BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
Real Crime: The Investigator – programme analysed the conviction of a man for murdering his wife – disclosed the names and showed photographs of the man’s daughters – allegedly in breach of privacy

Findings
Standard 3 (privacy) – programme did not disclose any private facts – information already in the public realm – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Real Crime: The Investigator was broadcast on TV One at 9.30pm on 8 July 2009. The investigator, Bryan Bruce, took an in-depth look at the case of a man who was convicted of murdering his wife in 2001.

[2]   During the programme, the first names of the man’s daughters were disclosed and a photograph of the man and his two daughters was displayed by the investigator on his evidence board.

[3]   When the photograph was initially shown, the faces of the daughters were pixellated. However, when the photo was shown again a minute later, the women’s faces were visible.

[4]   The photograph was shown again 25 minutes into the programme, and the women’s faces were pixellated. When the photo was shown a minute later, the women’s faces were visible again.

Complaint

[5]   LK, one of the man’s daughters, lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989, alleging that the programme had breached her and her sister’s privacy.

[6]   The complainant noted that the programme had disclosed her name and her younger sister’s name. She also noted that the programme had included a photograph that had clearly identified them both.

[7]   LK stated that neither she nor her sister had ever given anyone permission to disclose their identities on the programme and that she had specifically asked Bryan Bruce in person not to do so. She also contended that both she and her father had made it “abundantly clear” to Mr Bruce that neither daughter wished to take part in the programme.

[8]   The complainant said that it had been her experience that when people found out about her father’s conviction they made negative assumptions about her and her sister based on “gossip and speculation”. She stated that both she and her sister had asked to stay out of the public eye, because of the way their father’s conviction had affected their professional and personal lives over the years.

[9]   LK stated that, “it is programmes like Real Crime: The Investigator that dredge it all up again for us and literally put us back in the spotlight”. She argued that Mr Bruce was aware that, from her and her sister’s perspective, their identities “were to be protected” and not disclosed in the programme.

Standards

[10]   Standard 3 and guideline 3a of the Free-to-Air Television Code of Broadcasting Practice, and privacy principles 1, 2 and 4 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy principles

1. It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

2. It is inconsistent with an individual’s privacy to allow the public disclosure of some kinds of public facts. The ‘public’ facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to an objective reasonable person.

4. The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

Broadcaster’s Response to the Authority

[11]   TVNZ stated that when it considered an alleged breach of privacy, it first had to consider whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It assessed the complaint in relation to LK only and accepted that the complainant had been identified in the programme.

[12]   The broadcaster said that the next issue it needed to consider was whether the programme disclosed any private facts about LK. It contended that “the information that [LK] is the daughter of [the man] has been widely reported and a photograph of [LK] with her father, sister and stepmother (as well as other personal photographs of [LK’s] family) has been published on [a website]”. It stated that the website supported the man’s innocence and noted that the website mentioned both of his daughters by name, and provided the Authority with a copy of this material.

[13]   TVNZ stated that, in 2004, the complainant had given an interview on TVNZ’s Sunday programme and had talked about her father and the death of his wife. It noted that the photograph used in Real Crime: The Investigator was the same one that was used in the Sunday item, and it had been provided by the man’s family. As a result, it considered that the photograph was in the public realm.

[14]   The broadcaster also pointed out that the complainant had given evidence at her father’s trial and her name had not been suppressed by the court. It also contended that there had been numerous print articles published that contained references to or interviews with LK.

[15]   TVNZ argued that the facts of the man’s crime had not become private over time, as he was still serving his sentence for the murder of his wife when the programme was broadcast.

[16]   With respect to the on-and-off pixellating of the photograph, the broadcaster provided information from Mr Bruce, who stated that it was due to an error made by the programme’s editor. Mr Bruce said that the faces of the complainant and her sister were supposed to be masked “all through the programme”, and would be for any future re-broadcast. Mr Bruce also stated that, while he had asked LK for an interview, which she refused, he did not recall any conversation about photos or names not being used or their identities being protected.

[17]   TVNZ argued that “nothing in the footage concerning [LK] could be considered to be a private fact” and it declined to uphold the complaint that the programme breached Standard 3.

Authority's Determination

[18]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[19]   At the outset, the Authority notes that LK also made the complaint on behalf of her sister, although TVNZ only considered whether LK’s privacy was breached. Since it can be assumed that TVNZ’s response in respect of LK’s sister would be identical to the response it sent to LK, the Authority has proceeded to determine the complaint without asking TVNZ to file further submissions.

[20]   When the Authority considers an alleged breach of privacy, it must first determine whether the people whose privacy has allegedly been interfered with were identifiable in the item. The Authority agrees with TVNZ that both of the man’s daughters were identifiable.

[21]   Next, the Authority must determine whether the programme disclosed any private facts about those individuals. It notes that LK participated in an item about her father’s conviction on the Sunday programme in 2004 and that the website referred to by TVNZ contains the names of LK and her sister as well as photographs of them with their father.

[22]   In light of these matters, the Authority considers the fact that LK and her sister were the daughters of the man convicted for murdering his wife was not a private fact. While it is unfortunate that LK and her sister felt re-victimised by the screening of the programme and the details contained in it, the information about LK and her sister is in the public realm and available to anyone who looks for it.

[23]   Accordingly, the Authority declines to uphold the complaint that the programme breached Standard 3.

[24]   Although the complaint is not upheld, the Authority considers that, in order to avoid further distress to the complainant and her sister, it is appropriate to suppress their names.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

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

1.          LK’s direct privacy complaint – 24 July 2009

2.          TVNZ’s response to the Authority – 21 August 2009