BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary 

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

An item on Campbell Live focused on a travel agency whose customers alleged that trips they had paid for had not been booked. During the item a brief exchange took place between the reporter and a ‘family friend’ of the owners of the travel agency, the complainant, outside the vacant agency. The Authority did not uphold a complaint that the broadcast breached Mr Malakouti’s privacy. The footage was filmed in a public place and the item did not disclose any private facts about him. There was no suggestion Mr Malakouti was associated with the travel agency, so the broadcast of the footage was not highly offensive.   Not Upheld: Privacy   

Introduction 

[1]  An item on Campbell Live focused on a travel agency whose customers alleged that trips they had paid for had not been booked. During the item a brief exchange took place between the reporter and a ‘family friend’ of the owners of the travel agency – the complainant – outside the vacant agency.   [2]  Mr Malakouti complained that the broadcast breached his privacy, as his association with the travel agency and part of the conversation he had with the reporter was broadcast without his consent.   [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 on TV3 on 5 December 2014. 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 the complainant’s privacy?

[5]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.   [6]  Mr Malakouti maintained that the information he provided to the Campbell Live reporter about the travel agency and his association with the owners was broadcast without his consent, as he had asked the reporter not to broadcast or record their conversation. He complained that the broadcast had a detrimental effect on him personally and financially, by negatively impacting on his business and his role in the Iranian community in New Zealand (specifically as Managing Director of the Iranian Society).   [7]  MediaWorks argued that no private facts about Mr Malakouti were broadcast, as there was no expectation of privacy around the fact of a ‘family friend’ relationship between him and the owners of the business, especially when he inserted himself between the aggrieved customers of the travel agency and the reporting team. It also noted filming took place in public so Mr Malakouti had no reasonable expectation of privacy. MediaWorks regretted that he felt the broadcast had a detrimental effect on him, but maintained that the story and the footage were in the public interest. It noted that the story had been covered a number of times since this first report and did not agree with the complainant that anything in the broadcast suggested he was involved with the problems of the business. MediaWorks considered that Mr Malakouti appeared reasonable and helpful in the footage.   [8]  When we consider a privacy complaint, the first question is whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As Mr Malakouti’s image was broadcast, we are satisfied he was identifiable.   [9]  Privacy principle 1 of the Authority’s privacy principles has the widest application to alleged breaches of privacy. This provides that 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. A ‘private fact’ is information which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.¹  The wording of privacy principle 1 requires that the ‘disclosure’ must be highly offensive, rather than the particular facts.   [10]  The only information broadcast about the complainant, apart from his image, was that he was a ‘family friend’ of the owners of the travel agency (which he disputes). Who someone is friends with is not a ‘private fact’ as envisaged by the standard. It is personal, rather than private, information.²  In addition, Mr Malakouti was filmed in a space which was accessible to, and within view of, the general public. In these circumstances we do not consider he had a reasonable expectation of privacy, or that the footage broadcast disclosed any private information.   [11]  Nor do we think that the disclosure would have been highly offensive to an objective reasonable person. The brief exchange between the reporter and Mr Malakouti outside the travel agency did not portray Mr Malakouti in a negative light. The complainant initiated contact with the reporter and willingly engaged with him about the agency and its owners. We agree with the broadcaster that Mr Malakouti came across as reasonable and eager to assist. Nothing beyond the brief reference to him as a ‘family friend’ of the agency owners suggested that Mr Malakouti was associated with the travel agency’s business or actions, or the allegations against it.   [12]  We acknowledge Mr Malakouti’s claim that the footage of his conversation with the reporter was broadcast without his consent. However, it does not automatically follow that this made the broadcast ‘private’. Rather, ‘informed consent’ is a defence to a breach of privacy.³  As we have concluded there was no breach of privacy, we do not need to consider whether this defence applied.    [13]  For these reasons, we decline to uphold the privacy complaint.   For the above reasons the Authority declines to uphold the complaint.   Signed for and on behalf of the Authority         Peter Radich Chair 1 May 2015    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:   1      Mahdi Malakouti’s original privacy complaint – 23 December 2014 2      MediaWorks’ response to the complaint – 10 February 2015 3      Mr Malakouti’s final comments – 25 February 2015 4      MediaWorks’ confirmation of no further comment – 2 March 2015  

¹

 Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011) ² For an example of a previous decision in which the Authority found the facts disclosed were of a personal, rather than private nature, see White and RadioWorks Ltd, Decision No. 2009-008 ³ See privacy principle 5 of the Authority’s Privacy Principles