BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on 1 News reported on a fatal bus crash that occurred south of Gisborne on Christmas Eve in 2016. The bus was carrying students and teachers from a visiting Tongan school band. The item featured photos, sourced from a public Facebook page for the Tongan community, of some of the injured passengers in hospital. The Authority upheld a complaint that the broadcast breached the injured passengers’ privacy. While the photos were in the public domain, those featured did not consent to their images appearing in the news item. As injured patients receiving medical care, they were in a particularly vulnerable position. While the Authority acknowledged the broadcaster’s submission that the Tongan community may have seen the use of these photos as a sign of support or respect for those involved in the accident, broadcasting the images widened the potential audience beyond the community for whom the photos were initially shared. The Authority noted that where social media content is re-published on another platform, such as broadcast media, privacy considerations should be considered afresh, particularly in sensitive circumstances.

Upheld: Privacy; No Order

Introduction

[1]  An item on 1 News reported on a fatal bus crash that occurred south of Gisborne on Christmas Eve. The bus was carrying students and teachers from a Tongan school band, who were visiting New Zealand to fundraise for their school in Tonga. Over 50 people were on board the bus when it crashed, with three people killed and many injured in the accident. The item featured photos of two of the deceased victims and photos, sourced from a public Facebook page for the Tongan community, of some of the injured passengers in hospital.

[2]  Abby Rickard complained that the item breached the crash victims’ privacy, as they were unlikely to have consented to their photos being shown during the item. She said that one person was shown in intensive care, ventilated and with bandaging to his face, and was not likely conscious at the time the picture was taken.

[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 during the 6pm news on 25 December 2016 on TVNZ 1. 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 patients’ privacy?

[5]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

The parties’ submissions

[6]  TVNZ submitted that:

• The photographs of the survivors were in the public domain, available on a public forum the Tongan community used to keep in touch and share photos, stories and videos.
• Care and consideration was taken before these photos were broadcast, and TVNZ’s Pacific correspondent said:

  ...for most Pacific families, particularly those island-born, posting these photographs in a public forum and reporting these images as occurred in this item would have been seen as a sign of respect to those pictured...

• The Pacific correspondent advised that photos such as those featured in the item would often be placed on public websites, Tonga news sites and open Facebook pages, as a sign of ‘support and love [the community] have for that person’.

Our analysis

[7]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.¹

Were the patients identifiable?

[8]  When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. While one patient’s face was partially obscured due to bandaging, we consider that all of the patients were nevertheless identifiable in the photos.

[9]  The patients were reported as being part of a specific school group travelling in New Zealand from Tonga. Most of their faces were visible and photographed from a close range. The facial features of the bandaged man were still identifiable despite the bandaging, in connection with the other information provided during the report.

Did the broadcast disclose private information or material about the patients?

[10]  The next step is to determine whether the broadcast disclosed any private information about the patients. To constitute ‘private information’ there must be a reasonable expectation of privacy in relation to the information or material. A person will not usually have a reasonable expectation of privacy in relation to matters of public record, such as matters that have recently been given widespread media coverage. In some cases however, there may be a reasonable expectation of privacy in relation to information even though it is in the public domain.²

[11]  We acknowledge that the images were available publicly. The bus accident was an event which attracted high public interest and the photos preceded the reporter’s reference to the ‘Givealittle’ page (raising funds for the group), encouraging public donations.

[12]  However, we consider that the patients in the photos had a reasonable expectation of privacy over their images in the circumstances. While a hospital is, at times, publicly accessible, those receiving medical treatment could reasonably expect privacy while there, particularly if situated in a private ward, or if access to the area was restricted. Those featured were hospital patients receiving medical care at the time the photographs were taken, and the images of their injuries, in connection with their involvement in a fatal accident, is sensitive information over which they would have had an expectation of privacy. We consider it was clear from the circumstances that these individuals were particularly vulnerable. This is especially the case if they were unconscious or asleep, and therefore unable to give consent to being photographed, or subsequently featured in the news item.

Highly offensive disclosure

[13]  Where private information has been disclosed, over which the featured individuals had a reasonable expectation of privacy, the next question for us to consider is whether this disclosure would be considered highly offensive to an objective reasonable person in the position of the persons affected.³ While this is an objective test, in this instance there are also cultural considerations to be taken into account.

[14]  TVNZ has argued that it sourced the photos from a public Facebook page and that the photos were originally shared, and then reported, in a culturally appropriate way, as a means of supporting those injured in the accident. While the broadcaster’s position is that it was entitled to access publicly available images from Facebook, we have given careful consideration to whether it was appropriate in this instance to share images of this nature, which featured people in highly vulnerable circumstances, during a national news item. The broadcaster has submitted that it exercised care and consideration before this story went to air, for this reason.

[15]  We acknowledge that, in times of trauma, it is important for the Tongan community, particularly the church community, to rally around the victims and their friends and family. We understand that one way this is done is through social media platforms such as Facebook, to connect the community when family members are overseas, and that Tongan community Facebook groups often feature photos, such as those featured in the item, to support or honour those who have passed.

[16]  Nevertheless, we consider that the platform of a public Facebook page, where members are a community connected by a common bond, differs to the platform of national media. While these photographs were available publicly on a Tongan community Facebook page, broadcasting those images in a national news item widened the potential audience beyond the community for whom the photos were shared. Even taking into account cultural considerations, these patients were in a highly vulnerable position. While it was important to generate compassion for them, this could be done without the use of graphic imagery that showed the victims’ injuries (particularly while they were unconscious). We do not wish to detract from the support shown to those featured. Nevertheless, we find that the broadcast of these sensitive images would have been highly offensive to an objective reasonable person, and a breach of privacy therefore occurred.

Was the item in the public interest?

[17]  Having found a breach of privacy, we move to consider whether any defences are available to the broadcaster. First, guideline 10f to the privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest.

[18]  We agree that it was in the public interest for the broadcaster to inform viewers about the accident and about the wellbeing of those involved (and to also draw attention to the Givealittle page raising funds for the victims). However, in our view, it was unnecessary to provide photos of this nature to accompany the message that the injured passengers were hospitalised and receiving medical treatment.

[19]  The images featured people in a vulnerable position, and were not fleeting or taken from a distance.⁴ While it was important for the community to show its support for those involved in the accident, we consider that this could have been achieved through, for example, reference to the Givealittle page and discussion from the community, rather than through the use of images of hospital patients in a vulnerable state.

Consent

[20]  Guideline 10g to the privacy standard states that it will not be a breach of privacy where the person concerned has given informed consent to the disclosure or intrusion.⁵

[21]  It is not the Authority’s role to determine whether the photographer sought consent before taking the photographs, or before the publisher posted the photographs to Facebook. The issue of consent in the context of broadcasting standards concerns the conduct of the broadcaster and whether or not consent was sought or obtained. On inquiry, the broadcaster confirmed that it did not seek consent from those featured in the photographs, from the person who took the photos, or from the publisher who posted them to Facebook. The broadcaster advised that it carefully considered its use of the photos, with the cultural context in mind, and asserted that, as the photos were available in the public domain, it was entitled to use these and report them as shown.

[22]  The information provided to us demonstrates that informed consent was not obtained in this instance, therefore the defence is not available to the broadcaster.

Conclusion

[23]  The use of social media, and the privacy implications arising out of platforms such as Facebook, is a rapidly evolving area. For this reason, we are undertaking research into the public’s, and broadcasters’, views on privacy and social media, including views on broadcasters’ rights to access and republish social media content. We hope that this research will give guidance to both broadcasters and the public on the issues raised in this case.

[24]  It is generally considered that photographs available on a publicly accessible Facebook page will be regarded as in the public domain, and, in the context of broadcasting standards, available for use by broadcasters.⁶ However, we do not consider that, where information is publicly accessible on a social media platform, broadcasters are then exempt from consideration of broadcasting standards, such as the privacy standard, particularly in sensitive circumstances (in this case surrounding grief and trauma). In our view, the publication of content on one platform does not automatically justify further republication on another platform, to a national audience, without consideration of the standards that apply. Where republishing of social media content does occur, any privacy issues that arise should be reconsidered, and expectations around publication of content on the new platform considered afresh.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of 1 News on 25 December 2016 breached Standard 10 of the Free-to-Air Television Code of Broadcasting Practice.

[25]  Having upheld part of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. While we have acknowledged that a breach of privacy occurred in this case, we do not consider an order is warranted.

[26]  The complaint was made by a third party, and we have not received any information about the level of harm caused to those featured in the photos as a result of the broadcast. The broadcaster has also submitted that it took due care and gave careful consideration to the issues before broadcasting the images. In particular, it viewed the photos as a way of providing support to those involved in the accident, and a way for the community to honour the victims. It considered that the Tongan community would view its use of the photos as respectful. While we have found that the use of the photos was highly offensive, we acknowledge that the item was not overly sensationalised or demeaning to those featured, and the photos were handled in a sensitive and empathetic way for the purpose argued for by the broadcaster.

[27]  Taking into account that this is an evolving area of broadcasting standards, we consider the most effective remedy is for the Authority to issue a decision that identifies the need to take care when using social media content, particularly where there are sensitive circumstances. We therefore consider that our decision provides sufficient redress and guidance, and we make no order in the circumstances.

Signed for and on behalf of the Authority

Te Raumawhitu Kupenga
Member
19 April 2017

Appendix

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

1      Abby Rickard’s direct privacy complaint to the Authority – 26 December 2016
2      TVNZ’s response to the privacy complaint – 13 February 2017
3      Ms Rickard’s further comments – 6 March 2017
4      TVNZ’s response to Authority’s request for further information – 7 and 9 March 2017

¹ Guidelines 10a and 10b

² Guidance: Privacy, 3.1

³ Guidelines 10b and 10e to Standard 10

⁴ As was the case in Smyth and Television New Zealand Ltd, Decision No. 2010-059

⁵ Guideline 10g to Standard 10

⁶ See, for example: Trunk Property Ltd and MediaWorks TV Ltd, Decision No. 2015-025. See also the NZ Press Council’s decision, Rivett and Family against The Press, Case No. 2487, February 2016 (http://www.presscouncil.org.nz/rulings/bob-rivett-and-family-against-the-press).