Smyth and Television New Zealand Ltd - 2014-065
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- J M Smyth
BroadcasterTelevision New Zealand Ltd
Summary [This summary does not form part of the decision.]
An episode of Seven Sharp reported on alleged ‘cat killers’ in Raglan. The Authority did not uphold the complaint that the item breached the privacy of the child of the alleged cat killers. The accused were not named, shown, or otherwise identified in the item, so no individual, and specifically the child, could be linked to them, meaning the child was not ‘identifiable’ for the purposes of the privacy standard.
Not Upheld: Privacy
 An episode of Seven Sharp reported on alleged ‘cat killers’ in Raglan after 30 cats went missing in past the year. A reporter travelled to Raglan and interviewed a local filmmaker who recently released a short documentary that aimed ‘to find out why it was happening and who was behind it’. It was reported that locals knew who was behind the killings, though no one was named or otherwise identified in the broadcast. Back in the studio, one of the presenters stated, ‘Now the SPCA say that no one is certain what’s actually behind the cats disappearing, it could just be a coincidence – unlikely. They are keeping a close eye on the situation but say it is a matter for the police… [but] the police don’t have enough evidence to bring a prosecution. So if you want to know more, we’ve got a link to the cat killer doco on our Facebook page’. The programme was broadcast on 28 May 2014 on TV ONE.
 J M Smyth made a direct privacy complaint to this Authority, as a representative of a child whose parents were accused of the cat killings. He argued that the broadcast breached the child’s privacy, because although the alleged ‘cat killers’ were not identified in the programme, it contained information ‘linking to and channeling viewers to further information that deliberately identified private individuals for no justifiable reason’. He said the item was ‘ill-researched’, inflamed public opinion, and encouraged ‘vigilantism and the ongoing abuse of a child’.
 The issue is whether the broadcast breached the privacy standard (Standard 3) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 Mr Smyth mentioned fairness, accuracy, and balance in his privacy complaint. However, only privacy complaints can be accepted by this Authority without first complaining to the broadcaster involved. We advised the complainant accordingly, and he responded that he wanted his privacy complaint considered by this Authority rather than forwarded to the broadcaster to be considered along with other standards. We understand he made a separate formal complaint to the broadcaster raising other standards. TVNZ informed us that a decision was issued to the complainant on those standards on 27 June 2014. Mr Smyth did not refer his complaint under those standards to this Authority and the statutory timeframe for doing so has now expired. Our jurisdiction is therefore limited to considering his privacy complaint.
Did the broadcast breach the child’s privacy?
 The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.
 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.
 Identification is the key issue in this case. As noted above, the complainant accepted that the child was not identified in the broadcast itself, but argued that the presenter referred viewers to information which ‘identifies people by their names and address, deliberately exposing them to vigilantism – which has already… caused a child to be assaulted and bullied and put into mental care’. Mr Smyth said the child had not attended school in the days following the broadcast.
 TVNZ responded that the alleged ‘cat killers’ were not identified in the programme, nor was any child, and there was no claim the ‘cat killers’ had children. It said the item did not ‘disseminate… links to victimised families’ names [or addresses]’.
 As the parties recognise, the alleged ‘cat killers’ were not named, shown, or otherwise identified in the broadcast. Accordingly, no other individual, or specifically any child, could be linked to them simply by viewing the broadcast. Nothing at all was said in the broadcast about the involvement of children.
 The complainant’s concern is that the programme directed viewers to other sources of information which could identify the cat killers, and consequently their child. We understand this to be a reference to the Facebook link to the documentary.
 The Authority recently considered whether, in a broadcasting context, identification must be achievable solely from information and images broadcast or whether for television broadcasting purposes, a person is identifiable if a combination of onscreen material and further inquiries allows for identification to be achieved.1 In that decision, we said that it is not appropriate to apply rigid rules and that each case needs to be looked at according to its own particular circumstances.2
 We have not been able to view the documentary, so we do not know for certain whether it identified the alleged cat killers. However, the information that we have managed to gather suggests that it did not identify them.
 The Seven Sharp item contained very brief footage of a rubbish bag at the end of a driveway. We understand that this footage was taken from the documentary, and that residents of the street expressed concerns the footage depicted the location as the residence of the ‘cat killers’.3 The documentary was apparently subsequently removed from the relevant website, and an apology remains in its place, saying that ‘no association with the residents of the street was intended’.
 This suggests to us that the documentary did not identify the accused, meaning that sending viewers to the Facebook link to the documentary was, in itself, unlikely to enable them to identify the individuals, let alone their child. Nor could we find any other information identifying the accused or their children by conducting a simple internet search.
 We therefore disagree with the complainant that anything in the programme, including the provision of a link to the documentary, enabled people to identify the accused with reference to internet material or other sources, and therefore enabled them to identify the child. While it is possible to envisage a situation where material external to a broadcast enables identification, we must apply a commonsense approach, and we do not think this was such a situation. To find otherwise would be taking the application of the principle of identification too far and would make it almost impossible for broadcasters to anonymise people, given the accessibility to information on the internet and the proliferation of internet capable devices, which increasingly are the same devices used to view broadcasts.
 In any event, we do not think that the harm suffered by the child stemmed from the broadcast. The focus of the Seven Sharp item was a mere theory about why many cats were going missing in Raglan. It was not stated as fact that the cats were targeted deliberately by the same person or group of people, and this was presented as a belief only, harboured by some residents in the community. It was reported that police did not have enough evidence to bring a prosecution and an animal welfare group said the number of missing cats could just be a ‘coincidence’.
 While the Seven Sharp item gave publicity to the ‘cat killer’ theory and possibly added to the hysteria within the Raglan community, the actual harm to the child resulted from rumours within that community about who was responsible for the alleged killings, and the actions of some people. The complainant stated:
The child I represent has been seriously traumatised and continues to be placed at risk by the gratuitous and deceitful behaviour of adults who are clearly intelligent enough to understand the collateral damage (to the children involved) of their actions… They continue to publish and maintain publications of unsubstantiated defamatory allegations that have not been borne out by police investigations and that remain unsupported by any evidence…
 Mr Smyth raises very serious concerns about the welfare of a child and we can understand the offence he took to the broadcast and its alleged perpetuation of the situation. However, these concerns are not really matters of broadcasting standards, and we think they are more appropriately matters for the other agencies he has contacted, including the police and the children’s commissioner.
 Having found that the child was not identifiable, we decline to uphold the privacy complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
25 September 2014
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 J M Smyth’s direct privacy complaint – 29 May 2014
2 Mr Smyth’s response to Authority’s email regarding referral of other standards – 30 May
3 Further information from Mr Smyth – 30 May 2014
4 TVNZ’s response to the Authority – 7 July 2014
5 Mr Smyth’s final comment – 15 July 2014
6 Further comments from Mr Smyth – 22 July 2014
7 TVNZ’s response to Authority’s enquiry about other standards – 8 August 2014
1Dr Z and Television New Zealand Ltd, Decision No. 2012-074
2This issue was also raised in a recent review of our privacy decisions: Anonymity, authorisation, and legitimate attention – three lines of defence in privacy law (Katrine Evans, July 2014)