BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

On 13 March 2018, an item on Newshub reported on allegations of sexual assault and harassment at a Young Labour camp. The item included photos of the camp attendees, sourced from public social media accounts, with no masking or blurring. The Authority upheld a direct privacy complaint from IY, who was featured in the photos, that this item breached their privacy. The Authority noted the value of the broadcast in reporting on the response of the Labour Party to the allegations, but emphasised the high level of potential harm that could be caused to the individuals involved. The Authority found that, while the photos were available in the public domain at the time of broadcast (they were removed from social media platforms following the allegations being made public), they were shown during a story reporting on alleged sexual assault, which changed the quality of the information and the context in which the photos were made available to the public. The complainant had a reasonable expectation of privacy over their image in this context, and the disclosure of their image, in connection with the allegations reported on, caused significant distress and was highly offensive. The Authority commented that care needed to be taken by broadcasters when using social media content, particularly in sensitive circumstances.

Upheld: Privacy. Orders: Section 13(1)(d) $3,000 privacy compensation; Section 16(4) $2,000 costs to the Crown.

Introduction

[1]  On 13 March 2018, an item on Newshub reported on allegations of sexual assault and harassment at a Young Labour camp. It was alleged that, during the camp, a man had assaulted or harassed four young people. The item included photos of the fifty or so camp attendees, without their faces masked or blurred, sourced from the Prime Minister’s official Instagram account and from a Labour MP’s public Facebook page. We understand the photos were subsequently taken down from social media once the story broke.

[2]  The complainant, who was an attendee at the camp and featured in the photos, complained directly to the Authority that this item breached their privacy, through the broadcast of their photo without any masking or blurring to protect their identity. The issue raised in the complaint is whether the broadcast breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[3]  Given the sensitive nature of this complaint, the ongoing criminal investigation and the circumstances surrounding the broadcast, we have granted name suppression to the complainant and in this decision refer to them as ‘IY’.

[4]  The item was broadcast on 13 March 2018 on Three at 6pm. As part of our consideration of this complaint, we have viewed a recording of the broadcast and have read the correspondence listed in the Appendix.

[5]  This complaint raises important issues about privacy, in a world where social media intersects with journalism. The issues raised by the complainant highlight the responsibility that broadcasters have to meet broadcasting standards when exercising their right to freedom of expression and using social media content.

The standard

[6]  The privacy standard (Standard 10) reflects the high value our society places on privacy. It 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.

[7]  In deciding whether the standard has been breached, we consider three criteria:

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable;
• whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy; and 
• whether the disclosure could be considered highly offensive to an objective reasonable person.¹

The parties’ submissions

[8]  IY submitted:

• While a number of people were shown in the photos, it was reasonable for viewers to assume that the victims and the perpetrator were present.
• As a result of the broadcast, the complainant and their family received 57 messages within 24 hours, asking if they were involved and if they were okay. The complainant was also ridiculed in some messages, causing significant anxiety and distress.
• The photos were removed from social media platforms following the allegations being made public and other media outlets did not broadcast similar photos. 
• Multiple requests were made to MediaWorks to cease broadcasting the images unblurred.

[9]  In response, the broadcaster MediaWorks submitted:

• The photos were sourced from publicly viewable social media accounts.
• Each photo featured a large number of camp attendees and did not focus on any one individual. 
• No private information was disclosed during the broadcast.
• Once Newshub’s management was made aware of the complainant’s concerns, the photographs were blurred for subsequent broadcasts.

Our analysis

Freedom of expression and public interest

[10]  This was an important broadcast, which reported on a serious incident occurring at an event organised by Young Labour and attended by members of the Labour Party. The story raised important questions about how the situation was handled by Party leadership, including why parents of the victims and the Prime Minister were not informed, and what level of support was offered to the victims and to the alleged offender. How the Labour Party responded to the allegations, and the steps that were taken to address the issue, was in the public interest.

[11]  This type of reporting, which can be critical of political parties, is a valuable exercise of the broadcaster’s right to freedom of expression, particularly in a democratic society such as ours.

[12]  On the other hand, the exercise of that freedom comes with responsibilities. The broadcasting standards are important beacons, which guide how stories like this should be reported in order to balance the public interest with any potential harm that could be caused. These were serious allegations and the young people at the centre of the story were extremely vulnerable. The story, which was broken on 12 March 2018 by online news and current affairs platform Newsroom, attracted high levels of publicity and media attention, particularly given its political angle. We also note that the footage published by Newsroom was pixilated so that the individuals featured were anonymised.

[13]  Reporting on allegations of sexual assault can have a particularly devastating impact on the victims. In these circumstances, it is essential for broadcasters to show care, sensitivity and respect towards the subject matter and towards the people involved.

[14]  Under New Zealand law, every victim of sexual assault has automatic, permanent name suppression. Unless they choose to waive that statutory right by applying to the court to have their name published, they can never be identified.

[15]  In this case, we consider the potential harm to the complainant, through the broadcast of their photo in connection with the allegations reported, outweighed the broadcaster’s right to freedom of expression and the public interest in the story. Upholding the privacy complaint on this basis in our view represents a reasonable and justified limit on the right to freedom of expression. While the item was in the public interest, there was a high risk that harm could be caused to the individuals who were identified. In these circumstances, the broadcaster should have considered whether it was necessary to identify them in order to serve the public interest.

Identification

[16]  The test under the privacy standard is whether the individual was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.²

[17]  While the photos complained about were photos of a ‘crowd’, they showed a small crowd and all of the young people featured in the photos were identifiable. The photos were shown on screen for three to five seconds each and the complainant can be clearly seen in each photo. Our view is that IY would have been identifiable beyond those already aware of the alleged sexual assault occurring at the camp.

Disclosure of private information or material

[18]  The next question for us to consider is whether the broadcast disclosed any private information or material about the complainant, over which they had a reasonable expectation of privacy. A person will not usually have a reasonable expectation of privacy over information or material that is in the public domain, for example, where there has been widespread media coverage or where the material is publicly available on social media platforms. However, in some cases, they may have a reasonable expectation of privacy in relation to information or material even though it is in the public domain.³ Just because an item is available on social media, does not necessarily mean it can or should be broadcast.⁴

[19]  The photos broadcast during this item were sourced from publicly available social media accounts. However broadcasters must still consider whether the republication of such material could cause harm to those featured in the material, or others impacted by the publication, and if so, whether any steps should be taken to mitigate the risk of harm. As we have said in a previous decision:⁵

…the publication of content on one platform does not automatically justify further republication on another platform, to a national audience, without consideration of the standards that apply. Where republishing of social media content does occur, any privacy issues that arise should be reconsidered, and expectations around publication of content on the new platform considered afresh.

[20]  This is particularly the case where the content reveals sensitive information about an individual, exposes them to ridicule or contempt, or if they are in a vulnerable situation.⁶

[21]  In this case, the complainant’s attendance at the camp may have been public knowledge to some. Their political affiliation or support of the Labour Party may also have been known to friends or family. The photos, in particular, were shared on the social media accounts of individuals with a high public profile, for the purpose of sharing with a wide audience, and with no privacy settings applied. The photos that were broadcast, and the complainant’s attendance at the camp, was information that was therefore already in the public domain.

[22]  However, the photos were then rebroadcast in the context of a report about allegations of sexual assault. What were initially photos of an enjoyable occasion became photos that connected each individual featured in the photos to the allegations of sexual assault. For the complainant, the fact that their image was shared in the context of a story about sexual assault changed both the status of the photos and their expectation of privacy over their image.

[23]  The fact that there had been allegations of sexual assault occurring at the camp therefore changed the quality of the information and the context in which the publicly available images were shown.

[24]  While there were a number of individuals shown in the photos, each individual was then associated with the allegations of sexual offending. It was reasonable for viewers to infer that the alleged victims were present in the photos, and as we have noted above, every victim of sexual assault in New Zealand has automatic name suppression. The complainant was clearly identifiable and we are told they have been questioned by friends and acquaintances about their involvement.

[25]  These were serious allegations of offending involving vulnerable young people and multiple victims. In these circumstances, and despite the information or material being in the public domain at the time of broadcast, we find that the complainant had a reasonable expectation of privacy over their image and potential association with the alleged sexual assault.

Highly offensive disclosure

[26]  Where private information or material has been disclosed, over which the featured individual had a reasonable expectation of privacy, the next question for us to consider is whether this disclosure could be considered highly offensive to an objective reasonable person in the position of the person affected.

[27]  Each individual featured in these photos was identified in the broadcast as a potential victim of sexual assault, or the alleged perpetrator. These individuals were young people who were in a particularly vulnerable position, and whose images were shared in the context of a report about a sensitive issue.

[28]  The disclosure of the complainant’s photograph without any masking of identity, in the context of the item, could therefore reasonably be seen as highly offensive to someone in IY’s position. The disclosure of IY’s image, in the context of a report about alleged sexual assault, was sensitive. As a result of the broadcast, the complainant has submitted that they have suffered significant anxiety and distress.

[29]  We therefore find that a breach of the complainant’s privacy occurred, subject to any defences that might be available to the broadcaster.

Defences

[30]  Guideline 10f to the privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest. Guideline 10g to the privacy standard states that it will not be a breach of privacy where the person concerned has given their informed consent to the disclosure.

[31]  While we have recognised the public interest in this item, we consider that the public interest could have been served without identifying the young people who attended the camp. MediaWorks could have mitigated the risk of harm, by blurring or masking the faces of those shown in the photos.

[32]  The complainant did not consent to their image being broadcast during this item and advised us that multiple requests were made to the broadcaster to blur or mask the photos.

[33]  We therefore find neither defence was available to the broadcaster in this case.

Name suppression

[34]  As we have noted above, due to the nature and circumstances of this complaint, we have suppressed the complainant’s name and other identifying information in our decision.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of Newshub on 13 March 2018 breached Standard 10 of the Free-to-Air Television Code of Broadcasting Practice.

[35]  Having upheld this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

The complainant’s submissions

[36]  IY submitted:

• Privacy compensation of $4,000 would be appropriate, given the cost of the complainant taking leave from part-time employment and from education for an extended period, and cancelling a planned and paid for educational trip.
• IY also emphasised the significant impact this broadcast had on their mental health and emotional wellbeing. This broadcast caused undue stress to the complainant, which continued when, as a result of the broadcast, they were contacted by numerous viewers about the incident.
• While IY did not consider it was necessary for the Authority to make an order of costs to the Crown, IY was open to this if it was deemed appropriate.
• It would not be appropriate for the broadcaster to broadcast a statement summarising the decision, given the circumstances of the complaint.

The broadcaster’s submissions

[37]  In response to the Authority’s provisional decision, MediaWorks submitted that the complainant was identified only as an attendee of the camp, among many others who had attended. In MediaWorks’ view, this was not private information over which the complainant could have a reasonable expectation of privacy. If the Authority considered an order of privacy compensation appropriate, MediaWorks requested that due weight be given to these submissions.

[38]  MediaWorks further submitted that:

• An order of costs to the Crown was not warranted.
• A broadcast statement would not be appropriate, as it would draw further attention to the private matter at the heart of the complaint. Newshub’s Chief News Officer was willing to provide a written apology to IY.

Our decision on orders

[39]  Where a complaint is upheld, the Authority may make orders, including, in the case of a privacy breach, directing the broadcaster to pay compensation to the person whose privacy has been breached, to broadcast and/or publish a statement, and/or pay costs to the Crown.

Privacy compensation

[40]  Having upheld IY’s complaint, and taking into account IY’s submissions on the impact of this breach of privacy on their finances, mental health and wellbeing, we consider it is appropriate to make an award of privacy compensation. The maximum amount of privacy compensation we are able to award is $5,000.

[41]  In determining the amount to be awarded to IY, we have had regard to the following factors:

• 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 be punitive in nature, as an award of costs to the Crown will stand as a punitive award in response to the conduct of the broadcaster.
• The broadcast identified the complainant, a highly vulnerable young person, to a wide audience in the context of a news report about a highly sensitive matter. The complainant has submitted that the disclosure of their identity in these circumstances caused emotional distress and exposed them to ongoing contact, questioning and even ridicule from those who had viewed the broadcast.
• The complainant also identified that pecuniary loss has been incurred as a result of the broadcast.
• MediaWorks has not acknowledged the issues and in its submissions on the provisional decision, did not accept the Authority’s finding or offer any form of compensation or remedy to the complainant, other than an apology. This further extended the complaints process and aggravated the harm experienced by IY.
• We acknowledge MediaWorks’ submission that the complainant was one of many attendees at the camp identified during the broadcast. Notwithstanding our view that a privacy breach occurred, we recognise that IY was not singled out in the broadcast.

[42]  Having regard to the above factors, as well as the Authority’s previous compensation awards, we find that an award of $3,000 in compensation for the breach of privacy is appropriate.

Costs to the Crown

[43]  The Authority may also make an award of costs to the Crown, having regard to various factors including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. The maximum amount of costs to the Crown we are able to award is $5,000.

[44]  In determining whether costs to the Crown are warranted, we have taken into account the following factors:

• An award of costs to the Crown will reflect the seriousness of the conduct by the broadcaster. In this case, we consider that the breach was at the medium to serious end of the spectrum. As we have said above, the breach of privacy related to a highly sensitive matter involving young people in a particularly vulnerable situation. The broadcast of these images exposed the complainant and multiple other individuals, and the victims in particular (who, as we have noted, would be granted name suppression under New Zealand law), to harassment and potential significant emotional distress.
• Multiple requests were made to MediaWorks at the time of broadcast to cease broadcasting the images unmasked or unblurred, with action taken only after the photos had been broadcast multiple times. MediaWorks therefore had an opportunity to address the breach at an early stage but did not do so.
• In its submissions on the provisional decision, the broadcaster did not accept the Authority’s findings and to date it has not acknowledged the issues raised by this particular broadcast. We consider the broadcaster’s actions have shown a disregard for the privacy interests of the vulnerable young people at the centre of this story.

[45]  In these circumstances, we consider that an order of $2,000 costs to the Crown is appropriate.

Broadcast statement

[46]  We agree with the parties that a broadcast statement would not be appropriate in this case. The broadcaster has offered to provide the complainant with a formal written apology. Given the complainant’s submissions detailing the impact this experience has had on them, we consider this would be an appropriate step.

Orders

1. Under section 13(1)(d) of the Act, the Authority orders MediaWorks TV Ltd to pay $3,000 compensation to the complainant for the breach of privacy, within one month of the date of this decision.

2. Under section 16(4) of the Act, the Authority orders MediaWorks TV Ltd to pay to the Crown costs in the amount of $2,000 within one month of the date of this decision.

The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich, Chair
5 September 2018

Appendix

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

1     IY’s direct privacy complaint to the Authority – 30 March 2018
2     IY’s further comments – 12 April 2018
3     MediaWorks’ response to the complaint – 8 May 2018
4     IY’s final comments – 10 May 2018
5     MediaWorks’ confirmation of no further comment – 24 May 2018
6     MediaWorks’ submissions on the provisional decision – 3 August 2018
7     IY’s further comments in response – 13 August 2018
8     MediaWorks’ submissions on orders – 24 August 2018
9     IY’s submissions on orders – 27 August 2018

¹ Guidelines 10a and 10b

² Guidance: Privacy, 2.1, Broadcasting Standards in New Zealand Codebook, page 59

³ Guideline 10d and Guidance: Privacy 3.1, Broadcasting Standards in New Zealand Codebook, page 59

⁴ Rickard and Television New Zealand Ltd, Decision No. 2016-098 at [24]. See also Use of Social Media Content in Broadcasting: Public and Broadcaster Perspectives, Evans and Kuehn, July 2017, page 71. See also Using Third Party Content, Guidance Note by Broadcasters, for Broadcasters, June 2018

⁵ Rickard and Television New Zealand Ltd, above, at [24]

⁶ Use of Social Media Content in Broadcasting, above, page 71