BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld a complaint that an item on Sunday, featuring a family who complained to the Health and Disability Commissioner (HDC) about allegedly inadequate maternity healthcare following the death of their baby, breached the fairness and privacy standards. The Authority found it was unfair to name the complainant, HV, as the consultant obstetrician on the case prior to the HDC completing its investigation or making any findings. Singling out HV in this way had the effect of predetermining an adverse conclusion about their responsibility (whether or not that was the broadcaster’s intention), and the complainant was not informed about the proposed broadcast or given an opportunity to respond or mitigate any reputational impact. On privacy, the Authority found the fact HV was subject to an HDC complaint was information about which the complainant had a reasonable expectation of privacy. This was because, although the woman who had made the HDC complaint could disclose this to others, and the HDC does not have the power to order name suppression, the HDC process is otherwise treated as a confidential process. The complainant could reasonably expect the complaint would not be disclosed to a national audience without any prior warning or a chance to respond. Removing the complainant’s name from the item would not have detracted from the public interest in the story overall.

Upheld: Fairness, Privacy. Order: Section 16(1) - $3,450 legal costs to complainant

The broadcast

[1]  An item on Sunday featured two families who made complaints to the Health and Disability Commissioner (HDC) about allegedly inadequate maternity healthcare, and the lengthy delays in the HDC complaint process being resolved. The item was introduced by the Sunday presenter Miriama Kamo as follows:

The miracle of a baby. But for one expectant couple things went terribly wrong at 28 weeks. They believe the health system let them and their baby girl down. After more than three years they’re still waiting for answers. The problem, they say, lies with the Health and Disability Commissioner’s complaints process. Others agree, saying it’s agonisingly slow. Here’s Rebecca Wright…

[2]  A large portion of the item centred on this family and their personal experience at Waikato Hospital and with the HDC, including the mother’s quest to find out what happened between the time she was admitted with severe pain, to having a scan nearly 17 hours later, followed by an emergency caesarean section, and ultimately the death of their new-born baby after only 25 days.

[3]  Relatively early in the item, the mother said she ‘[wants] the doctor in this case to be held accountable for [their] practice’. In the middle of the item, the reporter stated:

The Waikato DHB and consultant obstetrician [the complainant, HV] have apologised for [the family’s] loss but have never accepted responsibility.

[4]  The reporter later referred to an independent report by the Accident Compensation Corporation (ACC), saying:

In the Waikato, [the mother] is still waiting for her answers from the HDC, three years later.

…Independent reviews of [the mother’s] case have already confirmed some of her concerns. One report for ACC says [she] required more aggressive investigation and management and by 10am – nine hours after being admitted – it was clear she needed more than just pain relief. Also, there was limited obstetric consultant involvement in her care and inadequate staffing levels on that Sunday were in part responsible.

[5]  At the conclusion of the item, Ms Kamo read out a statement from the Waikato DHB, as follows:

Well in a written statement the Waikato DHB expressed sympathy to [the mother] and acknowledged her frustration. The hospital says it asked the HDC for three extensions totalling 34 days because of staff being on leave. They’re confident in the care provided to [the mother] based on internal and external reviews carried out. An internal investigation found staff were acting within guidelines for performing an emergency caesarean in under 30 minutes. The hospital did, however, find problems with communication between the different medical teams, and with [the mother]. Her case led to more radiology and obstetric staff being employed.

Summary of the complaint

[6]  In essence, HV complained that the broadcast breached the fairness and privacy standards of the Free-to-Air Television Code of Broadcasting Practice,¹ on the basis it was unfair and not justified in the public interest to name them in the middle of the item, and without informing them prior to the broadcast or giving them an opportunity to respond. Naming them in this context breached their privacy and had the potential to cause significant reputational harm, HV said.

[7]  The primary points of complaint and the broadcaster’s response are set out in more detail in our assessment of the fairness and privacy standards below.

The relevant standards

[8]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.²

[9]  The privacy standard (Standard 10) requires broadcasters to 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.³

Overview of outcome: Freedom of expression weighed against potential harm

[10]  Our starting point in determining complaints is the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Our task is to weigh the value of the item against the alleged harm caused, which in this case is the potential reputational harm to HV as a result of being identified in this Sunday broadcast.

[11]  An important consideration in this balancing exercise is the level of public interest in the broadcast. This Authority has acknowledged in a number of previous cases that there is high public interest and high value in investigating concerns about the practice of health professionals and the health system and services provided to the New Zealand public generally. Looking at the nature and value of the item in this case, we accept there was high public interest in scrutinising significant delays in the HDC process for resolving maternity healthcare complaints. The item provided aggrieved complainants with a platform to share their personal stories and their experiences of the HDC process. Naturally, this included their own accounts of the healthcare they received and the adverse outcomes involved which led to the HDC complaints.

[12]  However, we were not persuaded that in this case there was value or public interest that justified specifically singling out the complainant’s identity, which had the effect of making a judgement call about HV’s level of responsibility and professional conduct before the HDC itself had made any conclusion. HV was not informed or given any chance to defend their reputation. Removing one instance of the complainant’s name, in the middle of the item, would not have detracted in any way from the broader public interest in the item as a whole, described above.

[13]  We have therefore concluded in this case that upholding the complaint places a reasonable and justified limit on the right to freedom of expression. We expand our reasons for this finding in relation to the fairness and privacy standards below.

Fairness

The complaint

[14]  HV, via their legal counsel, made the following key points in support of their complaint that the fairness standard was breached:

Unfair identification

• It was unfair and unnecessary to identify HV:
  • given their identity was not central to the stated purpose and focus of the item (investigating delays in the HDC process)
  • while the HDC investigation into the mother’s complaint was ongoing and had not been concluded, or any findings made
  • in the absence of naming any others involved, which unfairly suggested HV was:
    • primarily responsible for the outcome
    • primarily responsible for the care provided as described by the family and the ACC report
    • the cause of the delays in the HDC investigation.
• Naming HV inevitably made them a focus, if not the focus, of the programme segment.

Informed participation and opportunity to comment

• HV was given no prior warning by TVNZ that it intended to include their name in the programme and they were given no opportunity to comment.
• Publication of HV’s name while an investigation was ongoing could impact on their career and standing in their profession.
• While TVNZ stated HV was referred to only briefly, it was apparent from the item that the mother considered HV to be responsible.
• While the programme referred briefly to HV’s statement denying responsibility, had they been given the opportunity to comment it would have gone beyond a simple denial of responsibility; HV would have commented on the inclusion of their name and the actual content of the programme (as against its stated purpose).
• While HV had been publicly backed by Waikato DHB, they ought to have been given the same opportunity to comment as Waikato DHB (given the greater impact on an individual of being named).
• TVNZ’s arguments that public interest justified naming HV and yet also justified not contacting them or offering them a chance to comment on the basis HV’s participation was minor, are contradictory. Either HV’s involvement in the programme was significant enough to justify they be named and thereby informed and provided an opportunity to comment, or it was peripheral such that they should not have been named.
• If TVNZ believed the ACC report referred to in the programme suggested serious concerns were raised about HV’s professional conduct by an external consultant, the fairness standard required that HV be notified and given an opportunity to comment.

The broadcaster’s response

[15]  TVNZ did not find any breach of the fairness standard, citing the following reasons:

Identifying HV and alleged suggestion that HV was responsible

• There was considerable public interest in the story and in naming HV.
• Naming HV did not create the ‘obvious inference’ that they were responsible. This was recognisable as the mother’s personal view.
• Taking the programme as a whole, it was apparent that responsibility had yet to be established and that the HDC investigation had not concluded so no findings had been made.
• HV’s involvement was clearly contextualised as being one component of a broader effort involving multiple medical teams. HV was named because HV was the consultant obstetrician on the case. There was no prolonged focus on HV, who was named only once in relation to the apology given to the family.
• The programme listed faults in care identified in an ACC report but it did not portray them as the shortcomings of any one individual.
• Waikato DHB’s views of the incident were included and identified issues which were clearly beyond the responsibility of any one person.

Opportunity to comment

• HV was not approached for comment because:
  • They were referred to only briefly and were not the programme’s focus.
  • They had already made a statement denying responsibility for the family’s outcome, to which the programme referred.
  • They had been publicly backed by the Waikato DHB, which the programme noted. The programme explained that the Waikato DHB echoed HV’s denial of responsibility and asserted its confidence in the care [the mother] received.
• There is nothing to support an inference that viewers would assume delays in the HDC process were caused by HV. The reference in the programme to the fact that the families featured felt delays in the HDC complaints process had been caused by DHBs, hospitals, or doctors did not include or imply any specific allegation against HV.

Our analysis and the outcome

[16]  While both the complainant and the broadcaster have made detailed submissions regarding various aspects of the Sunday broadcast, in our view this complaint highlights two core fairness principles on which we have based our determination, rather than getting into the detail or responding to every point raised.

[17]  It is a fundamental tenet of the fairness standard that programme participants and contributors must be informed, before a broadcast, of the nature of the programme and their proposed contribution – except where justified in the public interest, or where their participation is minor in the context of the programme (guideline 11b). It is also a fundamental fairness principle that, where a person or organisation portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment, before the broadcast (guideline 11d). The rationale behind these two principles and the fairness standard generally, is that people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[18]  With these principles in mind, we did not have any difficulty finding that in this case HV was not treated fairly. This is because:

• Naming HV as the consultant obstetrician in the context of discussing the mother’s hospital care and the death of her baby, and the related complaint to the HDC, effectively predetermined an adverse conclusion about HV’s level of responsibility and professional conduct in the case, before the HDC investigation had been concluded or any finding made in relation to HV’s professional performance, and before the HDC considered whether or not HV would ultimately be named in its findings.⁴ That may not have been the broadcaster’s intention in naming HV, but in the context of the broader item the broadcaster should have recognised the audience was likely to make that connection.
• In these circumstances the fairness standard required that HV: a) be informed of the proposed nature of their participation and the context in which they would be referred to; and b) be given a fair and reasonable opportunity to comment in response, prior to the broadcast. There is no dispute that neither of these steps occurred in this case, meaning HV did not have any chance to defend themselves or mitigate potential reputational impact.
• The brief sentence referring to the Waikato DHB and HV apologising to the family, and the statement from the Waikato DHB at the conclusion of the item, were insufficient to discharge fairness obligations with respect to HV’s individual interests and reputation. These aspects of the programme commented only on their earlier dealings with the family and HV had no chance to comment on the wider broadcast or the reference to them. The Authority has also clearly stated in previous decisions that where an individual may be adversely affected by a broadcast, the broadcaster must make reasonable efforts to contact that individual directly and it will not be sufficient that the individual’s employer, for example, has been contacted for comment on their behalf.⁵
• The public interest in the item as a whole would not have been altered or reduced by removing the single reference to HV’s identity in the middle of the item. The main issue, as we have said, is that by singling out HV in order not to implicate anyone else, the broadcast had the effect of predetermining an adverse conclusion about HV’s responsibility for alleged failures in the mother’s maternity care (whether or not that was the broadcaster’s intention). In the absence of the HDC decision on the matter, which may or may not support that implication, HV’s identity did not carry public interest that outweighed their personal interests.

[19]  For these reasons, we find that the harm arising from identifying HV without informing them or giving them an opportunity to comment outweighed the right to freedom of expression, and that upholding the complaint places a reasonable and justified limit on that right.

[20]  We therefore uphold HV’s complaint under the fairness standard.

Privacy

The complaint

[21]  HV made the following key points in relation to the alleged breach of the privacy standard:

• It has been accepted in the Coroner’s Court that doctors have a reasonable expectation that their performance details are private until in the public domain.⁶ This is notwithstanding the HDC’s inability to order name suppression.
• HDC investigations are intended to be confidential, and only after they have concluded does the HDC apply its naming policy,⁷ to determine whether to name those involved. It is rare for the HDC to name individual practitioners because of the strong private/personal interests against doing so.
• While a complainant cannot be prevented by the HDC from making details public (as acknowledged in the HDC naming policy), in this case it was not the HDC complainant (the mother) but the broadcaster who named HV in the item.
• Responding to TVNZ’s position that there was legitimate public interest in naming HV (which is a defence to a breach of privacy):
  • There was no public interest in naming HV in relation to delays in the HDC process, which was the alleged focus of the programme.
  • Contrary to TVNZ’s submission that it was important to name HV in order to ensure other doctors working at Waikato Hospital were not incorrectly associated with the HDC complaint: there was no public interest in naming HV in this respect in the context of investigating HDC delays (as above); no findings had yet been made by the HDC in respect of HV; and there were a number of doctors involved in the mother’s care.
  • Referring to the ACC report was irrelevant to delays in the HDC process. TVNZ chose to put the ACC report into the public arena when it was not necessary to do so in the context of the programme.
  • TVNZ’s suggestion that the programme did not promote the idea one person was responsible for the mother’s care and that the DHB view acknowledged others were involved, contradicts its argument that it was necessary to name HV so others were not implicated in the HDC complaint.

The broadcaster’s response

[22]  TVNZ did not find any breach of the privacy standard, for the following reasons:

• The item disclosed that HV was a senior member of the team caring for the mother featured and that HV, along with the Waikato DHB, had apologised to the family for their loss, but accepted no responsibility for the incident. This does not constitute private information about HV.
• The HDC did not prevent TVNZ from naming HV; the HDC’s naming policy explains that the HDC has no legal power to order name suppression, and that it is always possible for parties to an investigation to put names in the public arena, which is what happened in this case.
• There was legitimate public interest in the disclosure of the information, as follows:
  • It was appropriate for the public to be aware of the concerns about the quality of care provided by the Waikato DHB and the team of which HV was a senior member.
  • The item did not support or promote the idea that what happened was due to one person; the response of the Waikato DHB identified communication and staffing issues, which indicates that the outcome was beyond the responsibility of any one person.
  • Nevertheless, it was clear that the mother interviewed held HV responsible, and the ACC report cited in the item also raised serious questions about HV’s professional conduct. Therefore it was important, and in the public interest, to name HV to ensure that other senior obstetricians working at Waikato Hospital were not incorrectly associated with the HDC complaint.
• HV’s involvement in the HDC case was not overstated and disclosure of the fact that they had apologised but had not accepted responsibility would not have been highly offensive to an objective reasonable person in their position.

Our analysis and the outcome

[23]  In deciding whether a breach of privacy has occurred we consider three criteria, outlined in the guidelines to the privacy standard (Standard 10):

(a)  whether the individual whose privacy has allegedly been interfered with was identifiable (guideline 10a);

(b)  whether the broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy (guideline 10b); and

(c)  whether the disclosure would be considered highly offensive to an objective reasonable person (guideline 10c).          

[24]  In this case HV was clearly identifiable by name and by their position at Waikato Hospital. The item disclosed the following information about HV:

• that they were the consultant obstetrician for the mother featured in the programme;
• that their services were relevant to the mother’s complaint to the HDC, following the death of her new-born baby;
• that their professional performance was therefore subject to an investigation by the HDC;
• that the Waikato DHB and HV had apologised to the family for their loss but had not accepted responsibility; and
• that the mother wanted ‘the doctor in this case to be held accountable’, which we consider referred to HV by implication.

[25]  The key element in our view with respect to the information disclosed in the programme, was that HV was part of the HDC complaint and therefore their professional performance was being investigated, in relation to the death of a new-born baby. We consider HV had a reasonable expectation of privacy in relation to this information on the basis that, irrespective of HDC’s own policy on naming individual providers, HV could have reasonably expected that their name would not be disclosed in the context of discussing the HDC complaint on national television, without being informed prior to the broadcast. We accept the mother is able to discuss her medical care and her HDC complaint freely (as acknowledged by the HDC website and its naming policy), and in this respect HV had a slightly reduced expectation of privacy. But is up to the broadcaster to assess the risk of breaching the privacy standard, not the mother. We do not consider TVNZ had sufficient grounds to identify HV at the time of the broadcast given the HDC process was ongoing and the broadcaster did not have confirmation that HV was indeed considered to be responsible. Disclosing HV’s involvement in the case and in the HDC complaint on Sunday significantly widened the audience beyond those the mother may have told, and clearly had the potential to undermine HV’s privacy interests.

[26]  In addition, although it has no power to order or enforce confidentiality, the HDC confirmed to us it treats its process as confidential and requests the parties treat it as confidential. Relevant practitioners are only named in HDC decisions in limited circumstances and after consultation with the parties involved. HDC advised it is ‘extremely rare’ for an HDC decision to name an individual practitioner. We were also advised by HV’s legal counsel, in the course of the complaint process, that the HDC confirmed it would not be naming individual providers in its decision on the mother’s complaint. If that is the case, it means only TVNZ has put HV’s name into the public arena in the context of the HDC complaint.

[27]  For similar reasons, we also consider the disclosure of this information about HV would be highly offensive to an objective reasonable person, as it clearly implicated HV’s reputational and professional interests.⁸

[28]  We therefore found that the three criteria for a breach of privacy were met in this case.

[29]  The final step is to consider whether the defence of public interest was available to the broadcaster. TVNZ maintains that it was.

[30]  The privacy guidance in the Codebook states:⁹

8.3  The degree of public interest in the material broadcast must be proportionate to the gravity of the breach of privacy, in order for the broadcaster to rely on public interest as a defence to the breach.¹⁰

8.4  The public interest must relate to the disclosure of the particular information or recording that is alleged to breach privacy.¹¹ However, the public interest in the programme or series as a whole will also always be considered.

[31]  Having regard to these principles, we do not consider TVNZ has demonstrated sufficient public interest to justify breaching HV’s privacy by naming them in the Sunday item. The key reasons supporting this view are:

• There were insufficient grounds to identify HV before the HDC had concluded its investigation or made any finding in respect of HV’s responsibility or involvement. The public interest alleged relies on a premature judgement that HV, as opposed to anyone else, should be held responsible by the HDC – notwithstanding that elsewhere in the broadcast it was suggested no one person was responsible.
• We agree with the complainant that the programme was framed as being concerned with unacceptable delays in the HDC process and getting closure for families like the two families featured. While this carried a high level of public interest, HV’s identity in this context did not. HV was only part of the mother’s back-story as to how she and her family came to complain to the HDC and how long it had taken for them to get any resolution (more than three years at the time of broadcast).
• Removing the single reference to HV’s identity in the middle of the item would not have detracted in any way from the public interest in the broader item or in highlighting shortcomings in the HDC process.
• Similarly, we do not think the coverage in the item of the ACC report, which also referred to numerous factors contributing to the mother’s situation (primarily a lack of communication), demonstrates sufficient public interest for breaching HV’s privacy by identifying them elsewhere in the item and in a different context – particularly given the HDC had not concluded its own investigation, which was the predominant focus of the item.

[32]  For the same reasons we are satisfied that upholding this part of the complaint does not unreasonably restrict the right to freedom of expression. The programme as a whole could be broadcast unchanged, with the exception of removing one instance of the complainant’s name. The impact on the complainant by calling into question their professional performance before the HDC complaint had been resolved, is much greater than this minimal limitation imposed on the broadcaster’s editorial freedom in the way it presented this programme, and would not have affected the audience’s understanding of the programme in its entirety.

[33]  We therefore uphold the complaint under the privacy standard.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 19 April 2020 breached Standard 10 (Privacy) and Standard 11 (Fairness) of the Free-to-Air Television Code of Broadcasting Practice.

[34]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our provisional findings and appropriate orders from the complainant and the broadcaster.

Submissions on Provisional Decision

[35]  HV accepted the Authority’s provisional decision and did not make any submissions in this regard.

[36]  TVNZ accepted the Authority’s decision upholding the complaint under the fairness standard. However it invited the Authority to reconsider its decision that the privacy standard was breached, for the following reasons:

• The Authority’s decision appears to have been based on the complainant’s interpretation of the Coroner’s Court’s decision in Gravatt (concerning a young man who died after a late diagnosis of meningococcal meningitis), which TVNZ submitted was an incorrect interpretation.
• Gravatt did not accept that ‘doctors have a reasonable expectation that their performance details are private until in the public domain’, as alleged. Gravatt found that:
  • ‘Hospitals are by dint of their function, public places. But the medical treatment of patients is a deeply personal matter for the patient, attracting a high expectation of privacy. There is also a reasonable expectation that employers will keep private information about the performance of health professionals, and indeed such personal information is subject to Privacy Act principles. Accordingly, to the extent that relevant workplace information is not already in the public domain, it is a matter of personal privacy.’ [TVNZ’s emphasis]
  • "Health professionals, like other professionals, must expect that their conduct may be assessed by disciplinary or other regulatory bodies, and may be subject to public scrutiny from time to time. As noted by [counsel], there is a general presumption that health professionals subject to disciplinary proceedings will be named (ABC v Complaints Assessment Committee [2012] NZHC 1901). Furthermore, some of the work related information cannot be characterised as intimate, as it will likely be known in part at least to patients and/or colleagues" [TVNZ’s emphasis].
  • "Returning then to the key question: is suppression of the names of the health professionals justified on personal privacy grounds? I am unable to agree…that the workplace information unveiled by the Coroner is sufficiently private to outweigh the value that attaches to free speech. While I yield to the Coroner's assessment of the general public interest in the specific information sought to be disclosed, the inherent value of freedom of speech must also be carefully weighed. It is also about the importance of enabling ongoing public debate on a matter of legitimate and genuine concern to a parent of the deceased."
• TVNZ noted that while there were concerns about the systemic failures in the young man’s healthcare in Gravatt, neither doctors A nor B were disciplined for their involvement in his treatment. The second Coronial Inquest, which focussed on the actions of Dr A and Dr B was not critical of the care they provided; several of the findings were supportive of their actions.
• Both A and B sought permanent suppression orders. In 2013, suppression for B was declined. Suppression was eventually granted to both A and B in 2020, with the lack of any criticism or negative findings by the Coroner being a relevant factor. The Judge noted, ‘This is not a case where publication of his name is important so that members of the public are informed of aspects of his professional conduct and competence that would be relevant to decisions regarding whether to engage him or rely on his expertise.’
• A further relevant factor for the granting of the suppression orders was that some of the information considered in the second coronial inquiry was received via an anonymous letter, and was unsubstantiated and disputed.
• In contrast with the present case involving HV:
  • HV has been subject to a three-year HDC investigation for their treatment of the mother featured in the item, and her baby.
  • HV has not at any stage been granted name suppression.
  • Nor was HV’s identity subject to any Privacy Act obligations, or any obligation of confidence.
  • HV’s identity was legitimately in the public domain. The phrase ‘public domain’ refers to information which is not subject to any legal restrictions; it does not refer to information being ‘publicised’ in the sense of being aired to a larger audience.
  • The Gravatt case clearly provides that ‘workplace information’ (in the sense of private employment information) is only ‘a matter of personal privacy’ until it is in the public domain. The information included in the Sunday story was neither ‘workplace information’, nor was it ‘a matter of personal privacy’ according to the test set out in Gravatt.
  • Further, the information contained in the Sunday story was based on a number of substantiated and credible sources, including the mother and the ACC report compiled by an obstetrician.
• TVNZ considered the Authority had misinterpreted its position with respect to the public interest in naming HV, in order to avoid casting aspersions on any other doctor as being involved in the case or in the HDC complaint. It clarified its position as follows:
  Sunday did not allege that [the mother’s] outcome was the responsibility of one person, but it was apparent that [the mother] thought it was. [HV] was a senior member of the team caring for [the mother]. [HV], along with the Waikato DHB, had apologised to the…family for [its] loss. By naming [HV] Sunday ensured that any suspicion regarding who was the subject of the complaint could not be misdirected at another employee. This was a necessary and responsible step to take.
• ‘Notwithstanding the DHB’s finding that there were shortcomings across numerous teams, the fact remained that one staff member was implicated in [the mother’s] complaint. It is an established legal principle that aspersions cast on a group of people may be actionable by an individual member of that group. The smaller the relevant group, the more significant the legal risk. Sunday's research in preparation for this story suggested that there were about six obstetricians [of the same gender as HV] operating out of Waikato Hospital at the relevant time…If Sunday had not named the obstetrician responsible for [the mother’s] care, and being investigated by the HDC, this omission would have unjustifiably cast aspersions on the small pool of…obstetricians [of the same gender] operating at the hospital at that time. The fact that a name suppression order had not been granted was also a relevant factor in this decision-making process. By naming [HV], there was no possibility of suspicion being cast on other consultants.’

Authority’s response to submissions: Standard 10 – Privacy

[37]  We have carefully considered TVNZ’s detailed submissions on the appropriate privacy tests to be applied in this case.

[38]  First, we note that the reference to Gravatt appeared in the decision only in the context of summarising the complainant’s submissions on privacy. It is not otherwise mentioned in our findings, because, contrary to TVNZ’s submissions, it was not the case that ‘This interpretation of Gravatt… formed the basis for the Authority’s decision to uphold the privacy complaint.’

[39]  The Authority’s role is to apply the relevant broadcasting standard, guidelines and guidance contained in the Broadcasting Standards in New Zealand Codebook. While the Codebook guidance states we will ‘have regard to developments relating to privacy law in New Zealand and in other jurisdictions’, it also emphasises that ‘The specific facts of each complaint are especially important when considering whether an individual’s privacy has been breached’ and that the guidance ‘is not exhaustive and may require elaboration or refinement when applied to a complaint’.¹² We apply the privacy principles as they relate to broadcasting standards, in a broadcasting context, on a case-by-case basis.

[40]  We acknowledged in our findings above that HV’s ‘reasonable expectation of privacy’ was reduced, to the extent that the mother involved could tell others about the care she had received or about the complaint she had made to the HDC. However, we stand by our view that the disclosure by the broadcaster, on national television, of HV’s identity in connection with a complaint to the HDC concerning the death of a new-born baby breached the privacy standard of the Free-to-Air Television Code. Primarily this is because:

• We do not consider that information was ‘in the public domain’, in the sense that it was not information that an average member of the public would be privy to, or could access, notwithstanding that the mother may choose to tell some people about her own experiences and the fact she had made a complaint. Notwithstanding this possibility, the HDC process is nevertheless treated as a confidential process.
• What is in the ‘public domain’ in the context of applying broadcasting standards is broader than merely ‘information which is not subject to any legal restrictions’ (including any suppression order). The test applied in the Code turns rather on a person’s ‘reasonable expectation’ of privacy in relation to the information.
• Further, the Codebook specifically recognises that in some cases there may still be a reasonable expectation of privacy in relation to information that is in the public domain. For example, the Authority has previously found, in relation to a family matter that was heard in the High Court:¹³
  We are not persuaded by the broadcaster’s contention that simply because something has been to court, it is not private. A ‘private fact’… is information which a person can reasonably expect to remain private, and this can include information that is, or has been, in the public domain…While it is possible for members of the public to search and access court judgments, they are not widely disseminated, and most ordinary viewers would not be aware of such court cases.
• In the same decision, the Authority considered ‘matters that are personal and sensitive in nature, which have the quality of ‘privateness’, and which a person can reasonably expect to remain low-profile if they choose not to share the details with others’¹⁴ amounted to information about which the individual had a reasonable expectation of privacy, notwithstanding that those matters had been discussed in court. While the factual background here is different, we consider the fact of HV’s involvement in a complaint to the HDC falls within the same category described, especially while it has not been resolved or any findings released with respect to their professional performance.
• Many of the aspects of Gravatt highlighted by the broadcaster were dependent on the outcome and findings of the Coroner’s Court with respect to the actions of the two doctors involved. The outcome of the HDC investigation or any findings regarding HV’s professional performance were not available at the time of the broadcast and are still not available at the time of writing this decision. Even once that decision is made, HV may not be named in the decision which is provided to the relevant parties, and the HDC website says ‘an anonymised copy of the report may be placed on the HDC website for educational purposes’.¹⁵

[41]  For the same reasons, primarily that no decision has yet been made on the HDC complaint, we also stand by our view that there was insufficient public interest in naming HV in order to avoid associating the (unresolved) HDC complaint with any of the other obstetricians working at Waikato Hospital. Additionally, while the mother and the ACC report may have identified HV in connection with alleged issues with the mother’s maternity care, we reiterate our view that removing the single instance of HV’s name would not have altered the level of public interest in the item as a whole, which was framed as investigating delays in the HDC process specifically. Our main concern, as we have said, is that by naming HV the broadcast effectively pre-empted the HDC decision and also its decision on whether ultimately HV would be named in its findings, applying its Naming Policy.

[42]  Therefore we remain of the view the public interest defence was not available to the broadcaster, with respect to naming HV in the item.    

Submissions on orders

[43]  HV sought a direction to TVNZ that HV’s name be deleted from any on demand version of the report and literature about the programme. HV was otherwise happy to leave any appropriate remedies in the hands of the Authority, and noted that if the Authority was minded to award damages to HV, it would be paid to charity.

[44]  In relation to the breach of the fairness standard, TVNZ proposed to:

• remove the complainant's name from the version of the programme that remains online
• provide a link to the Authority's Decision on the page where the programme is accessed
• subject to the approval of the Authority, send a written letter of apology to the complainant from Sunday’s Executive Producer.

[45]  TVNZ did not consider a broadcast statement would be appropriate given the circumstances and the potential to bring further attention to the issue that is the subject of the complaint. Nor did it consider privacy compensation should be awarded given its view that the privacy complaint should not be upheld.

[46]  TVNZ submitted no order of legal costs was warranted on the basis it was not necessary to use legal counsel to present the arguments made in the complaint.

[47]  Finally, TVNZ did not consider costs to the Crown were warranted, noting:

• Publication of the decision is sufficient to censure TVNZ for the breach and to notify anyone interested in the issues raised in the programme of the story’s shortcomings.
• ‘Sunday takes its responsibilities under the broadcasting standards seriously and applies robust and rigorous considerations to all aspects of its stories. The decision not to approach the complainant for comment in this case has been reviewed and the staff members involved advised of the Authority’s findings.’
• ‘The decision provides clear guidance to Sunday and other TVNZ factual programmes for their preparation of similar stories in the future.’

Authority’s decision on orders

[48]  Having regard to both the complainant’s and the broadcaster’s submissions, we do not consider orders for a broadcast statement, costs to the Crown or privacy compensation are warranted in this case. This is because:

• We acknowledge and endorse the remedies proposed by the broadcaster, outlined above (which are not orders the Authority otherwise has the power to make). In particular, we note that TVNZ has agreed to remove HV’s name in the online version of the programme, which is the remedy sought by the complainant from the beginning. Although not explicitly mentioned in its submissions, we assume the broadcaster also intends to remove HV’s name in the corresponding written article online.
• We agree that a broadcast statement is not appropriate in the circumstances as it risks compounding the harm caused to the complainant by re-publicising the issues raised in the complaint.
• TVNZ and the Sunday team have accepted the Authority’s decision on the fairness standard and Sunday advises it has reviewed its decision not to approach HV for comment, so costs to the Crown are not warranted. Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.
• On the basis TVNZ has now agreed to the remedy sought by the complainant, which we consider to be an effective and proportionate remedy, we do not order compensation for the privacy breach.

[49]  We do however consider that the complainant should be entitled to recover a portion of their costs incurred in making this complaint (although this has not been explicitly sought). Costs awards are generally granted to compensate, in part, a successful complainant for legal costs which have been incurred.¹⁶ In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.¹⁷

[50]  The factors to be taken into account in assessing whether costs are appropriate, and in what amount, are:¹⁸

• the complexity of the issues raised
• the number of issues raised
• the complexity of the factual background
• the number of substantive submissions that needed to be made
• whether the proceeding required resolution of any interlocutory or procedural issues
• the need for the complainant to have incurred costs to the extent that costs were incurred or at all
• the amount of costs incurred
• the nature and importance of the complaint to the complainant
• the public interest in the complaint.

[51]  HV’s counsel has provided us with evidence verifying the cost incurred, which totalled $9,080 excluding GST ($10,442 including GST). In determining the appropriate contribution to these costs that should be awarded to HV in this case, we have taken into account the following factors:

• It was reasonable for HV to seek legal advice and assistance with their complaint, given the link to HV’s professional interests and reputation.
• We have upheld HV’s complaint under both of the nominated standards (fairness and privacy).
• The primary issues raised in the complaint were relatively narrow, centring on the single instance of the complainant’s name in the broadcast. In this sense the issues, and the factual background, were not overly complex.
• HV’s counsel provided thorough and helpful submissions at each stage of the complaints process.

[52]  Taking all of the above factors into account, we consider that an order of costs in the amount of $3,450 is appropriate, being approximately one third of the total costs incurred.

Order

Under section 16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $3,450 within one month of the date of this decision. The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
16 November 2020

Appendix

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

1  HV’s formal complaint to TVNZ – 21 April 2020

2  TVNZ’s email response to HV’s legal counsel – 23 April 2020

3  Counsel for HV’s further letter to TVNZ – 11 May 2020

4  TVNZ’s email response to counsel’s letter – 15 May 2020

5  TVNZ Complaints Committee’s formal decision on HV’s complaint –
20 May 2020

6  HV’s referral to the Authority – 17 June 2020

7  TVNZ’s comments responding to HV’s referral – 7 August 2020

8  HV’s final comments – 12 August 2020

9  TVNZ’s final comments – 11 September 2020

10  HV’s submissions on orders – 29 September 2020

11  TVNZ’s submissions on Authority’s Provisional Decision and orders –
2 October 2020

12  TVNZ’s confirmation of no further comments on HV’s submissions –
15 October 2020

13  Further submissions from HV responding to TVNZ’s submissions –
20 October 2020

14  Evidence of HV’s legal costs – 27 October 2020

15  HDC’s response to Authority’s request for information and comment –
2 November 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁴ In this respect, both the complainant and the broadcaster referenced HDC’s Naming Policy (also discussed in our consideration of the privacy standard): see Health & Disability Commissioner “Naming Providers in Public HDC Reports” <www.hdc.org.nz>
⁵ See, for example: Ministry for Primary Industries and MediaWorks TV Ltd, Decision No. 2016-092 at [22]; HC and CT and Television New Zealand Ltd, Decision No. 2010-163 at [79]
⁶ Gravatt v Auckland Coroner’s Court [2013] NZAR 345; [2013] NZHC 390 at [75]
[7] Health & Disability Commissioner “Naming Providers in Public HDC Reports” <www.hdc.org.nz>
⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 60
⁹ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63
¹⁰ MA and Television New Zealand Ltd, Decision No. 2010-084
¹¹ Russek and Television New Zealand Ltd, Decision No. 2007-016
¹² Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹³ WS and MediaWorks TV Ltd, Decision No. 2014-100 at paragraph [14]
¹⁴ As above
¹⁵ Health & Disability Commissioner “What if a complaint is made about me?” <www.hdc.org.nz>
¹⁶ Guidance: Costs awards to complainants, Broadcasting Standards in New Zealand Codebook, page 66
¹⁷ As above
¹⁸ As above, page 67