McDonald and Television New Zealand Ltd - 2008-109
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Coralie McDonald
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1A) of the Broadcasting Act 1989
One News – item reported on an Auckland homicide – showed victim’s wife and three teenage children being driven away in police car – allegedly in breach of privacy
Standard 3 (privacy) – footage of police car was taken in a public place – victim’s family likely vulnerable but disclosure of footage not highly offensive – not upheld
This headnote does not form part of the decision.
 On One News, broadcast on TV One at 6pm on 26 September 2008, it was reported that a man had been stabbed and killed in Auckland. In the following item, One News reported from the suburb in which the man lived and interviewed one of his work colleagues, a man who witnessed the incident, and a member of the Auckland Police. During the item, the reporter stated that “After being told of the attack by phone, his family rushed through the police cordon to be by his side”. While the reporter said this, a police car was shown turning around, transporting four people who were covering their faces with their hands. This shot was 10 seconds in length.
Referral to the Authority
 Coralie McDonald lodged a privacy complaint directly with the Authority under section 8(1A) of the Broadcasting Act 1989, alleging that the item breached the privacy of the victim’s family. Referring to the Authority’s privacy principle 3, Ms McDonald argued that the victim’s wife and children were “particularly vulnerable”. They were filmed leaving the scene in the back of a police car, she said, in a manner usually associated with criminals. She considered this was completely insensitive to the victim’s family, and did not add anything to the report.
 Standard 3 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. The complainant nominated privacy principle 3. 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.
3. (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.
(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).
(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.
Broadcaster’s Response to the Authority
 TVNZ noted that two One News items reported on the incident. The first item was from a reporter at the scene of the crime, while the second item reported from the suburb in which the victim lived. Included in the second item was a brief shot of the family at the crime scene in a police car. TVNZ maintained that none of the family members was identifiable in this shot.
 The broadcaster argued that the defence in privacy principle 8 applied. That principle states that “disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint”. TVNZ contended that the item warranted a public interest defence. A man was killed in broad daylight on a busy central Auckland street at the end of a working day. The story was the lead item for the news that day, TVNZ said, and was of considerable public interest.
 Further, the footage of the family in the police car was brief and acceptable in the context of the item, the broadcaster wrote, and due care and discretion was exercised in showing that footage. TVNZ acknowledged that sensitivity was required when reporting on bereavement, but considered that the inclusion of the brief scenes of the family leaving the crime scene was not gratuitous and was handled with sensitivity.
 Accordingly, TVNZ declined to uphold the privacy complaint.
Complainant’s Final Comment
 Ms McDonald noted TVNZ’s argument that the item warranted a public interest defence against the privacy complaint. She said that broadcasting a report on the incident, and the fact that the incident warranted public interest were not concerns that she raised.
 The second part of TVNZ’s defence, the complainant said, was that the footage was in context. Again, she said, this was not one of her concerns. She maintained that broadcasting the footage of the family was a breach of privacy and the footage was neither appropriate nor necessary for the story.
 Ms McDonald noted that a story on TVNZ’s website concluded by saying, “[the victim’s] family has asked that their privacy be respected while they deal with the tragedy”. She said that there was a need for a story of public interest to be reported in terms of what happened, who did it, why it happened and where it happened, but argued that it was not in the public interest, nor in the interests of the victim’s family, to show footage of them grieving at the scene of the crime.
 The complainant reiterated that her concerns about the item could not be defended by a claim that the story was of public interest and the footage was “in context”. She said that she was concerned that TVNZ would continue to film other innocent parties using the same defence.
 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.
 When the Authority considers a complaint that alleges a breach of privacy, it must first consider whether the individual whose privacy has allegedly been breached was identifiable in the item. While the victim’s family members were not individually named and their faces were not shown, the Authority considers that they were identifiable through their relationship with the victim, who was named throughout the item.
 Privacy principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). The Authority notes that the police car transporting the family was on a public street and that the camera recording them appeared to be in plain sight, as opposed to being hidden.
 However, privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person. In the Authority’s view, the victim’s family was likely to be grieving and in shock, such that they could be considered to be particularly vulnerable. However, the Authority considers that the disclosure of the footage of the family in the police car would not be highly offensive to an objective reasonable person as the footage was very brief, and viewers could not see the family’s faces because they were covered. The footage appeared to have been taken from a respectful distance and did not intrude unreasonably on the family’s grief.
 Accordingly, the Authority finds that the broadcast did not breach the privacy of the victim’s family, and declines to uphold the privacy complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 December 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Coralie McDonald’s direct referral to the Authority – 26 September 2008
2. TVNZ’s response to the Authority – 30 October 2008
3. Ms McDonald’s final comments – 17 November 2008