BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A 1 News item reported on an incident involving All Black Aaron Smith. Two witnesses claimed that while on official All Black business, Mr Smith used a disabled toilet in Christchurch Airport for a ‘sexual encounter’ with a woman who was not his partner. The item briefly showed a photo of Mr Smith and his partner. The Authority did not uphold a complaint that the item breached Mr Smith’s partner’s privacy. Information about her identity and her relationship to Mr Smith was publicly known and had already been the subject of widespread media coverage in relation to the incident prior to the broadcast. This was therefore not information over which she had a reasonable expectation of privacy. The 1 News item also disclosed less information about Mr Smith’s partner than other media outlets had already disclosed. The Authority however noted that it does not automatically follow that the partners and families of public figures are also public figures, and due consideration ought to be given to their individual privacy interests.

Not Upheld: Privacy

Introduction

[1]  A 1 News item reported on an incident involving All Black Aaron Smith. Two witnesses claimed that while on official All Black business, Mr Smith used a disabled toilet in Christchurch Airport for a ‘sexual encounter’ with a woman who was not his partner. The item featured a photo of Mr Smith and his partner (A), while the reporter in a voiceover stated, ‘[Mr Smith] is coming home from South Africa to face the music with his girlfriend’. The item did not name A.

[2]  John Hyde complained that the item breached A’s privacy.

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

[4]  The item was broadcast during the 6pm news on 6 October 2016 on TVNZ 1. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach A’s privacy?

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

The parties’ submissions

[6]  Mr Hyde submitted the item breached A’s privacy because:

• It was unnecessary to feature a photo of A, as she was not involved in the incident and had no relevance to the story.
• The availability of A’s name and image in other media articles did not necessarily mean her identity was widely known.
• As a result of the item, a much larger audience became aware of A’s identity and image.
• ‘TVNZ is clearly asserting that because others have published [A’s] name and picture [it] is okay for them to follow suit. A breach of privacy is a breach of privacy’.

[7]  TVNZ submitted in response:

• The information that A was Mr Smith’s partner was widely known before, and at the time of, the broadcast.
• Information about the incident was also in the public realm at the time of broadcast and discussed on numerous news platforms before, or around the same time, as the 1 News item.
• These news platforms have a large reach in terms of audience – for example, the Stuff website attracts 1,905,000 unique visitors per month and the NZ Herald website attracts 1,536,000 per month. TVNZ noted that while television ratings do not measure unique views, the 1 News bulletin subject to complaint attracted 108,000 viewers.
• 1 News had respected A’s request, issued via a statement from the New Zealand Rugby Union around the time of the broadcast, for her and her family not to be contacted by the media.
• Neither A, nor her family, made a formal complaint about this item.

Our analysis

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

Was A identifiable?

[9]  When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. A was clearly identifiable during the item, as a photo of her was shown.

Did the broadcast disclose private information or material about A?

[10]  The next step is to determine whether the broadcast disclosed any private information about A. To constitute ‘private information’ there must be a reasonable expectation of privacy in relation to the information or material. Factors to consider include, but are not limited to, whether the information or material is not in the public domain; and/or it is sensitive in nature; and/or the individual would reasonably expect it would not be disclosed.²

[11]  The following information was disclosed about A during the item:

• A’s image (specifically, a photo of her and Mr Smith)
• that A was Mr Smith’s partner
• that Mr Smith was ‘coming home to face the music with [her]’.

[12]  The item did not disclose A’s name.

[13]  In general, a person will not usually have a reasonable expectation of privacy in relation to matters of public record, including, for example, matters that have recently been given widespread media coverage.³ A’s identity, image and relationship to Mr Smith in the context of his alleged indiscretion, was information that was already in the public domain at the time of the 1 News broadcast.

[14]  There was widespread media coverage, both nationally and internationally, of the incident involving Mr Smith. Several media outlets referred to A, publishing her name and the same photograph used in the 1 News item. The photograph of A and Mr Smith itself was not embarrassing or distressing and was taken before the incident. It appears to have been sourced from a public Facebook page. A was also referred to by first name in the press conference Mr Smith held about the incident. In other words, the information disclosed about A during the 1 News item was available, and easily accessible, to members of the public prior to the broadcast.

[15]  A’s identity as Mr Smith’s partner was also publicly known some time before the broadcast in question. For example, public social media posts on official All Blacks pages contain images of the couple. We also note that subsequent to the incident and the 1 News broadcast, A and Mr Smith were pictured together publicly and were the subject of additional media coverage.

[16]  The Authority’s privacy guidance recognises that in some circumstances, an individual may have a reasonable expectation of privacy even in relation to information already in the public domain.⁴ However, while we acknowledge that this news item dealt with a sensitive personal relationship matter between A and her partner, we do not consider this exception applied here. TVNZ did not disclose any additional information about A that was not already widely disseminated, and disclosed less information about her than other media outlets had already disclosed. The reference to A was brief in the context of the 1 News item, which focused on Mr Smith’s actions, and did not name her. There is also no suggestion that 1 News ignored A’s request not to be contacted by media, or tried to contact her.

[17]  Overall, while we have sympathy for A’s position, the item must be seen in the context of the wider situation at the time of broadcast, where there was other, more detailed, exposure of A and Mr Smith. Given the information disclosed about A was already in the public domain at the time of broadcast, we do not uphold the complaint that the 1 News item breached A’s privacy.

General comments

[18]  Notwithstanding our finding that no breach of privacy occurred, we wish to make some general comments about A’s involvement in the item. It is well established that public figures, and others who seek publicity, generally have lower reasonable expectations of privacy in relation to matters pertaining to their public roles.⁵ Mr Smith, as a high-profile All Black, is a public figure. However, it does not automatically follow that the partners or families of public figures are also public figures. While allegations about a public figure may be considered newsworthy, broadcasters ought to give due consideration to the protection of the individual privacy interests of the public figure’s partner and family and others close to them.

Name suppression

[19]  Although we have not found any breach of privacy, having regard to the nature of the complaint and to avoid compounding any harm caused to A, we have suppressed her name in this decision. We have also avoided referencing other media coverage which identifies A, for this reason.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
19 January 2017

Appendix

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

1      John Hyde’s direct privacy complaint to the Authority – 7 October 2016
2      TVNZ’s response to the Authority – 4 November 2016
3      Mr Hyde’s final comments – 14 November 2016
4      TVNZ’s final comments – 15 November 2016
5      TVNZ’s response to the Authority’s request for further information – 9 December 2016

¹ Guidelines 10a and 10b
² Guideline 10c
³ Guidance: Privacy, 3.1
⁴ As above
⁵ Guidance: Privacy, 4.1