BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News – file footage of partly naked meningitis victim – unconscious – privacy

Findings
Privacy principles (i), (ii), (vi) and (vii) – facts not highly offensive and objectionable – public interest and consent defences – no uphold

This headnote does not form part of the decision.

Summary

File footage of an unconscious man then suffering from meningococcal meningitis was shown during an item on One News broadcast on TV One between 6.00 and 7.00pm on 30 April 2000.

Kathleen Hobo complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the footage breached the man’s privacy, as he was filmed naked, except for a disposable nappy.

In its response, Television New Zealand Ltd, the broadcaster, said that the man’s mother had consented to the filming before the original broadcast, and that it considered the rebroadcast footage was neither voyeuristic nor exploitative. TVNZ considered that the news item was one of strong public interest, and that the private facts which were shown were not highly offensive or objectionable to a reasonable person of ordinary sensibilities.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

An item on One News broadcast on TV One between 6.00 and 7.00pm on 30 April 2000 concerned a case of amoebic meningitis which left a 10 year old victim seriously ill in hospital. In the context of explaining the difference between amoebic meningitis and meningococcal meningitis, file footage of an unconscious man suffering from meningococcal meningitis was shown.

Kathleen Hobo complained to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast failed to respect the privacy of the unconscious man, as he was filmed naked, except for a disposable nappy. In her complaint, she explained that she was unsure what the story had been about, as she had watched the item with the mute button on.

In its response to the Authority, TVNZ explained that it had assessed the complaint under privacy principles (vi) and (vii). Those principles read:

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

TVNZ said that the man’s mother had given her unqualified permission for the original use of the footage, and that it had had no indication that the man or his mother objected to its being rebroadcast. It considered that the footage was neither voyeuristic nor exploitative, and that the matter was one of strong public interest.

As a final point, TVNZ submitted that, in case the Authority should also consider privacy principles (i) or (ii), the private facts which were shown were not highly offensive or objectionable to a reasonable person of ordinary sensibilities.

In her final comment, Ms Hobo reiterated her concern about the dignity of the unconscious man. In her view, it was unnecessary and "sensationalist" to show footage of his whole body to illustrate the signs of the disease. She believed that the effects could be seen by showing only his legs.

The Authority’s Findings

When determining complaints relating to the privacy of the individual, the Authority applies the Privacy Principles set out in its Advisory Opinion. This complaint is assessed in relation to principles (i), (ii), (vi) and (vii). Principles (vi) and (vii) are set out above. Principles (i) and (ii) read:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

The Authority deals first with the question of whether there was a prima facie breach of privacy under either principle (i) or (ii). It records that principle (ii) was considered on this occasion as the broadcast included footage which was being rebroadcast some time after its original filming. The Authority finds that the unconscious man was identified by the broadcast, and that details of his condition and shots of him partially nude were private facts about him. However, it does not consider that those private facts, or any other facts in the item, whether public or private, were highly offensive and objectionable to a reasonable person of ordinary sensibilities. Accordingly, the Authority finds that there was no breach of either principle (i) or (ii).

The Authority records that even if there had been a breach of principle (i) or (ii), the broadcast would have been justified under principle (vi) or (vii) because the focus of the item was a public health warning, and consent was given for the original broadcast.

For the reasons set forth above, the Authority [omitted words: declines to uphold the complaint].

Signed for and on behalf of the Authority

Rosemary McLeod
Member
6 July2000

Appendix

The following correspondence was received and considered by the Authority when it determined this complaints:

1.    Kathleen Hobo’s Complaint to the Broadcasting Standards Authority – 1 May 2000

2.    Television New Zealand Ltd’s Response to the Authority – 16 May 2000

3.    Ms Hobo’s Final Comment – 25 May 2000