BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld one aspect of a privacy complaint regarding an episode of A Question of Justice which contained sensitive and traumatic photos of the complainant. The programme contained a re-enactment of an assault on the complainant in 2008, and showed photos of the complainant in hospital with extensive injuries and in a state of undress. The Authority found that while the photos had previously been broadcast in 2009, the sensitive surrounding circumstances and traumatic nature of the photos, combined with the passage of time since they had last been made public, meant the photos had become private again (especially since the complainant had no prior knowledge of this broadcast). The Authority did not uphold the remainder of the complaint, finding: disclosing the complainant’s involvement in the story and the re‑enactment did not breach her privacy; the broadcaster took sufficient action having upheld the complaint under the fairness standard (for not notifying the complainant of her inclusion in the broadcast); and the content would not have disproportionately offended or distressed the general audience, in the broadcast’s context.

Upheld: Privacy. Not Upheld: Fairness (Action Taken), Offensive and Disturbing Content.

Orders: Section 13(1)(d) – privacy compensation to the complainant $1,000

¹ Tupe Solomon-Tanoa’i declared a conflict of interest and did not participate in the decision

The broadcast

[1]  The second episode of Bryan Bruce’s crime documentary series A Question of Justice was broadcast on Prime on 23 October 2022. The episode focused on Māori incarceration rates, looking at the issue partly through a case study on the murder of a backpacker by a 14-year-old Taupō boy in 2008. The episode also spent several minutes discussing the boy’s earlier assault on the complainant (HW),² 12 days before he went on to murder the backpacker. The episode included a re-enactment of a party (where it was suggested the boy may have first encountered HW) and a re-enactment of the boy’s assault on HW. Photos of HW’s injuries were shown which were taken in hospital after the assault. The photos showed HW (who was 17 years old at the time of the attack) in hospital, wearing ripped and bloody clothing with her bra exposed, and blood, cuts, and bruises over her arm, chest, face and head.

The complaint

[2]  HW initially complained to the broadcaster under the privacy and offensive and disturbing content standards, advising she had received no warning as to the inclusion of her story in the programme, and stating:

Privacy

• It was ‘heart breaking, hurtful and insensitive’ for her name, photos and story to be used without her knowledge or permission, particularly as she believed only herself and the police had access to those photos. The complainant stated ‘this attack happened a good 15 years ago, over time things like this (story/photos) become private again.’

Offensive and disturbing content

• The level of violence used in the re-enactment was of an ‘extreme level’ and ‘brutal’, showing what the offender had done to HW, the weapon he used, and blood on the weapon and on himself.
• There were no warnings at the start of the show mentioning HW’s inclusion in the programme, only references to the murder of the backpacker. HW first knew of her inclusion when she saw her photo on a file being held up by one of the presenters on the programme, after the programme had already started.

[3]  On referral to the Authority and in later submissions, HW added:

Fairness

• Responding to the broadcaster’s decision to read in and uphold the complaint under the fairness standard (on the basis the complainant was not notified of the programme prior to broadcast):
  • HW reiterated she was not aware of the documentary until it went to air.
  • ‘It was horrible to see my attack being acted out without warning, and I had to watch one of the worst parts of my life played before my eyes and to a brutal extent… Not notifying the victim of a documentary like this is beyond words.’
  • The previous episode of A Question of Justice focused on victim rights; the failure to notify HW of her inclusion in the show left her feeling like her victim rights had been ‘thrown out the window’.

Accuracy

• The programme was misleading as it showed the perpetrator and his friend coming to the house party HW was at, and HW coming to the door the pair were trying to enter. HW says she never saw the perpetrator or his friend at the party.

Programme information

• There were no pre-warnings that HW’s assault would feature in the programme, only mentions of the offender and the murder victim. ‘The only pre warning I got from the programme was when I saw my photo on the file that was being held by one of the presenters after the programme had already started.

The broadcaster’s response

[4]  Bryan Bruce (the producer) contacted HW the day after the complaint to apologise for not notifying her, stating he was mortified for the failure to notify her and the distress this had caused; that the failure was a one-off error on his part and that he had contacted every other family whose cases appear in the series to forewarn them; and he was not sure how her name had ‘slipped through our net’. Bruce had the episode taken offline for two days and the photos of HW in hospital edited out, and requested the photos be restricted from future use.

[5]  The Head of Sky Originals also called HW to apologise for the failure to notify her.

[6]  Sky’s Complaints Committee then provided a formal response to HW’s complaint, apologising for the distress the broadcast had caused HW and reading in, and upholding, the complaint under the fairness standard (for the failure to inform her of her inclusion in the show prior to it airing). Sky did not uphold the remainder of the complaint under the privacy or offensive and disturbing content standards. Its key points of response were:

Fairness

• While the failure to notify HW was unintentional, the broadcaster accepted the mistake had caused distress to HW, and acknowledged the broadcast had breached guideline 8.2 of the fairness standard.³

Privacy

• The broadcaster acknowledged the hurt caused to the complainant but noted the privacy standard states a person will not usually have a reasonable expectation of privacy in relation to matters in the public domain (though the public nature of such matters is not definitive). The broadcaster advised:
  • There was significant media coverage of the murder and assault, and HW had spoken with media about her assault in the past.
  • The photos were also in the public domain. Bruce obtained the photos ‘through licensing footage containing the photos from TV3. The photos had been incorporated into a TV3 documentary [60 Minutes] previously broadcast to the public [in 2009]. Therefore this information was in the public domain, and the footage was freely available to license.’
• Bruce advised: ‘legally there was (and is) no reason why those injury photos could not still be included in the programme’; lawyers for the programme and for Sky had not raised any concerns about the use of the photos; and consent was not a requirement for broadcasting such information.

Offensive and disturbing content

• The broadcaster acknowledged the broadcast would have been upsetting for the complainant personally, but believed ‘the programme’s content was not out-of-line in terms of audience expectations for a programme of this genre… in the scheduled timeslot, and appropriately classified 16VSLC. The photos were not included by the producer gratuitously, rather they were included to demonstrate a clear modus operandi of the offender, as the documentary attempts to understand his recidivism.’

Accuracy

• Bruce noted no prior concerns had been raised about the accuracy of the re-enactment (until referral of the complaint), but nevertheless advised the re-enactment of the party was based on information obtained from court records.

Jurisdiction – scope of our decision

[7]  HW’s original complaint raised the privacy and offensive and disturbing content standards. In her referral to the Authority, HW further raised the fairness, accuracy and programme information standards.

[8]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standards raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.⁴

[9]  With respect to the three standards raised on referral to the Authority, we find:

• As the broadcaster has read in, and upheld, the complaint under the fairness standard in the first instance, we have jurisdiction to consider it and to assess the broadcaster’s ‘actions taken’ under this standard.
• The language in the original complaint was focused on concerns triggering the privacy, fairness, and offensive and disturbing content standards. No issues of accuracy were identified either explicitly or impliedly in the original complaint, so we cannot now consider the accuracy standard.
• Programme information is no longer its own standard, and comes within the offensive and disturbing content standard,⁵ so HW’s concerns can be adequately assessed under that standard.

[10]  Our decision is therefore limited to the fairness, privacy and offensive and disturbing content standards, which we consider adequately capture the key concerns raised in any event.

The standards

[11]  The fairness standard⁶ ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage. A key principle under the standard is that participants or contributors should 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.⁷

[12]  The privacy standard⁸ 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.⁹ However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.¹⁰

[13]  The purpose of the offensive and disturbing content standard¹¹ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.¹² The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

Our analysis

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

[15]  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.¹³

[16]  In this case, the public interest and value in the expression was high. The programme discussed an important issue (over-representation of Māori in the justice system), illustrated through case studies (of which the complainant’s experience was one). This issue was presented in a way that would provoke thought and discussion and made a valuable contribution to understanding Aotearoa New Zealand’s justice system.

[17]  On the other hand, the broadcast clearly caused harm to the complainant, who has described the distress and anxiety caused by watching her story and the re-enactment of her assault, without any warning or request for contribution. HW says it has caused ‘serious emotional harm’, and affected her work, mental health, and home life. She noted her children could have inadvertently watched the programme and potentially been harmed, and further notes that as a result of the broadcast she has had to deal with continuous contact from friends and clients who watched the broadcast, and who had been previously unaware of the assault.

[18]  The broadcaster has acknowledged this impact, as a result of the oversight in not informing the complainant of the programme prior to broadcast, and in our view has taken the situation seriously and made best efforts to provide a meaningful remedy for the unfairness to HW in this respect.

[19]  We have however found the discrete issue of broadcasting the hospital photos of HW resulted in a breach of her privacy and caused harm that outweighed the value in their expression. On this basis we uphold this one aspect of the complaint.

[20]  We explain our reasons below.

Fairness

[21]  When the Authority receives a complaint which the broadcaster has upheld in the first instance, our role is to consider whether the action taken by the broadcaster effectively addresses the breach.

[22]  The Authority has traditionally first commented on whether the broadcaster was correct in upholding the complaint in the first instance.

[23]  While acknowledging the public interest in the programme and the broadcaster’s right to freedom of expression, Sky was correct in our view to find the broadcast breached the fairness standard. Both Sky and the programme’s producer have accepted from the outset that HW ought to have been contacted prior to broadcast and informed of her participation/contribution to the programme.¹⁴ This is a fundamental principle of fair treatment of programme participants, which the broadcaster clearly appreciates and understands, and we commend its decision to consider the fairness standard although it was not specifically raised.

Action taken

[24]  Turning to the sufficiency of the action taken by the broadcaster in response to the breach, we assessed the severity of the conduct, the extent of the actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.¹⁵ We considered the following relevant to this assessment:

Severity of the conduct

• Bruce (who made the mistake in not informing HW) was acutely aware of the potential to cause further harm to victims and their families by bringing up old cases, and gave an interview to Stuff about the programme before it aired, advising the importance of informing victims and their family members about the inclusion of their stories in the show, so they could participate or choose not to watch the show should they wish.¹⁶ Being so aware of the potential for harm, more care arguably should have been taken by the production team to ensure HW was contacted.
• However, it is clear from the correspondence, and from Bruce’s reaction to learning of HW’s distress, that the failure to notify the complainant was a genuine mistake without malicious intent, rather than being intentional. This lessens the severity of the conduct.

Harm

• While this was an inadvertent error, it is clear it has resulted in harm to the complainant (as outlined at [17]).¹⁷

Action taken

• We consider Bruce, the Head of Sky Originals and the Sky Complaints Committee have all taken the breach very seriously and made genuine (and prompt) best efforts to remedy the harm:
  • On being notified of the oversight, Bruce immediately emailed and called HW to apologise and to explain.
  • Bruce took immediate action resulting in the programme being removed online so that the hospital photos could be edited out.
  • Bruce also contacted Discovery recommending the photos be labelled as sensitive and not relicensed (ie that they be embargoed from future use).
  • The Committee read in, and upheld, the fairness standard although it was not specifically raised – and responded to the complaint promptly, within 10 days (the broadcaster usually has 20 working days to respond).
  • The Head of Sky Originals and the Complaints Committee have also apologised to the complainant.
  • All of the apologies appear genuine and sincere and recognise the distress caused to the complainant as a result of the process failure.
  • Sky explained to HW how the error occurred, and advised Bruce was reviewing processes to ensure it did not happen again.

[25]  Taking into account the prompt and thorough response by the broadcaster, in particular the genuine apologies, immediate removal of the hospital photos from the online version, review of processes, request for prohibition on future uses of the photos, and reading in and upholding the complaint under the fairness standard, we concluded no further action is reasonably necessary to address the breach of fairness.

[26]  We therefore do not uphold the complaint with respect to the action taken by the broadcaster under the fairness standard.

Privacy

[27]  Generally, there are three criteria for finding a breach of privacy:

• The individual whose privacy has allegedly been interfered with was identifiable.¹⁸
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.¹⁹
• The disclosure would be considered highly offensive to an objective reasonable person.²⁰

Identification

[28]  HW’s name and photos of her were included in the broadcast, so she was clearly identifiable, satisfying the first criteria.

Information attracting a reasonable expectation of privacy

[29]  The key issue in this case, in our view, is whether the broadcast disclosed information over which HW had a reasonable expectation of privacy.

[30]  Relevant factors to consider in assessing whether there was a reasonable expectation of privacy include:²¹

• whether the content is in the public domain – a person will not usually have a reasonable expectation of privacy in relation to matters in the public domain, but the public nature of such matters is not definitive²²
• 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 (for example, are they a public figure)
• The passage of time was highlighted in previous Codes of broadcasting standards as a relevant factor in assessing whether information in the public domain has become private again.²³ While not included in the current Code, this factor’s relevance is consistent with common law privacy principles and this Authority has considered it in previous decisions.²⁴

[31]  HW identified the use of her story; the re-enactments; and the broadcast of the hospital photos as having breached her privacy. We consider each in turn in light of the above factors.

[32]  First, we did not consider the story of HW’s assault could be viewed as ‘private information’ to which a reasonable expectation of privacy might attach. While traumatic in nature and having occurred many years ago, information on HW’s assault and the murder of the backpacker (also covered in the programme) are matters of public record, were highly publicised at the time and have been the subject of ongoing media coverage in the years since. That coverage has, from time to time, included public comment given by HW, including as recently as 2020.²⁵

[33]  Nor did we consider the re-enactments, which appeared to be based on Bruce’s review of the relevant court documents, and were clearly dramatised, to be ‘private information’ about HW for the purposes of the standard.

[34]  That left us to consider whether the hospital photos of HW’s injuries amounted to private information over which the complainant had a reasonable expectation of privacy. We noted:

The nature of the photos

• The Authority has previously considered those in hospital receiving medical treatment could reasonably expect privacy, and images of their injuries amounted to sensitive information over which they had a reasonable expectation of privacy.²⁶
• The Authority has also previously found hospital images of the survivors of a fatal crash to be private information, despite them being available on a public Facebook page.²⁷
• HW was particularly vulnerable when the photos were taken (right after a serious assault, when she was only 17), and the photos showed her in a state of undress and her injuries in detail. The photos could therefore be categorised as intimate, sensitive, and traumatic in nature.²⁸

The availability (or otherwise) of the photos

• The photos were originally sourced from Police (as far as we can gather) and broadcast in 2009 as part of a 60 Minutes segment about the backpacker murder and HW’s assault. HW was interviewed as part of that programme and was a willing and active participant (although she has told us she could not recall watching the episode, or whether the photos were broadcast in it).
• From our investigations we could find no evidence the 60 Minutes episode has been rebroadcast to the public since 2009.
• Nor have we found anything to suggest the hospital photos of HW have been relicensed or otherwise publicly available since 2009.
• Bruce advised the photos were not included in the court records he obtained, and that he used the Judge’s minute allowing him access to those records and sentencing footage in order to apply to Newshub archives to relicense the photos. In other words, the photos were not publicly or easily accessible information, or a ‘matter of public record’ in the usual sense, at the time this programme was being produced.

Precedents concerning the passage of time

• In previous cases the Authority found six months²⁹; 13 months³⁰; six years³¹; and 17 years³² all insufficient timeframes for information on previous criminal history to become private again. However, those cases concerned convicted criminal offenders rather than victims.
• In another case, the Authority found 10 years sufficient for information previously in the public domain (footage of the complainant being arrested and details of his solvent abuse) to become private again.³³

[35]  We found this a challenging element of the complaint to decide, but ultimately found the hospital photos’ inherent sensitive and traumatic nature, and the passage of time since they had last been publicly broadcast, meant this information had become ‘private’ again, and the complainant could reasonably expect the photos would not be disclosed 13 years after the fact.

Highly offensive disclosure

[36]  Having found the photos to be private information, the last limb of the privacy test requires the ‘disclosure to be considered highly offensive to an objective reasonable person in the complainant’s position’. We were satisfied the disclosure of the photos would be highly offensive to someone in HW’s shoes, taking into account:

• The standard aims to protect people’s dignity, autonomy and mental wellbeing. The broadcast of highly sensitive photos of HW’s injuries, so many years after the fact, and without any prior warning, had the potential to significantly affect her mental wellbeing (and she has described the impact on her).
• HW was extremely vulnerable at the time the photos were taken, being only 17 years old, having just been seriously assaulted, and suffering head injuries from that attack.
• The Authority has previously found under this limb, ‘The privacy standard recognises the societal expectation that there are times and places where individuals are entitled to be left alone. [The Authority] considered being taken to hospital in the aftermath of a traumatic event to be one of those times.’³⁴
• HW is in a state of undress in the photos, and the photos themselves are graphic, showing HW’s hair full of blood, and cuts and further blood on her face.

[37]  Accordingly, we find the criteria satisfied in this instance. The final step is considering whether any defence is available to the broadcaster to the breach of HW’s privacy in relation to the hospital photos.

Defence – public interest

[38]  It is a defence to a privacy complaint to publicly disclose matters of legitimate public interest.³⁵ The public interest must relate to the disclosure of the particular information that is alleged to breach privacy.³⁶ There was clearly high value and public interest in the programme as a whole, and we consider HW’s story was relevant to include.

[39]  In our assessment of the public interest in the photos, we considered the guidance provided by the High Court in Andrews v Television New Zealand, in the context of a claim under the tort of invasion of privacy, is relevant. In that case the Court said:³⁷

In assessing an asserted defence of legitimate public concern, the Court will ordinarily permit a degree of journalistic latitude, so as to avoid robbing the story of its attendant detail, which adds colour and conviction.

[40]  The High Court also referred to a decision of the Supreme Court of California, Shulman & Ors v Group W productions Inc & Ors and said:³⁸

… [I]n some instances, while a particular event may be newsworthy, identification of the plaintiff as the person involved, or use of the plaintiff’s identifiable image, adds nothing of significance to the story. But the fact that the broadcast could have been edited to exclude some of the plaintiff’s words and images, will not be determinative. Nor is the possibility that a Court might find a differently edited broadcast more to its taste, or even more interesting. The Court does not sit as a censor.

[41]  In our view, the story could have just as powerfully been told without the hospital photos. The broadcast already presented a re-enactment of the assault on HW, so we consider the photos were unnecessary to illustrate the ‘modus operandi of the offender’ (as argued by the broadcaster) – especially given their sensitive nature and potential to adversely affect the complainant.

[42]  We therefore find the public interest defence is not available with respect to the broadcast of the hospital photos.

Defence – informed consent

[43]  Bruce is correct that consent is not a requirement to broadcast personal information. However, it is a defence to a privacy complaint that the individual has given informed consent to the disclosure.

[44]  Notwithstanding that HW may have previously agreed to participate in the 60 Minutes episode, and engaged with media over the years, it is clear there was no informed consent from HW to this particular broadcast or the use of the hospital photos.

Conclusion

[45]  While we recognise the value in the broadcast as a whole and the importance of investigating and analysing issues such as the overrepresentation of Māori in the justice system, the hospital photos of the complainant were not necessary for this overall purpose. Having found the complainant was identifiable, the hospital photos amounted to private information, and their disclosure was highly offensive, the Authority upholds the complaint that the broadcast of the hospital photos breached HW’s privacy and caused harm that justifies restricting the broadcaster’s freedom of expression.

Offensive and disturbing content

[46]  The purpose of this standard is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community values, in the context.³⁹

[47]  While clearly upsetting for HW personally, the broadcast was unlikely to cause disproportionate offence or distress to the general audience. The content (while violent) was within audience expectations for a programme of its genre and by this well-known producer. It was broadcast at an appropriate timeslot (8.30pm), with appropriate classification and advisory labels (16-VSLC) which clearly signalled violent and other content that may offend. It was not necessary (or required) for the broadcaster to specifically warn for the particular case studies included or the mention of the complainant. The audience had sufficient information and opportunity to exercise choice and control and decide whether to watch the programme.

[48]  Accordingly we do not uphold this part of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Sky of A Question of Justice on 23 October 2022 breached Standard 7 (Privacy) of the Code of Broadcasting Standards in New Zealand.

[49]  Having upheld one aspect of the complaint under the privacy standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our provisional decision and appropriate orders from the complainant and the broadcaster.

Submissions on provisional decision

[50]  On the Authority’s provisional findings, Sky submitted:

• Its removal of the hospital photos was not an admission of fault, but rather a remedy offered in the circumstances in response to HW’s shock and distress at seeing the broadcast without warning.
• The Judge’s minute allowing access to the footage suggested the Judge ‘saw no issue with the publication of the images and in fact, it would be in the public interest’. The producer considered their inclusion was in the public interest because they helped audiences understand the seriousness of the risk the assailant poses, and the assailant’s risk is a live issue as he was recently up for parole and HW had recently commented on the attack to media.

[51]  The complainant did not make any submissions on the provisional decision, but rebutted Sky’s assertion it was in the public interest to include the photos. Relevantly, she noted while she had spoken with media over the years, those comments had been of her own free will, and had never contained the hospital photos, which she maintained had become private again since their original broadcast in 2009; it was not in her interest to have these photos published.

Authority’s response to submissions

[52]  In response to Sky’s first submission, we amended our decision to remove a statement that noted Sky’s immediate removal of the photos suggested Sky accepted the offensiveness to HW of broadcasting the images outweighed the public interest in them. We agree such an inference could discourage broadcasters from taking mitigating steps upon becoming aware of a complainant’s concerns.

[53]  We do not agree with Sky’s second submission that the Judge’s minute allowing access to court records implied broadcasting HW’s photos would be in the public interest. The minute does not make any reference to the hospital photos and gives no indication the Judge reviewed the sentencing footage or turned their mind to whether that footage might contain sensitive images of HW. We also know from earlier correspondence that the Judge’s minute preceded access to the photos (which had to be obtained from another broadcaster’s archives). Further, we note it is the responsibility of the broadcaster, not the Judge, to ensure compliance with broadcasting standards.

[54]  We have dealt with the issue of recent media coverage on the assault, at paragraph [32] above. We did not consider any further amendments to the decision were required.

Submissions on orders

[55]  Sky submitted that publication of the decision would sufficiently acknowledge the breach and provide guidance to broadcasters, and that no further orders should be made. It noted:

• The breach was caused due to a genuine mistake, and one which the producer has sincerely apologised for.
• It acknowledged the harm to HW and advised it had acted immediately, taking all reasonable mitigating steps to remedy the matter, including taking the programme offline, removing the relevant photos, proactively reading in and upholding the complaint under the fairness standard, and reviewing its process to ensure future compliance with the standards.
• There was only one upheld aspect to the complaint.
• There was no repetition of the breach or previous warning by way of precedents.
• HW has spoken publicly about the attack as recently as 2020.
• A decision making no orders would be consistent with precedent; in similar recent cases where orders had been made, there had been misconduct on the part of the broadcaster (while in this case the breach was a mistake, for which the broadcaster was remorseful, and had taken immediate steps to remedy).

[56]  The complainant submitted maximum privacy compensation of $5,000 and a formal written statement of apology would be appropriate. These orders would reflect the serious personal impact, including emotional, mental and financial harm she has suffered, and extensive time expended resolving this issue.

Authority’s decision on orders

[57]  In determining whether orders are warranted and the type of order to impose, we consider the following factors:

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or the audience generally
• the objectives of the upheld standard
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[58]  Looking first at aggravating factors that may support an order in this case, we noted:

• The broadcast breached both the fairness and privacy standards (although the complaint concerning the action taken following the breach of the fairness standard has not been upheld).
• Sky did not uphold the privacy complaint in the first instance and appears to still maintain that the broadcast of the hospital photos was in the public interest.
• The broadcast of the hospital photos caused harm to HW: the photos were of a sensitive and traumatic nature, taken after a serious assault, and when the complainant was a young person (arguably attracting a higher degree of privacy).
• With respect to the objectives of the upheld standard, privacy is given special protection under the Broadcasting Act as the only standard about which a complaint may be brought directly to the Authority, and for which compensation is available.
• Bruce is experienced and well-resourced and was aware of the importance of informing victims about the inclusion of their stories in the programme but failed to do so: the breach was preventable.
• HW indicated she would have objected to the broadcast of the photos had she been informed.

[59]  On the other hand, there are a number of mitigating factors:

• Sky read in, and upheld, the complaint under the fairness standard in the first instance.
• Sky (and the producer) took HW’s concerns seriously and acted promptly upon becoming aware of them: immediately removing the photos from the broadcast, apologising to HW on multiple occasions, and acted promptly throughout the complaint.
• The majority of the privacy complaint was not upheld, nor was the remainder of the complaint in relation to the offensive and disturbing content, and fairness (regarding action taken) standards.
• In the past 10 years, Sky has had only one complaint upheld under the privacy standard.⁴⁰

[60]  Although the broadcaster has taken significant mitigating steps in this case in recognition of the complainant’s concerns, the fact remains that this broadcast has caused harm to HW. Having regard to HW’s submissions on the impact of the breach on their mental health and wellbeing, we consider something beyond mere publication of the decision is warranted, and that an award of privacy compensation would be an appropriate remedy.

Privacy compensation

[61]  The primary purpose of privacy compensation is to compensate the impacted individual for hurt and humiliation, loss of dignity and injury to feelings, loss of any benefit resulting from the breach, and pecuniary loss as a result of expenses incurred as a result of the privacy interference. This award is not intended to provide guidance to broadcasters, or to be punitive in nature (which an order for costs to the Crown might achieve).⁴¹

[62]  Given this objective, an award for privacy compensation does not require misconduct on the broadcaster’s part (although, as Sky notes, that has been a feature in some recent precedents); compensation awards have been made in previous cases in the absence of any misconduct.⁴²

[63]  The maximum amount of compensation we are able to award is $5,000.⁴³ In this case we concluded that an award of $1,000 compensation for the breach of privacy is appropriate, having regard to the following factors:

• We consider the level of harm overall to be towards the lower end of the scale and comparable with:
  • SW and Television New Zealand Ltd:⁴⁴ The Authority awarded $1,000 in privacy compensation following disclosure of footage from a prison search and other private facts (including the prescription drugs the complainant was taking).
  • WS and MediaWorks TV Ltd:⁴⁵ The Authority awarded $1,500 in privacy compensation following disclosure of photographs of the complainant when reporting on ‘sensitive and very personal family matters’.
  • MQ and Television New Zealand Ltd:⁴⁶ The Authority awarded $1,000 in privacy compensation following disclosure of the complainant’s solvent abuse.
  • Sky suggested this case was analogous to our decision in Rickard and Television New Zealand Ltd, where no award was made.⁴⁷ We do not agree. Part of the reasons no award was made in that decision was that the complaint was made by a third-party complainant and not the individuals whose privacy was breached, so the Authority was unable to determine the level of harm suffered.⁴⁸
• This broadcast showed sensitive photos of the complainant (which had become private again over time) when she was a young person to a wide audience. HW has submitted that the disclosure of these photos, caused emotional distress, and exposed her to ongoing contact, and questions about their attack from those who had viewed the broadcast.
• The complainant also identified some level of pecuniary loss as a result of the broadcast.
• Importantly in this case, Sky took the complainant’s concerns seriously and acted promptly to address them by taking steps to remove the photos and prevent any future re-broadcast, apologising to the complainant, responding quickly to the complaint, and reading in and upholding the complaint under fairness. This mitigated some of the harm experienced by HW and also prevented ongoing or repeated harm by ensuring the photos were no longer publicly available. 

Written apology

[64]  The complainant also sought a ‘formal written statement of apology for publishing my hospital photos for the public to see’.

[65]  We do not consider that would be appropriate in this case given the broadcaster and producer have already apologised to HW in writing and verbally a number of times which we consider is sufficient to show their acknowledgement of the harm caused. To the extent the complainant sought a public apology (ie broadcast to the public) we similarly consider it inappropriate taking into account the privacy issues involved and that we have suppressed the complainant’s details in this decision (an anonymised public apology is unlikely to achieve a meaningful remedy, or may risk drawing further attention to the matter or compounding the harm to HW).

Orders

Under section 13(1)(d) of the Act, the Authority orders Sky Network Television Ltd to pay $1,000 compensation to the complainant for the breach of privacy, within one month of the date of this decision.

The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above order has been complied with.

The order for costs is enforceable in the District Court | Te Kōti-ā-Rohe.

Signed for and on behalf of the Authority

Susie Staley
Chair
30 May 2023

Appendix

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

1  HW’s original complaint – 23 October 2022

2  Complaint by HW’s friend – 23 October 2022

3  Producer’s response to original complaint – 24 October 2022

4  HW’s response to Bruce – 25 October 2022

5  HW’s referral to the BSA – 27 October 2022

6  Sky’s decision on the complaint – 2 November 2022

7  Sky providing further comment and attachments – 22 November 2022

7.1  Attachment A – Timeline of correspondence

7.2  Attachment B – Producer’s letter

7.3  Attachment C – Producer’s attachments

7.4  Attachment D – Letter from Sky to BSA

8  HW’s response to Sky’s comments and attachments – 29 November 2022

9  Sky’s comments on classification – 21 December 2022

10  HW’s comments on the 60 Minutes episode – 13 January 2023

11  Sky’s comments on rebroadcasts of the 60 Minutes episode – 16 February 2022

12  Producer’s comments on accessing photos and media coverage – 27 January 2022

13  Transcript of 60 Minutes episode

14  Minute of Justice Lang allowing release of sentencing footage – 30 November 2020

15  Sky providing information on consent to original broadcast – 16 February 2022

16  Newshub providing information on 60 Minutes broadcast – 16 February 2022

17  Warner Bros. Discovery providing information on 60 Minutes broadcast – 21 February 2022

² Given the nature of this complaint, we have granted name suppression to the complainant and have referred to her throughout as ‘HW’
³ Guideline 8.2 states: Participants and contributors should 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
⁴ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁵ Standard 1, Code of Broadcasting Standards in New Zealand
⁶ Standard 8, Code of Broadcasting Standards in New Zealand
⁷ Guideline 8.2
⁸ Standard 7, Code of Broadcasting Standards in New Zealand
⁹ Commentary, Privacy, Code of Broadcasting Standards in New Zealand, page 19
¹⁰ Commentary, Privacy, Code of Broadcasting Standards in New Zealand, page 19
¹¹ Standard 1, Code of Broadcasting Standards in New Zealand
¹² Commentary, Offensive and Disturbing Content, Code of Broadcasting Standards in New Zealand, page 8
¹³ Introduction, Code of Broadcasting Standards in New Zealand, page 4
¹⁴ Guideline 8.2; also note guideline 8.10 which requires discretion and sensitivity in dealing with grief and distressing circumstances
¹⁵ Horowhenua District Council and Mediaworks Radio Ltd, Decision No. 2018-105 at [19]
¹⁶ ‘New local series A Question of Justice gives victims a voice’ Stuff (29 September 2022)
¹⁷ Madden and Mediaworks Radio Ltd, Decision No 2016-055
¹⁸ Guideline 7.1
¹⁹ Guidelines 7.3 and 7.4
²⁰ Guideline 7.8
²¹ Guideline 7.4
²² Guideline 7.5
²³ Code of Broadcasting Standards 2010 – Practice Note, page 5
²⁴ See: John Burrows and Ursula Cheer Burrows and Cheer: Media in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 364, and 388-389; Andrews v TVNZ [2009] 1 NZLR 220 (HC) at [30]; MQ and Television New Zealand Ltd, Decision No 2011-033; MM and TV3 Network Services Ltd, Decision No 1999-103, 1999-104
²⁵ Reference to relevant coverage omitted as it identifies the complainant – who has been accorded name suppression in this decision
²⁶ Guideline 7.4 and 7.6; and see: Rickard and Television New Zealand Ltd, Decision No. 2016-098 at [10]; Grant and Phillips and Television New Zealand Ltd, Decision No. 2019-013
²⁷ Rickard and Television New Zealand Ltd, Decision No. 2016-098 at [10]
²⁸ Guideline 7.4
²⁹ Turner and Television New Zealand Ltd, Decision No. 2004-188
³⁰ Walden and Television New Zealand Ltd, Decision No. 2006-061
³¹ Reekie and Television New Zealand Ltd, Decision No. 2009-026
³² Devereux and Television New Zealand Ltd, Decision No. 2015-027
³³ MQ and Television New Zealand Ltd, Decision No. 2011-033
³⁴ Grant and Phillips and Television New Zealand Ltd, Decision No. 2019-013 at [31]
³⁵ Guideline 7.9
³⁶ Guideline 7.9
³⁷ Andrews v Television New Zealand Ltd HC Auckland CIV-2004-404-3536, 15 December 2006 at [82]
³⁸ Andrews v Television New Zealand Ltd HC Auckland CIV-2004-404-3536, 15 December 2006 at [87]
³⁹ Commentary: Offensive and Disturbing Content, Code of Broadcasting Standards in New Zealand, page 8
⁴⁰ NS and Sky Network Television Ltd, Decision No. 2015-032
⁴¹ See IY and MediaWorks TV Ltd, Decision No. 2018-032 at [41]
⁴² See IY and MediaWorks TV Ltd, Decision No. 2018-032; and SW and Television New Zealand Ltd, Decision No. 2015-030
⁴³ Broadcasting Act 1989, s 13(1)(d)
⁴⁴ SW and Television New Zealand Ltd, Decision No. 2015-030
⁴⁵ WS and MediaWorks TV Ltd, Decision No. 2014-100
⁴⁶ MQ and Television New Zealand Ltd, Decision No 2011-033
⁴⁷ Rickard and Television New Zealand Ltd, Decision No. 2016-098
⁴⁸ Rickard and Television New Zealand Ltd, Decision No. 2016-098 at [26]