Smyth and Television New Zealand Ltd - 2010-059
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Elliot Smyth
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1A) of the Broadcasting Act 1989
One News – item on Air Force helicopter crash on ANZAC Day – first reporter reported from the site of the crash – second part of the item showed photographs of the men who died, parts of their Facebook pages and past interviews with them – showed footage of the sole survivor being taken to an ambulance on a stretcher – item included comment from head of the Air Force – allegedly in breach of privacy
Standard 3 (privacy) – privacy standard does not apply to deceased individuals – servicemen’s family members not identified – no private facts disclosed about surviving serviceman – footage of survivor not obtained by prying – broadcaster exercised adequate care and sensitivity – information about the crash and the survivor of legitimate public interest – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on 26 April 2010, reported that a court of inquiry had been convened to investigate the deaths of three Air Force servicemen in a helicopter crash on ANZAC Day.
 One News first crossed to a reporter who was in Pukerua Bay near the site of the crash. The Chief of the Air Force was shown saying that the investigation would cover every angle including weather conditions. The item then discussed how the helicopter had deviated from the normal coastal route between Pukerua Bay and Wellington.
 In the second part of the item, a reporter spoke from Ohakea Airbase where the friends and family of the men had gathered. The reporter named the three men who had been killed in the crash as photographs of them in uniform were shown. He said that family members had been arriving at the airbase that day but were “too distraught to talk to media”. The Defence Minister was shown saying that “they’re coping, but as I say, it’s the first 24 hours. There’s a lot to sink in yet. There’s a lot to think about. There’s a lot of grieving ahead.” The item showed the photographs of the three men again, side by side. The reporter said that all three men had served in Timor, and one had also been posted in Afghanistan. As he said this, images of parts of two of the men’s Facebook pages were shown. The reporter said that tributes to the men had been posted on their Facebook pages, and parts of these messages were shown.
 The reporter stated that one of the men had been interviewed by One News three years earlier at the national helicopter flying championships. A short excerpt of the interview was shown. Another photograph of him with his cricket team was shown and the reporter said he was the captain of the cricket club. Comment was included from the cricket club president. Photographs of another of the men kayaking and hiking were shown.
 The reporter concluded by saying that the focus would now be on funeral arrangements. The photographs of the three men in uniform were again shown side by side.
 The One News presenter went on to say that the sole survivor of the crash had been airlifted to Wellington Hospital. Footage was shown of him being moved on a gurney towards an ambulance. The Chief of the Air Force was shown commenting on the man’s health after visiting him in hospital. The item returned to the footage of the man on the gurney as he was lifted into the ambulance.
Referral to the Authority
 Elliot Smyth lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989. He considered that the privacy of the Air Force personnel and their families had been “severely breached” by the One News item.
 First, Mr Smyth said, the families were asked to comment on the deaths less than 24 hours after the incident. Second, the deceased men’s Facebook pages were shown, as well as past interviews, and photographs from their personal lives. In addition, Mr Smyth said, the surviving man was shown “bloodied and on the rescue stretcher”. The complainant argued that “these things did in no way need to be shown when it is so close to the accident and still so very raw for the family”.
 Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1, 3 and 8 of the Authority’s Privacy Principles are relevant to the determination of this complaint. They provide:
Standard 3 Privacy
Broadcasters should maintain standards consistent with the privacy of the individual.
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.
8. Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.
Broadcaster’s Response to the Authority
 TVNZ noted that the Authority had previously determined that Standard 3 did not apply to deceased individuals (e.g. Tomonaga and CanWest TVWorks1). It therefore concluded that the privacy of the deceased Air Force personnel had not been breached.
 The broadcaster considered that the footage used of the men was in the public realm, and noted that their Facebook accounts were being used by people to give their condolences to the families. It said, “This footage and the One News footage of the men from previous interviews were used to give an obituary for the men in the item.” TVNZ considered that the tone of the item was respectful and appropriate given the level of public grief caused by the accident and the men’s deaths.
 TVNZ went on to consider whether any other individuals were identifiable in the item. It was of the view that the families of the deceased were not identified in any way, noting that comments from the families were provided through an Air Force representative. The families were not approached directly by One News, TVNZ said, and the information that the families were “too distraught to talk to media” was given in the item and was not a breach of privacy.
 Turning to consider the survivor of the crash, TVNZ pointed out that while footage of him was shown, he was not named. The footage was taken in a public place, it said, and was not obtained by “prying into the rescue” (privacy principle 3). It noted that this footage was used in many media at the time of the crash. In particular, the footage of him being winched into the rescue helicopter was shown on another television station, and this footage, including close up footage of his face, had been released by the man’s family.
 TVNZ concluded that, while “there may have been limited identification of the man (his friends and family may have identified him from the One News footage)”, the item had not disclosed any private facts about him. It maintained that there was nothing in the item that would have identified the survivor to the wider community, as his face was not clearly shown. Regardless, it did not consider that the helicopter crash was a private fact.
 TVNZ noted that the man’s Commanding Officer had given a press interview about the man’s health after visiting him in hospital. It said, “This information was released by the Air Force in recognition of the fact that the information about the man’s situation and health was of public interest.” TVNZ pointed out that it was a defence to a privacy complaint if the disclosure was in the public interest (privacy principle 8). It considered that reporting on the crash and the health of the survivor was in the public interest. TVNZ maintained that “the helicopter crash was of importance to the New Zealand public – so much so that the Prime Minister gave tribute to the victims of the crash during his speech at Gallipoli.”
 TVNZ concluded that Standard 3 had not been breached.
 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.
 The complainant argued that the privacy of the Air Force personnel and their families had been “severely breached” by the One News item. 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.
 With respect to the deceased Air Force servicemen, we note that section 4(1)(c) of the Broadcasting Act 1989 requires every broadcaster to maintain in its programmes and their presentation, standards which are consistent with the privacy of the individual. “Individual” is defined in the Broadcasting Amendment Act 2000 as having the same meaning as in the Privacy Act 1993. Section 2 of the Privacy Act interprets “individual” as meaning a natural person, other than a deceased person. Not being individuals within the meaning of the Act, the deceased servicemen therefore had no legal right to privacy.
 In any event, we note that the images of the men’s Facebook pages used in the item were fleeting and contained no private information about them. Accordingly, we decline to uphold this aspect of the privacy complaint.
 Turning to the families of the Air Force servicemen, we note that no member of these families took part in the report and that the item did not identify them. As a result, we decline to uphold this aspect of the Standard 3 complaint.
 In relation to the privacy of the crash survivor, Mr Smyth said the man was shown “bloodied and on the rescue stretcher”, and argued that “these things did in no way need to be shown when it is so close to the accident and still so very raw for the family”.
 As pointed out by TVNZ, while the crash survivor was not named in the item, brief footage of him strapped to a gurney was shown. While we consider that it would have been difficult for anyone outside family and close friends to have identified the survivor from the footage, we have proceeded on the basis that he may have been identifiable beyond that group.
 In relation to privacy principle 1, we note that the report said that the sole survivor had been airlifted to Wellington Hospital and the Chief of the Air Force commented on the man’s state of health. Taking into account the public nature of the crash and the Air Force’s public comments on the matter, we consider that the information about the injured serviceman provided in the item did not amount to private facts for the purposes of the standard.
 Privacy principle 3(a) states that 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. There are two elements to this principle.
 First, the principle requires that an individual must have an interest in solitude or seclusion. We note that privacy principle 3(b) states that, 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). We note that the footage was taken in a public place.
 However, privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was “particularly vulnerable”. In our view the surviving serviceman was particularly vulnerable because he was strapped to a gurney and had sustained severe injuries that required urgent medical attention. In these circumstances we conclude that he did have an interest in seclusion at the time he was filmed.
 Second, for us to conclude that there was a breach of privacy principle 3, we must find that the footage of the man was obtained by intentionally interfering, in the nature of prying, with his interest in seclusion.
 In considering this element of the principle, we have taken into account the nature of the broadcast footage. We note that the footage was brief and consisted of wide angle shots that were taken from a respectful distance. Further, the injured man was fully dressed in army fatigues and the footage only showed a side view of his face and body. In these circumstances, we consider that the item did not contain any elements of prying. Accordingly, we conclude that privacy principle 3 was not breached.
 For the record, we note that disclosing a matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint under privacy principle 8. In our view, there was a public interest in showing the injured crash survivor as he was a member of the Air Force and the crash had occurred on ANZAC day. There was deep public concern for the wellbeing of the survivor, his family, and the families of the deceased servicemen. We therefore consider that the information disclosed in the item was appropriate given the level of legitimate public interest in the crash.
 Accordingly, we decline to uphold the complaint that the item breached Standard 3.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
5 August 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Elliot Smyth’s direct privacy complaint – 26 April 2010
2. TVNZ’s response to the complaint – 25 May 2010
1Decision No. 2007-081