BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Checkpoint reported that the Sky World building, a multi-storey entertainment complex in central Auckland, had not been issued with a warrant of fitness in 435 days, and that the building remained open throughout that time, with the knowledge of Auckland Council, despite critical fire safety compliance issues. The item (which was broadcast on free-to-air television as well as on radio) included footage of the reporter attempting to contact the owner of the complex, ‘A’, visiting his home and offices, where he spoke to two employees, ‘X’ and ‘Y’. JNJ Management made a direct privacy complaint to the Authority, submitting that these segments breached the privacy of A and his employees. The Authority did not uphold the complaint, finding that A’s home was filmed only to the extent visible to the public and he was filmed in a public place at Sky World so he did not have a reasonable expectation of privacy there. No private information or material was disclosed about the employees during the programme, and they did not have an interest in solitude or seclusion, given the workplace was accessible to members of the public to seek an appointment. Further, the employees were informed of the reporter’s identity and the purpose of the reporter’s interview, and therefore had an opportunity to object to filming at that time.

Not Upheld: Privacy

Introduction 

[1]  An item on Checkpoint reported that the Sky World building, a multi-storey entertainment complex in central Auckland, had not been issued with a warrant of fitness in 435 days, and that the building remained open throughout that time, despite critical fire safety compliance issues. The item included footage of the reporter attempting to contact the owner of the complex, referred to in this decision as ‘A’.

[2]  This footage showed the reporter doorstepping¹ A’s home and his offices at Sky World, in an attempt to seek his comment in response to the story. While no one answered the door at A’s home, the reporter named the suburb, filmed the area before the front door, and the street number was visible as the reporter stood outside the house. At A’s offices, the reporter was filmed speaking to two employees, referred to during the item by their first names (but here referred to as ‘X’ and ‘Y’), and approached and questioned a man ‘fitting [A’s] description’ leaving his offices. The man denied he was A and said he was only visiting.

[3]  JNJ Management made a direct privacy complaint to the Authority, submitting that these segments of the item (at A’s home and offices) breached the privacy of A and his employees.

[4]  Checkpoint is a multi-media programme broadcast on radio, streamed live on RNZ’s website and also broadcast on free-to-air television and pay television. As the complaint is concerned primarily with the visual material filmed by RNZ, the issue we have considered is whether the broadcast breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast, as well as unedited footage of a conversation between X and the reporter, and have read the correspondence listed in the Appendix.

Overview of findings and freedom of expression

[6]  Our first consideration is the value of freedom of expression, and in this case in particular, the high value and public interest in investigative journalism concerning public safety issues. The item reported on significant safety risks at a frequently visited building in Auckland, New Zealand. Whether the building was safe for visitors and tenants, and whether any action was being taken in response by the building owner or authorities, was a matter of legitimate concern to New Zealanders. The media holds an important role in this respect, holding businesses and public bodies to account, particularly where their action or inaction could result in harm to members of the public. The media’s right to provide information and to comment on matters of public health and safety, even if those comments could be seen as critical, is fundamental to ensuring citizens are kept informed about matters of public importance.

[7]  Our task is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast. Here, JNJ Management has submitted that the broadcast breached the privacy of the individuals involved in a manner that was highly offensive. We may only interfere and uphold the complaint if we consider the limitation on the right to freedom of expression is reasonable and justified and the level of harm caused outweighs the importance of that right.²

[8]  Overall, we have found that this broadcast was not in breach of the privacy standard. Our view is that no private information or material was disclosed during the item, about which the individuals involved had a reasonable expectation of privacy. Further, the parties did not have an interest in solitude or seclusion, given the footage of A’s home and the employees at JNJ Management’s offices were filmed only to the extent already visible to members of the public.

[9]  Given the high level of public interest in the subject matter of this broadcast, it was important for viewers to be provided with JNJ Management’s response to the issues raised, and to understand whether any action was being taken. Given the reporter was unable to seek a meaningful response from A, it was also in the public interest for viewers to see the attempts made to contact him.

[10]  Finally, while we have not upheld the complaint, given the nature of the complaint we have determined it is appropriate to suppress the involved individuals’ names in our decision.

Did the broadcast breach A’s, X’s or Y’s privacy?

[11]  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. It is a defence to a privacy complaint where matters of legitimate public interest are disclosed.

The parties’ submissions

[12]  JNJ Management submitted:

• The reporter entered A’s private property and filmed it in detail. A felt that his right to privacy was gravely intruded where he should feel most safe, in his home.
• Information about A’s address was made publicly available, and he now fears break-ins or vandalism. There was no public interest in broadcasting images of his residence.
• The reporter also ‘hung around [A’s] workplace’ and caught him off-guard when he did not wish to be disturbed. The reporter’s approach was intrusive and created a negative atmosphere at the workplace.
• The reporter did not ask for X’s consent to film her, or inform her that she was being filmed. She was deeply offended that her name and face had been publicly disclosed without her knowledge. At the time of filming, the camera was held at knee height, to give the impression no filming was in progress. This disclosure was of a vicious nature, as it had the intention to shame the organisation, and there was no public interest in this material being disclosed.
• Y also did not consent to filming and was not informed he was being filmed. It also came as a shock to him when this footage was broadcast.
• JNJ Management did not wish to engage in an interview with Checkpoint or the reporter involved. It was concerned about previous coverage by RNZ of the company and there were other matters at the time of broadcast that required its attention.

[13]  RNZ submitted that:

• The programme addressed ongoing compliance and critical fire safety issues at the Sky World Building. RNZ made numerous attempts to contact A and his company’s representatives by phone and email. All contact attempts prior to filming had gone unanswered.
• In relation to the footage of A’s residence, while the shot at the front of the driveway indicated the house number, the broadcast did not name the street and no other identifying information was provided. In any event, this information was already in the public domain.
• It was not clear what hurt, harm or injury was experienced by A to suggest a breach of his interest in solitude or seclusion.
• In relation to filming at JNJ Management’s offices, there was an overriding public interest in the safety of the Sky World building. The office door area was in a public place accessible by escalator, lift and stairs. No signage or reception barriers suggested that this part of the building was off-limits.
• The filming of the conversations was not covert. The reporter handed each employee a business card and the employees were aware they were being filmed. The reporter clearly indicated he was from RNZ and that they were filming. The camera angle for the majority of X’s interview was at shoulder height.
• No private facts were disclosed as a result of this broadcast.
• The reporter tried to reach a number of people at JNJ Management and no one returned his calls. It was only as a last resort that the reporter sought interviews with A by approaching his residence and his office. The extent of his unhelpfulness was highlighted in the programme and there was a clear public interest in obtaining answers to the reporter’s questions.

Our analysis

[14]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual(s) whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about the individual(s); and the disclosure must be considered highly offensive to an objective reasonable person.³

[15]  Guideline 10e to the privacy standard also states that broadcasters should not intentionally intrude on a person’s reasonable expectation of solitude or seclusion in a way that could be considered highly offensive to an objective reasonable person.

Were A, X and Y identifiable?

[16]  When we consider a privacy complaint, we first determine whether the person (or persons) whose privacy has allegedly been interfered with was identifiable in the broadcast. The test for whether a person is identifiable is whether he or she would be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁴

[17]  A was named throughout the item and filmed during one of the doorstepping segments, when the reporter approached a man ‘fitting [A’s] description’. Likewise, the employees’ faces were clearly shown and they were referred to throughout by their first names.

[18]  We therefore find that A, X and Y were identifiable in the broadcast.

Was private information or material disclosed and was there a reasonable expectation of privacy?

[19]  The next question is whether any private information was disclosed about A, X or Y, over which they had a reasonable expectation of privacy.⁵ Factors the Authority will consider include, but are not limited to: whether the information or material is the public domain; whether it is intimate or sensitive in nature; and whether the individual or individuals could reasonably expect it would not be disclosed.

[20]  A person will usually not have a reasonable expectation of privacy in relation to matters of public record,⁶ and, in general, a person will not have a reasonable expectation of privacy in a public place. A public place is defined as being generally accessible to, and/or in view of, the public.⁷

Filming of A’s house and of A at Sky World

[21]  During this item, footage was shown of the reporter approaching and knocking on A’s front door and outside the house on the street, as he attempted to contact A’s assistant to make an appointment with him.

[22]  In the case Television New Zealand Ltd v KW,⁸ in which an Authority decision was appealed in the High Court, Courtney J noted that there could be no expectation of privacy ‘in terms of what can actually be seen from the street’, as it was not unlawful to photograph someone’s private property.⁹ Further, there is an implied licence available to members of the public on lawful business, including media, to approach the front door of a house and seek entry.¹⁰

[23]  We have confirmed that A’s private address is publicly available, including the street number and suburb which were disclosed in this item. Further, the images of A’s home shown during this segment would have been visible to any member of the public who wished to approach A’s front door. We therefore do not consider any private information or material was disclosed during this segment.

[24]  We also do not consider A had a reasonable expectation of privacy while leaving his offices at Sky World. He was clearly in a public place during this segment and in view of many members of the public, including the reporter. No private information or material was therefore disclosed during this segment, over which A had a reasonable expectation of privacy.

JNJ Management offices

[25]  The next question is whether any private information or material was disclosed during the doorstepping segments at JNJ Management’s offices, over which the employees involved, X and Y, had a reasonable expectation of privacy. We do not consider any private information was disclosed about X or Y during the item.

[26]  The information disclosed during these segments included the employees’ faces, their first names and the fact of their employment at JNJ Management. In previous decisions, we have found that a person’s role or employment will not necessarily constitute private information or material under the standard.¹¹ Whether an employee can reasonably expect to keep this information private will depend on the circumstances of their employment and the accessibility of the workplace.

[27]  In this case, JNJ Management’s address for service is publicly available information. Its offices are evidently not shut off from public access. The reporter filmed only the front door and entranceway to the office, which would be visible to anyone who approached the office seeking an appointment. While it does not appear to be otherwise publicly known that X and Y are employees of JNJ Management, it is clear from the footage supplied that employees would answer enquiries at the door of the office, with their role therefore in view of the public and of anyone who may approach the office.¹²

[28]  In these circumstances, we do not consider the information disclosed had the quality of private information, and we find the employees had only a limited expectation of privacy.

Intrusion upon solitude or seclusion

[29]  Solitude is defined as the state of being alone and seclusion is defined as a state of screening or shutting off from outside access or public view.¹³ A person may have an interest in seclusion in their home or on their property even when they are not there.¹⁴

A’s house and street

[30]  For the reasons outlined above at paragraphs [21] to [23], we do not consider that the filming of A’s property could be considered an intrusion on his reasonable expectation of solitude or seclusion.

[31]  The footage of A’s home that was featured in the item included only what would be visible to members of the public as they approached A’s front door. Further, the reporter made numerous attempts to contact A, and the broadcaster has submitted that it was only as a last resort that the reporter visited his home. As we have noted above under our discussion of freedom of expression, the issues explored during this item were in the public interest and it was important for viewers to see the attempts made by the reporter to contact A for comment.

[32]  In these circumstances, we do not consider that the footage amounted to a highly offensive intrusion on A’s interest in solitude or seclusion.

JNJ Management offices

[33]  In considering whether X and Y had a reasonable interest in solitude or seclusion while working at the JNJ Management offices, we note the question of whether a person could have an interest in solitude or seclusion while at work was also considered in the case Television New Zealand v KW, cited above. In that case, Courtney J stated:¹⁵

Plainly, a question will arise wherever premises are used for commercial purposes as to whether, and to what extent, the occupiers had a reasonable expectation of seclusion. Each situation should be considered individually and in relation to the relevant time because, even with commercial premises that are open to the public, there may be a reasonable expectation for privacy outside business hours. In terms of the use of premises, the continuum might range from areas to which the public has unrestricted access during business hours such as shopping malls to premises where access is permitted only by appointment.

[34]  We have set out our findings in relation to the accessibility of JNJ Management’s offices above at paragraph [27]. Based on the footage supplied, it appears that members of the public were able to approach the JNJ Management office to speak to someone or to seek an appointment, with employees answering the door to respond to any enquiries. Given the footage complained about showed only the front door and the entranceway to the office, and the employees as they answered the reporter, we do not consider that the employees could have an interest in solitude or seclusion in these circumstances.

Conclusion

[35]  We recognise that our New Zealand community comprises a wide range of cultures, ethnicities and beliefs, and we are appreciative of how broadcasts may be viewed from different cultural perspectives. However, our general approach is that we must look to the New Zealand community as a whole, and apply a New Zealand lens, when determining whether broadcasting standards have been breached.

[36]  Overall, we do not consider that any of the footage in the item revealed sensitive information about the employees involved. Nor do we consider it was filmed with the intention of humiliating them or encouraging harassment of them. In our view, X and Y came across as courteous and professional, politely engaging with the reporter and simply explaining that the reporter must make an appointment before taking his contact details.

[37]  We also note that, given the reporter’s attempts to speak to A, it was likely that JNJ Management would have been well aware that the reporter was attempting to reach A, and would have been aware of the nature of the programme and the story. The scenes complained about carried public interest, as they emphasised the difficulty experienced by the reporter in trying to contact A, and reinforced his comments later in the programme that both Auckland Council and other tenants in the building also had difficulty contacting him.

[38]  As we have determined no private information was disclosed during this item, we do not need to consider whether there was any highly offensive disclosure in this case, or whether any defence to a privacy breach was available to the broadcaster.

[39]  Accordingly, we do not uphold the complaint.

Name suppression

[40]  As we have noted above at paragraph [10], while we have not upheld the complaint in this instance, due to the nature and circumstances of this complaint, including that it alleged individuals’ privacy had been breached, we have suppressed the parties’ names in our decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
18 April 2018  

Appendix

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

1       JNJ Management’s direct privacy complaint – 23 November 2017
2       RNZ’s response to the complaint – 22 December 2017
3       JNJ Management’s further comments – 26 January 2018
4       RNZ’s further comments – 31 January 2018
5       RNZ’s response to the Authority’s request for further information – 1 March 2018
6       JNJ Management’s final comments – 8 March 2018

 ¹ Doorstepping refers to the filming or recording of an interview or attempted interview with someone, without any prior warning. Guideline 11e to the fairness standard (while not directly applicable to this privacy complaint) states that doorstepping as a means of obtaining comment will normally be unfair, unless all legitimate and reasonable methods of obtaining comment have been exhausted.

² See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.

³ Guidelines 10a and 10b

⁴ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁵ Guideline 10c

⁶ 3.1, Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁷ As above, 3.2

⁸ HC CIV-2007-485-001609, 18 December 2008

⁹ Citing TV3 Network Services v BSA [1995] 2 NZLR 720 at 732

¹⁰ Citing Robson v Hallett [1967] 2 QB 939; [1967] 2 All ER 407

¹¹ See, for example: PN and Television New Zealand Ltd, Decision No. 2016-041; TD and MediaWorks TV Ltd, Decision No. 2014-048; Scott and MediaWorks TV Ltd, Decision No. 2014-028

¹² In this way, the case is similar to PN and Television New Zealand, cited above, in which a Quarantine Officer had no reasonable expectation of privacy when in view of passengers. While his role was not information available to the public at large (as his work took place in the customs area of an airport, which was only in view of actual passengers), the Authority found he could not have a reasonable expectation of privacy in relation to his role, as his work was undertaken in view of members of the public.

¹³ 9.1, Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61

¹⁴ As above, 9.2

¹⁵ At [60]