BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News – dismissal of teacher – sex with student – identity revealed – privacy

Findings
Privacy – facts in public domain – no uphold

This headnote does not form part of the decision.

Summary

An item on 3 News broadcast on TV3 on 26 March 2000 reported that a female teacher had had a sexual relationship with a student at a school where she had taught. She was named in the report, and a photograph of her was included in the item. In addition there was film footage showing the reporter knocking at the door of her home.

Kevin Niederberger complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the teacher’s right to privacy had been violated by naming her, showing her photograph and filming her at her workplace. Furthermore, he complained that the reporter’s approach to her at her home portrayed clear harassment tactics which he said were totally unacceptable and unnecessary for the story.

In its response to the Authority, TV3 noted that the woman’s name had already been published in the print media. Given the public interest in the case, and the fact that the teacher had not attempted to conceal her identity, TV3 argued that the publication of her photograph was not offensive. It denied that she had been filmed at her workplace, and as for the filming at her home, TV3 argued that it did not constitute harassment, and noted that when there was no response, its reporter and camera crew had left the property.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, it determines the complaint without a formal hearing.

A female teacher’s sexual relationship with a student was the subject of an item on 3 News broadcast on 26 March 2000 between 6.00–7.00pm. She was named, and a photograph of her was shown. The item included footage taken from outside the school where she now works. In addition, the reporter was filmed knocking at the door of her home in an attempt to interview her.

Kevin Niederberger complained to the Broadcasting Standards Authority that the item breached the woman’s right to privacy by naming her, by showing a photograph of her and by filming her at her workplace. In his view, both the photograph and the film footage shown appeared to have been obtained without her permission. In addition, he complained about the footage showing the reporter knocking at her door, which he said "portrayed clear harassment tactics" which were totally unacceptable and unnecessary for the story.

In its response to the Authority TV3 noted that the woman had been named in print media before the item had gone to air and that therefore her identity was already in the public arena. Given the degree of public interest and the fact that she had not attempted to protect her identity, TV3 argued that the publication of the photograph did not constitute a breach of her privacy, and was not offensive. It denied that the woman had been filmed at her workplace. It noted that the item had been filmed on a Saturday and depicted the school involved, but no pupils or staff.

With respect to the visit to the teacher’s home, TV3 reported that this was in an effort to obtain a response from her to ensure the report was balanced and accurate. It noted that her address was not revealed, and that when there was no response to the reporter’s enquiry the film team had left the property. It maintained that the reporter’s conduct could not be described as "harassment". It concluded that, balanced against the teacher’s behaviour, the item had not infringed the Privacy Principles.

In his final comment, Mr Niederberger argued that the fact that other media had published the teacher’s name was not an excuse to violate her privacy. He maintained that although she had not sought for her name to be suppressed, she had not consented to its publication either. As for the publication of the photograph, Mr Niederberger noted that it had been obtained from a school magazine and that the teacher had not given permission for it to be reproduced.

Next, Mr Niederberger noted that, contrary to TV3’s assurance, the item included footage filmed at the teacher’s present workplace, and that there was a shot of her with other teachers and students walking towards the school gymnasium. He then repeated his view that the teacher’s privacy had been breached by the filming of the reporter attempting to contact her at her home. As a final point, Mr Niederberger repeated that the teacher had never consented to the invasion of her privacy. He argued that the public interest defence did not apply as there was not a high degree of public interest in the story.

In further correspondence, TV3 took issue with Mr Niederberger’s contention that the teacher had been filmed at her workplace. It wrote:

If there is footage of [the teacher] then it was inadvertent and unknown to TV3. Certainly no verbal identification of [the teacher] was made in the item. If the reporter had thought there was footage showing [the teacher] [TV3] thinks it likely the viewer’s attention would have been drawn to it.

TV3 suggested Mr Niederberger had confused the contents of the item with some other broadcast.

Mr Niederberger said he found TV3’s response both "unusual and misleading". He had not confused this item with any other, he wrote. He advised that the footage had been filmed on 28 February (one month prior to the broadcast), during school hours, and while the teacher was working. He reported that a number of people had been able to identify the teacher by the footage. In his view, TV3 had publicly ridiculed and humiliated an identifiable person. It had caused serious distress and trauma to the teacher and her family, he noted.

The Authority’s Findings

When the Authority considers a complaint alleging that an individual’s privacy has been breached, it applies a number of Privacy Principles which it enumerated in an Advisory Opinion released in 1999. On this occasion, it considers Principles (i), (ii) and (v) to be relevant, and assesses the complaint accordingly.

The Authority begins by noting that the woman was clearly identified, both by name, and in photographs. It makes no finding on whether the footage of the teacher among a group of other people at the school sufficed to identify her, although it accepts that she might have been recognisable to those who knew her. Prima facie, it finds, a potential privacy issue is raised. It then turns to Privacy Principle (i), which reads:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

This principle protects against the disclosure of private facts where the facts disclosed are highly offensive and objectionable. The Authority finds that although the facts related to a private matter, they were already in the public domain, so could not be considered to be private facts. It concludes that the principle therefore is not applicable.

Next it turns to Principle (ii), which reads:

(ii) The protection of privacy also protects against 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 a reasonable person.

The Authority understands that the detail of the teacher’s relationship had been published in other media and could therefore be regarded as being a public fact. The question for it is whether the public disclosure in this news item was protected by its becoming private again as a result of the passage of time since the alleged incident. In the Authority’s view, insufficient time had elapsed for that to occur. It finds that the issue, raised in the context of the woman’s subsequent employment at another school, was still topical. It therefore declines to uphold the complaint under this standard.

Finally, it turns to Principle (v) which reads:

(v) 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 person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

The Authority notes the complainant’s argument that the teacher had not given her consent to being named in the broadcast. Prima facie such disclosure is protected under this principle. However, as noted above, the information was already in the public domain, as her name and details about her relationship with a student had been published in other media. With respect to the photograph used in the item, the Authority notes that it had been obtained from a school magazine, which was a publicly available document. The filming at the school, the Authority finds, did not constitute an invasion of her privacy as it was not clear which, if any, of the group of people shown was the teacher. As a further point, the Authority does not consider the filming of the reporter knocking at the woman’s door was an invasion of her privacy since her home was not identifiable.

The Authority notes that the public interest defence would apply if there were a breach of privacy. As no breach of privacy occurred, the Authority is not required to evaluate the applicability of that defence.

As a final point, the Authority turns to principle (vii) which reads:

(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

It notes that because details of the matter had been published in other media and the teacher had consented to be interviewed (and named) she could not succeed in later claiming a breach of her privacy.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
29 June 2000

Appendix

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

1.    Kevin Niederberger’s Complaint to the Broadcasting Standards Authority –
      31 March 2000
2.    TV3’s Response to the Formal Complaint – 10 May 2000
3.    Mr Niederberger’s Final Comment – 14 May 2000
4.    TV3’s Further Response – 26 May 2000
5.    Mr Niederberger’s Further Response –30 May 2000
6.    TV3’s Further Response – 12 June 2000
7.    Mr Niederberger’s Further Response – 17 June 2000