Middleton and Television New Zealand Ltd - 2013-040
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Hamish Middleton
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1A) of the Broadcasting Act 1989
Breakfast – news items discussed identity of a deceased teenager, despite being informed in the programme that police were not releasing the deceased’s name in accordance with a request from his family – disclosure of deceased’s identity allegedly in breach of his family’s privacy
Standard 3 (privacy) – deceased’s family identified through their connection with him – no private facts revealed because deceased’s identity had already been disclosed on social networking sites so was in the public realm, even if not officially confirmed by police – broadcaster took steps, as soon as reasonably practicable, to ensure the deceased was not named again in the programme – not upheld
This headnote does not form part of the decision.
 On the morning of 7 June 2013, Breakfast contained reports that a teenager had died following an assault after rugby training on a school sports ground. The student was named and his photograph was shown in a news bulletin broadcast at 7am. At 7.26am, Breakfast conducted a live telephone interview with the police officer in charge of the investigation. The officer was asked to confirm the name of the deceased, and he responded:
We can’t at this stage. We discussed [this] with the family last night and they’ve got some whanau coming from around the North Island and they’ve asked us not to release it officially, although we are aware that his name has been on social media sites.
 Immediately following the interview, the deceased was again named and had his photograph shown in the 7.30am news bulletin.
 Hamish Middleton made a direct privacy complaint to the Authority, alleging that the broadcast of the name and photograph of the deceased, when the programme was aware the police were not yet releasing this information, breached the privacy of the deceased’s family.
 The issue is whether the broadcast breached the privacy standard (Standard 3) and the Authority’s Privacy Principles, as set out in the Free-to-Air Television Code of Broadcasting Practice.
 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 privacy of the deceased’s family?
 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, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.
 Mr Middleton accepted that the privacy standard does not apply to deceased individuals,1 but argued that, by naming the deceased, the broadcaster breached his family’s right to privacy.
 TVNZ noted that Breakfast did not name the deceased in its news bulletins at 6am and 6.30am because at that stage his identity had not been confirmed, though it had been discussed on social media sites. The news team decided to name the deceased in the 7am news bulletin after it became aware he had been identified by other news providers. It was not until the interview with the officer in charge of the investigation at 7.26am that Breakfast was informed of the family’s request, and there was not enough time between the end of the interview and the 7.30am news item to react and have his name removed, it said. However, his name was removed from all subsequent Breakfast items.
 When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The deceased’s family members were identifiable in the broadcast through their connection to the deceased, whose name and photograph were disclosed in the news bulletins.
 Privacy principle 1 of the Authority’s Privacy Principles has the widest application to alleged breaches of privacy, and is the most relevant to the complaint. 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.
 While we understand the complainant’s objection to the broadcast, and recognise and respect the right of the deceased’s family to grieve in privacy, we decline to uphold the complaint on the basis the criteria of privacy principle 1 are not satisfied.
 The complaint was that the item disclosed the deceased’s name and photograph, contrary to the family’s wishes. The disclosure was unfortunate, but nevertheless came after the deceased had been named, very soon after his death, on social networking sites, including a Facebook tribute page set up overnight by his friends. Once this information became public, it quickly spread and the deceased was further identified in television, radio and online media reports, before he was named in the Breakfast programme. His identity was therefore not a “private fact” at the time of the Breakfast bulletins, and the broadcast did not reveal anything that was not already in the public domain. In this respect, the harm caused by the broadcast was minimal, particularly as apparently the family’s request was not because they had not all been informed of the death, but because some were still traveling to Auckland.
 We accept that the programme was not aware of the family’s request until they spoke to the police investigator at 7.26am, and that by that stage it was too late to have his name removed from the news bulletin at 7.30am. Nevertheless, Breakfast did take steps as soon as practicable after the interview to ensure the deceased was not named again in the programme, and in this sense we think the broadcaster showed due sensitivity and respect for the family’s wishes.
 Accordingly, 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
3 September 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Hamish Middleton’s direct privacy complaint to the Authority – 7 June 2013
2 TVNZ’s response to the Authority (including attachments) – 5 July 2013
3 Mr Middleton’s final comment – 9 July 2013
4 TVNZ’s confirmation of no final comment – 10 July 2013
1Section 4(1)(c) of the Broadcasting Act 1989requires every broadcaster to maintain in its programmes and their presentation, standards consistent with the privacy of the individual. “Individual” is defined in the Act as having the same meaning as in the Privacy Act 1993. Section 2 of the Privacy Act defines “individual” as a natural person, other than a deceased person.