BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Private Investigators – item on alleged employee theft – police diversion – privacy – identification

Findings
(1) Privacy – majority finding that complainant identified – no private facts revealed – police diversion scheme does not provide anonymity – no uphold

This headnote does not form part of the decision.

---

Summary

An episode of Private Investigators was broadcast on TV One at 7.30pm on 4 July 2000. Private Investigators is a series about the activities of private investigators in New Zealand.

SL, through her lawyer, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast had breached her privacy. The programme had included an item about alleged employee theft at an Auckland delicatessen. SL considered that her privacy had been breached and, as she had been dealt with under the police diversion scheme in relation to the matter, that the integrity of the scheme had been compromised by her identification.

In its response to the complaint, Television New Zealand Ltd, the broadcaster, submitted that SL had not been identified by the broadcast, and that details of her charge were not private facts. TVNZ concluded that SL’s privacy had not been breached.

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. The Authority determines this complaint without a formal hearing.

An episode of Private Investigators was broadcast on TV One at 7.30pm on 4 July 2000. Private Investigators is a series about the activities of private investigators in New Zealand.

SL, through her lawyer, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast had breached her privacy.

The programme had included an item about suspected employee theft from an Auckland delicatessen. SL considered that her privacy had been breached as she reported that she had been identified from the footage by an acquaintance of one of her children. SL’s lawyer also explained that SL had been dealt with under the police diversion scheme in relation to the matter. She submitted that the police diversion scheme was run by the police to give first time offenders a "second chance", and that the integrity of the scheme had been compromised by SL’s identification.

In its response to the complaint, TVNZ submitted that SL had not been identified. In its view, the following indicators arguably pointed to SL having been identified:

• Viewers were told that SL worked in an Auckland delicatessen
• SL’s employer was interviewed without her identity being electronically concealed
• SL’s age was given
• A surveillance camera shot of SL was broadcast which revealed her silhouette

However, TVNZ noted that SL’s face was electronically masked at all times. TVNZ also observed that, in its view, viewers were given little impression of SL’s height or hair colour.

TVNZ submitted that SL could not be identified "by anyone outside a very close circle of family and acquaintances".

As to comments made by SL’s lawyers about SL’s admission to the police diversion scheme, TVNZ referred to advice it had received from a criminal lawyer, and submitted that:

It would seem that there is a legal argument that while the Police Diversion Scheme allows a defendant to avoid acquiring a criminal record, it does not necessarily follow that the offence then becomes a private fact.

TVNZ argued that it was especially questionable that details of SL’s case had become private, given the seriousness of the charge to which SL had admitted. According to TVNZ, SL had admitted stealing $21,000 from her employer.

TVNZ then considered the application of Privacy Principles (i) and (ii) to the facts. Those principles read:

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.

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.

TVNZ submitted that Privacy Principle (i) had not been breached, as SL was not identified in the item, and there was "serious doubt" about whether the facts revealed in the programme were private.

TVNZ also concluded that Privacy Principle (ii) had not been breached, as it did not accept that "the passage of time" argument could be applied to a case which was very recent. It also submitted that its legal advice had implied that:

the fact that [SL] was placed on the police diversion scheme does not of itself cause the public fact of her criminal misdemeanours to become private again.

Commenting on TVNZ’s response to the Authority, SL’s lawyer made the following points. First, it was not accepted that SL had not been identified. SL’s lawyer contended that SL’s privacy could still be breached, even if only friends and acquaintances could recognise her, and reiterated that on this occasion the identification had been made by an acquaintance. She also explained that SL’s distress had been exacerbated as her close family, apart from her husband, had previously been unaware of the matter.

Secondly, SL’s lawyer submitted that her admission to the police diversion scheme made the details of her charge private. She cited extracts from the Police Diversion Guidelines, which she said she considered showed that the police who administered the scheme did not regard the details of individuals involved as public facts.

SL’s lawyer continued:

TVNZ has made the point that a defendant who may be eligible for diversion has their name called in open court. It is submitted that this is not often what happens in practice. If a person accepts diversion at their first court appearance the matter is usually dealt with by approaching the Registrar and the prosecuting police sergeant… Even if the person’s name is called in court the charge is not read and any details of the alleged offence are not available to the public.

Thirdly, SL’s lawyer contended that the case against SL was "unproven" and that the acceptance of diversion was not an admission of guilt. She contended that there was no need for the public to know the details of SL’s "misdemeanour".

Finally, SL’s lawyer contended that the broadcast was unfair because SL had believed that entering the diversion scheme would prevent such a broadcast, and she had not requested name suppression as she was not represented by a lawyer at the time when she was remanded for diversion.

In responding to SL’s comments, TVNZ made two points. First, it explained that it had contacted the police, and had been advised that a person must acknowledge guilt before receiving diversion. It therefore rejected SL’s claim that the case against her was unproven. TVNZ added that it understood SL had written to her former employer acknowledging her guilt. Secondly, TVNZ said it had been advised by the police that the granting of diversion did not mean the police did not regard the offence as serious. It therefore rejected SL’s claim that the police did not consider her offence to be serious. It also advised that:

Further investigation of the circumstances in which police diversion occurs reveals that generally there appears to be no undertaking of confidentiality by the police. The hearing is handled by the court registrar and the police’s prosecuting sergeant. Name suppression is granted only in exceptional circumstances.

In TVNZ’s view, at least the person’s name and the fact he or she has been charged were public facts.

In SL’s final comment, her lawyer reiterated the contention that the case was "unproven in court". SL’s lawyer also commented that discussions of the offence between a candidate for diversion and police took place on a "without prejudice" basis, according to the Police Diversion Guidelines.

SL’s lawyer also commented on TVNZ’s argument that the offence was serious. In her submission, it was the police’s responsibility to decide whether to prosecute a person, and:

In this case [SL] was granted diversion. TVNZ’s opinion as to the seriousness of the offence [was] therefore irrelevant and should not be taken into consideration.

SL’s lawyer made three final submissions. First, she submitted that TVNZ was incorrect in saying that there appeared to be no undertaking of confidentiality by the police in relation to diversion. She contended that it was standard practice for the police to keep all details of diversions confidential. Secondly, as to name suppression, she also disagreed with TVNZ. She maintained that the police practice was not to oppose name suppression and that obtaining such an order was straightforward. Finally, she submitted that even if SL’s name and details of her charge were public facts, the broadcast went "much further than this". She emphasised the distress which she said SL had suffered as a result of the broadcast.

The Authority’s Findings

When the Authority deals with a complaint that an individual’s privacy has been violated, the first matter for it to consider is whether the individual was identified by the broadcast.

In this case, the Authority considers that anyone resident in inner central Auckland might have been able to identify the delicatessen featured in the programme. The front of the shop was shown, and its interior was readily identifiable. In addition, the delicatessen could have been identified by the broadcast of an interview with SL’s employer, whose identity was not concealed, and who the Authority considers might have been recognised by some as the owner of the delicatessen.

A majority of the Authority considers that SL would have been identifiable through the identification of her place of work, the disclosure that she was 60 years old and the broadcast of the surveillance camera shot of her silhouette. In these circumstances the majority considers that SL’s identity was insufficiently protected by the broadcaster electronically masking her face.

The majority considers that those who could have identified SL by the broadcast would not have been confined to a group too small to satisfy the threshold test for identification. It notes that the person who identified SL was an acquaintance of a family member. In the majority’s view, SL would have been able to be identified by a group which did not comprise only those within a close circle of family and friends.

The minority disagrees. While it accepts that patrons of the delicatessen would possibly recognise the premises, the minority does not consider sufficient identifying features were revealed to enable a positive identification of SL to any but her family and close friends. As SL was not identified, the minority concludes that there was no breach of her privacy. The minority therefore withdraws from further consideration of this complaint.

Having satisfied itself that SL was identified in the broadcast, the majority now proceeds to apply the Authority’s Privacy Principles to ascertain whether the complainant’s privacy was breached.

First, it assesses the facts against Principle (i), which provides protection where private facts which are highly offensive and objectionable to the reasonable person are revealed. The complainant contended that because she had been dealt with under the police diversion scheme she was entitled to have her identity protected. She argued that the integrity of the scheme had been compromised by her being identified.

This argument seems to be unsustainable in light of a recent judgment from the High Court (unreported A169/00), in which Justice Robertson considered the issue of name suppression when a person had been subject to diversion. His Honour stated at page 3:

I know of nothing in the provisions of s 140 [of the Criminal Justice Act] which suggest that the general law with regard to persons charged should not apply in these circumstances. Decisions of the Court of Appeal including Proctor v R [1997] 1 NZLR 295, R v Liddell [1995] 1 NZLR 537 and Lewis v Wilson & Horton & Ors (CA 131-00, 29 August 2000) all make clear the fundamental proposition that what goes on in Courts is done in public. It applies to persons charged not only those convicted.

The Authority acknowledges the practice which apparently exists in some District Courts to keep details of diversion cases confidential. It notes that SL believed that details of her case were private. However, that protection is not, as Robertson J has indicated, a legally enforceable right. Accordingly, the Authority concludes that even if she were identifiable – and it is divided in its conclusion on that point – because the facts about SL’s stealing were in the public arena, no private facts about her were disclosed in contravention of the privacy principles. The Authority declines to uphold the complaint that SL’s privacy was breached.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 December 2000

Appendix

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

1. SL’s Formal Complaint to the Broadcasting Standards Authority – 26 July 2000
2. Television New Zealand Ltd’s Response to the Authority – 23 August 2000
3. SL’s Comment on TVNZ’s Response – 7 September 2000
4. TVNZ’s Further Comment – 15 September 2000
5. SL’s Final Comment – 20 September 2000