, was brief, but it was shown three times including the agent's after hours (home) phone number. Ms Heron acknowledges the information is publicly available but felt the 'deliberate disclosure was unnecessary, obvious and inappropriate'. She stated:

The broadcaster's reasoning that the perpetrators gained contact details from other sources, while valid is unlikely. I believe that the viewers were handed the contact details on a plate and the sheer number of abusive communications reflects this. I believe that if the broadcaster had not facilitated this abuse, it is unlikely that so many people would have taken the initiative to search for the contact details. Campbell Live made this easy for viewers.

[38] Here, the connection of this agent and his telephone numbers to this story was very clear and adverse to the agent. I accept the complainant's assertion that the abuse, or at least some of it, that occurred immediately after the broadcast can be casually linked to the broadcast and the disclosure of the telephone numbers. The broadcaster may not have intended that the disclosure of the telephone number would result in harassment, but harassment occurred as a foreseeable consequence of the broadcast. I appreciate that this might be seen as an elaboration or refinement of the Authority's decision in NJ, but such is intimated in Appendix 2 of the Code.

[39] The complaints are appropriately limited to privacy principle 4.The story itself was clearly in the public interest. There can be no objection to the fact that the agent was named in the story. The issue is only with the broadcast of the telephone numbers, in particular the home phone number. Authority members are agreed that the footage was incidental to the item's focus, and was used as a visual accompaniment to the story. This is relevant in considering the broadcaster's right to freedom of expression. I consider a restriction on the projection of such incidental visual accompaniment a minimal interference with the broadcaster's right to freedom of speech. That is particularly, when the restriction is to prevent harm such as abuse directed to the home. The broadcaster has much power to cause harm and must remain mindful of the consequences that can arise from information disclosed by it. The numbers could have been blurred if the aim was only to provide 'incidental footage'.

[40] The minority would therefore uphold the complaints under the privacy standard.

For the above reasons a majority of the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 August 2014

Appendix

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

1               Casie Heron's direct privacy complaint – 28 February 2014

2               MediaWorks TV's response to the complaint – 3 April 2014

3               Ms Heron's final comment – 7 April 2014

4               MediaWorks TV's final comment – 15 April 2014

1               Anna McLoughlin's direct privacy complaint –18 March 2014

2               MediaWorks TV's response to the complaint – 3 April 2014

3               Ms McLoughlin's final comment – 15 April 2014

4               MediaWorks TV's final comment – 15 April 2014

¹See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

 ²E.g. Spring and The Radio Network, Decision No. 2007-108

³NJ and Apna Networks Ltd, Decision No. 2010-066

⁴E.g. Spring and The Radio Network, Decision No. 2007-108

⁵NJ and Apna Networks Ltd, Decision No. 2010-066 at paragraph [13], in which we referred to the Note to the privacy principles in Appendix 2 of the Code, which provides that the privacy principles can be elaborated or refined 'when applied to a complaint'.

⁶Practice Note, Privacy Principle 4: Disclosure for the Purposes of Encouraging Harassment (Broadcasting Standards Authority, 2011)

⁷Hosking v Runting PDF317.33 KB [2005] 1 NZLR 1 (CA), paragraph [30]

⁸Hosking v Runting PDF (317.33) KB [2005] 1 NZLR 1 (CA), at paragraph [127]

⁹Hosking v Runting PDF (317.33 KB) [2005] 1 NZLR 1 (CA), at paragraph [128]

¹⁰Andrews v Television New Zealand PDF134.21 KB CIV 2004-404-3536, at paragraph [49]

¹¹Kirk and TVWorks Ltd, Decision No.2007-088

¹²Spring and The Radio Network, Decision No. 2007-108

¹³NJ and Apna Networks Ltd, Decision No. 2010-066

¹⁴NJ and Apna Networks Ltd, Decision No. 2010-066

¹⁵The Order of St John and Television New Zealand, Decision No. 2009-025