BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint an episode of Sunday breached the complainant’s privacy, and was unfair to the complainant, by broadcasting an image taken on the complainant’s property. The Authority found the complainant was not identifiable for the purposes of the privacy standard, and was not ‘referred to’ in the broadcast for the purposes of the fairness standard.

Not Upheld: Privacy, Fairness

The broadcast

[1]  An episode of Sunday, broadcast on 21 May 2023, featured stories on modern-day slavery, including the story of a Samoan man, who was the victim of slavery while working in orchards and vineyards in Hastings. During the story, the broadcast depicted generic footage of workers in vineyards, and at one point, featured a shot of two bags hanging in a tree. 

The complaint and background

[2]  JL complained that the broadcast breached the privacy and fairness standards, as the image of the two bags in a tree was taken 100 metres within the boundary line of JL’s property several years ago (without consent).

[3]  The image had been part of a collection of footage taken by TVNZ for an earlier story (also unconnected to the complainant – but in which additional details enabling identification of the complainant’s property were included). JL expressed concern that, through re-use of the image in this broadcast, TVNZ had not complied with the commitment it had made to JL after the original story, to not further use the footage taken on their property.

[4]  JL advised the failure by TVNZ to not uphold their previous commitment was a serious breach of trust, and to use the footage taken on JL’s property in a story about slavery was ‘appalling’ and made an inaccurate, and unfair connection between slavery and JL’s property and business.

[5]  JL also noted the potential for AI products to search and link data (ie the footage from both stories), which elevated the risk of JL and JL’s family being (by inference) unfairly linked to the slavery issues portrayed in the broadcast.

Jurisdiction

[6]  While the Authority understands the complainant’s concern that the broadcaster did not honour its previous undertaking to not use the footage, issues related to the failure to uphold agreements between parties do not come within the jurisdiction of the Authority. Our jurisdiction under the Broadcasting Act 1989 is limited to ‘broadcast’ content. Accordingly, our decision is limited to whether the broadcast that is the subject of this complaint – the Sunday programme on 21 May 2023 – breached JL’s privacy or portrayed JL unfairly.

The broadcaster’s response

[7]  In response to the complaint, TVNZ apologised, removed the image from its on-demand version of the story, and again undertook to not use the footage obtained on JL’s property. However, it did not uphold the complaint under the privacy or fairness standards on the basis:

• The footage shown in the broadcast of vineyard workers and the two bags were generic shots, included to give visual context to the story, and did not purport to be shots of the vineyard the person featured had worked in.
• ‘The bag shot alone, without any other detail, could not plausibly have led to [JL’s] identification’ and therefore no private information was released.  
• Because neither JL nor JL’s business took part, or were referred to in the broadcast, there are no grounds to support the conclusion the broadcast was unfair to JL.

The standards

[8]  The privacy standard¹ aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.² Accordingly, it states broadcasters should maintain standards consistent with the privacy of the individual.

[9]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[11]  As a starting point, we considered the right to freedom of expression. The exposure of modern-day slavery in Aotearoa New Zealand and consideration of possible law reform in this area carried a high degree of public interest. It was a legitimate issue for Sunday to draw attention to, and the item carried high value in terms of the exercise of the right to freedom of expression. This value must be weighed against the level of harm alleged to have been caused by the broadcast. The harm alleged in this case is to the complainant’s privacy interests, by having footage of their vineyard broadcast without their consent, and to their reputation through potentially being associated with modern-day slavery.  

[12]  This was an important current affairs piece and we must only intervene and limit the right to free expression, and the broadcaster’s right to present the piece in the way it did, if that is reasonable and justified. Overall, while we have sympathy for the complainant’s concerns, we have not found harm under either standard at a level that warrants us intervening and imposing such a restriction.

Privacy

[13]  Generally, there are three criteria for finding a breach of privacy under the standard:

• The individual whose privacy has allegedly been interfered with was identifiable.⁵
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁶
• The disclosure would be considered highly offensive to an objective reasonable person.⁷

[14]  We also note guideline 7.7 to the privacy standard, which states:

Broadcasters should not broadcast content obtained through intentional intrusion upon a person’s solitude or seclusion in a way that is inconsistent with a reasonable expectation of privacy.

[15]  As the privacy standard applies only to identifiable individuals,⁸ we first considered whether JL was identifiable in this broadcast.

[16]  The test is whether the individual affected was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁹ An individual may be identifiable even if they are not named or shown.¹⁰ They may also be identifiable if only a small number of people could recognise them from the information provided, if not all of those people were aware of the full details disclosed in the broadcast.¹¹

[17]  On reviewing the broadcast, we found JL was not identifiable from the footage, as the image of the tree and the bags contained no identifying or unique features that would allow an audience member to identify the property or the property’s owner.

[18]  We considered the complainant’s argument, raised in support of their request for name suppression, that AI systems might enable the searching and linking of the broadcast with TVNZ’s original story (which included further identifying features).

[19]  The privacy standard recognises that in some cases ‘jigsaw identification’ may be possible through a combination of features inside, and sometimes outside, the broadcast.¹² However, we consider the likelihood of anyone using AI to connect the particular shot used in this Sunday broadcast to the earlier story, is too remote to reasonably find this could have resulted in jigsaw identification – or to expect the broadcaster to anticipate such a risk, from the use of a single shot which did not otherwise contain any identifying features. We also note in this respect any risk was likely further reduced because:

• The broadcast did not suggest the relevant footage – which was used essentially as a background image or visual wallpaper – to have come from the site where the relevant individual was enslaved (lessening any potential interest in undertaking such an AI search).
• The earlier broadcast footage of the complainant’s property was removed from TVNZ’s website by the broadcaster following JL’s complaint about that broadcast.

[20]  Finally, we acknowledge and sympathise with JL’s legitimate concern that they did not want footage taken on their property to be used as background in a story about modern-day slavery. Had the complainant been identifiable, we may well have upheld the complaint under guideline 7.7 for breach of JL’s reasonable expectation of solitude and seclusion on their property (noting the footage was obtained 100 metres within the boundary line of the complainant’s property, without the complainant’s consent).¹³

[21]  However, without the complainant being identifiable, the first criterion is not met and there can be no breach of the privacy standard.

Fairness

[22]  The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.

[23]  The first question for the Authority is whether the broadcast ‘referred to’ JL. In our view it did not. The image of a tree on JL’s property (but which was not identified as being on JL’s property) cannot be construed as a reference to JL. In these circumstances, the fairness standard is not applicable to the issues raised by the complainant.

Concluding remarks

[24]  Overall, in the circumstances described above, we do not consider any harm potentially caused by the use of the footage was sufficient to outweigh the right to freedom of expression or to justify our regulatory intervention.

[25]  We are also conscious that the broadcasting standards regime provides a means of recourse when broadcasters fail to respond to complaints in a satisfactory manner.¹⁴ While we make no comment on the broadcaster’s response to its previous use of this footage, in the present situation, the broadcaster has acknowledged the error, explained how it arose, apologised, taken further steps to remove such footage from its systems and reviewed its processes to avoid it happening again.
 

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Tupe Solomon-Tanoa’i
Member
30 August 2023  

  
Appendix

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

1  JL’s direct privacy complaint to the Authority – 26 May 2023

2  Letter from TVNZ to JL re: use of footage – 26 May 2023

3  Letter from TVNZ Executive Editor to JL re: use of footage - 26 May 2023

4  JL’s further comments – 31 May 2023

5  JL providing further information– 2 June 2023

6  JL’s formal complaint to TVNZ under fairness standard – 11 June 2023

7  JL’s further comments re: TVNZ’s removal of footage – 16 June 2023

8  TVNZ agreeing to address privacy and fairness concerns in one decision – 16 June 2023

9  TVNZ’s decision on complaint - 22 June 2023

10  JL’s further referral to the Authority - 23 June 2023

11  VNZ’s further comments - 13 July 2023

12  JL’s further comments - 17 July 2023

13  TVNZ’s final comments – 15 August 2023

14  JL’s final comments – 16 August 2023

¹ Standard 7, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at page 19
³ Standard 8, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁵ Guideline 7.1
⁶ Guideline 7.3
⁷ Guideline 7.4
⁸ Guideline 7.2
⁹ Guideline 7.2
¹⁰ Guideline 7.2
¹¹ DX and Television New Zealand Ltd, Decision No. 2021-160 at 21
¹² Guideline 7.2
¹³ See: JK and Māori Television Service, Decision No. 2020-088 at 30] - [33]; Russek and Television New Zealand Ltd, Decision No. 2007-016 at [29] and [30]; and TJ and Television New Zealand Ltd, Decision No. 2013-092 at [18] - [21]
¹⁴ Foster and RDU 98.5FM Limited, Decision No. 2021-035 at [7]