BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
Heartland – programme included image of the complainant – allegedly in breach of privacy

Findings
Standard P9 (privacy) – complainant was identifiable but no private facts were disclosed – disclosure of the footage of him would not be highly offensive to an objective reasonable person – not upheld

 This headnote does not form part of the decision.

Broadcast

[1]   A episode of Heartland called “Grey Lynn: Summer in the City” was broadcast on TVNZ Heartland at 10.10pm on 27 November 2010, and repeated at 8am on 28 November 2010. Near the beginning of the programme, a shot of the complainant leaning out a window in his house was briefly shown.

Referral to the Authority

[2]   Te Awhitu Ransfield lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989. He alleged that Heartland had used his “personal image” without his consent, in breach of his privacy. He also complained that the image had been used in a promo for Takatapuhi, a gay and lesbian programme on Maori Television.

Standards

[3]   Standard P9 of the Pay Television Code of Broadcasting Practice and privacy principles 1 and 3 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:

Standard P9 Privacy

Content should conform to the Privacy Principles outlined in Appendix 1.

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.

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

[4]   SKY noted that it was not clear from Mr Ransfield’s complaint where he appeared in the footage. However, it said that it understood that Mr Ransfield was one of the audience members shown at the Grey Lynn Festival, and that he had not given an interview. SKY maintained that consent was not required for the use of this footage as it was obtained in a public place (privacy principle 3(b)), and that “Mr Ransfield is not maligned or ridiculed by the programme as this is not the focus or the intent of Heartland: Grey Lynn.” It considered that the footage of the audience at the festival was used “to give the viewer a flavour of the event”.

[5]   The broadcaster noted that none of the individuals shown at the festival was named or otherwise identified. It argued that the broadcast of the footage would not have led to “significant humiliation” of any of the individuals shown, and that no private facts were revealed about those individuals (privacy principle 1). SKY maintained that the footage was not obtained by “prying” or interfering with the individuals’ interest in solitude or seclusion contrary to privacy principle 3. In any case, SKY said, the disclosure of the footage would not be highly offensive to an objective reasonable person.

[6]   Accordingly, the broadcaster declined to uphold the privacy complaint.

Complainant’s Final Comment

[7]   Mr Ransfield maintained that he was not present at the Grey Lynn festival, or any of the public places shown in the programme. He alleged that he was filmed “while I was sitting looking out my lounge window in my house”, when a camera crew arrived in a van. He said that at no point did the crew approach him or tell him they had filmed him, and that he did not know until he saw Heartland advertised. Mr Ransfield maintained that his privacy had been breached.

Authority's Determination

[8]   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.

[9]   When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the complainant’s image was shown, we are satisfied that he was identifiable.

[10]   The broadcaster considered Mr Ransfield’s complaint under privacy principles 1 and 3. Looking first at whether any private facts were revealed about the complainant (privacy principle 1), we note that the footage of the complainant was brief and simply showed him leaning out a window. We do not consider that this amounted to a private fact.

[11]   Turning to privacy principle 3, we do not consider that the complainant had an interest in solitude or seclusion when he was filmed. Mr Ransfield was leaning out his window so that he was clearly visible to anyone on the public road outside, and there is nothing to suggest that the camera crew was on his private property.

[12]   In any case, we consider that the broadcast of a brief shot of Mr Ransfield, merely looking out his window, would not be considered highly offensive to an objective reasonable person.

[13]   Accordingly, we find that his privacy was not breached, and we decline to uphold the complaint.

[14]   We note that Mr Ransfield’s main concern was that his image was used in a promo for a gay and lesbian programme on Maori TV. He did not provide a date or time for that broadcast, and it appears that the promo was broadcast several years ago. Because Mr Ransfield did not lodge a valid formal complaint about that programme within the 20 working day timeframe, we have no jurisdiction to consider that part of his complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
29 March 2011

Appendix

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

1                 Te Awhitu Ransfield’s direct privacy complaint – 20 December 2010

2                 SKY’s response to the Authority – 27 January 2011

3                 Mr Ransfield’s final comment – 14 February 2011