BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a privacy complaint about an episode of David Lomas Investigates, which covered the story of a woman who as a baby was found on the footpath wrapped in newspaper. In two segments, Mr Lomas visited the address at which the baby was reportedly found, and during the course of the programme disclosed the street, suburb and city. Two letterbox numbers at the bottom of an entrance path and steps were also shown ‘at the next property’, as an example of what the address may have looked like when the baby was found (before construction of the new building on the property). The complainant argued this breached her privacy as the programme disclosed her full address and filmed her property without notifying her or asking for permission. The Authority found the privacy standard did not apply, as the right to privacy attaches to identifiable individuals rather than to property, and the complainant was not identifiable in the broadcast.

Not Upheld: Privacy  

The broadcast

[1]  An episode of David Lomas Investigates, broadcast on Three on 4 May 2021, covered the story of a woman who as a baby was found on the footpath wrapped in newspaper, and her quest to find her birth mother and blood family.

[2]  Looking at old newspaper articles, Mr Lomas said he had managed to find the ‘exact address’ where the baby was reportedly found. He disclosed the street name, suburb and city. In two separate segments, Mr Lomas was shown visiting the address, and then again later when he took the woman to see it. Footage was shown of the address location, where Mr Lomas noted there was a ‘relatively new building and no trace of the old pathway’ where the baby was found. However, he said, ‘at the next property, there is an old entrance, and that gives me an impression of what the spot where [the baby] was abandoned would have looked like.’ Footage showed a path and steps, with two letterboxes at the bottom (showing the numbers on them). These same two locations were shown again when Mr Lomas took the woman to see them, saying:

Mr Lomas:       You’ve never actually been to the spot where you were left have you?

Woman:           No I haven’t, no.

Mr Lomas:       Well if you were to look over there, see that modern-ish white building there, that’s essentially where it all happened. But as you can see it’s all totally changed, it’s modern. But if you were just to have a look up this little alley here, which is almost identical to what would have been just down there, it was a spot just like that where you were left.

The complaint

[3]  TC made a direct privacy complaint to the Authority:

• ‘The production filmed on my property, without asking or notifying me.’
• ‘The production used my property to dramatise a story, even though my property had nothing to do with the story.’
• ‘…the production made my full address available. They referenced the street, suburb and region, and showed my house number on their advertising and throughout the programme.’

[4]  In later submissions TC added:

• ‘Numerous people told me that they saw my steps on television. This means that the information was enough to identify me.’
• ‘If an affected person saw fit, they could arrive at my front door. Given the story told, and the complexities of the family history, it is not completely unreasonable to expect that the show should have contemplated this and shown more care.’

The broadcaster’s response

[5]  The broadcaster did not find any breach of the privacy standard:

• ‘[David Lomas] has confirmed himself and the cameraman did walk up the shared access way to the two houses at the top. David did knock on one door (of the house to the left), and the other house looked to be uninhabited at the time. At the top of the access way they filmed a perspective of the spot the child was found and the proximity of the spot to the hospital. He said it did not feel like they were intruding on one person’s land, rather a shared access way. He did not think the owner would have a problem with this as the house itself was not being filmed, there is no breach of privacy, and his time on the premises was extremely brief.’
• ‘The property was central to the story of the abandoned baby from 57 years earlier. The footage was included to establish context about that story and to show the audience where the baby had been left. The broadcast contained brief shots of the external access to the property and did not show the house, reveal the names of the residents of the property or any private information about them.’
• ‘[Discovery] is satisfied that the broadcast did not contain any breach of the complainant's privacy and we would recommend this complaint is not upheld.’

The standard

[6]  The privacy standard¹ states broadcasters should maintain standards consistent with the privacy of the individual.

[7]  There are typically three criteria for finding a breach of privacy:

• The individual whose privacy has allegedly been interfered with was identifiable.²
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.³
• The disclosure would be considered highly offensive to an objective reasonable person.⁴

Our findings

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

[9]  Our task is to weigh the important right to freedom of expression against the harm potentially caused by the broadcast (in this case, applying the privacy standard). We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.

Was the complainant identifiable?

[10]  First, we considered whether the complainant was identifiable, beyond family and close friends who might reasonably be expected to know about the information disclosed in the broadcast (the complainant’s address).⁵ The privacy standard applies only to identifiable individuals.⁶

[11]  The Authority has previously stated an address must be linked to an ‘identifiable individual’ before a broadcast can be said to have breached the privacy standard.⁷ This is because the right to privacy is an individual right; it attaches to a person, not to property.

[12]  Accordingly, the question for the Authority is whether someone without a close association with the complainant and who was not already familiar with her property or the address, would have identified her from the broadcast.

[13]  We are limited to considering what was actually broadcast, rather than the actions of the production crew in briefly visiting the complainant’s and the neighbouring houses. We understand from the complaint the complainant’s property is connected to the path and steps shown, and one of the two letterboxes shown.

[14]  The complainant had no involvement with the programme. She was not filmed, and was not referred to or mentioned in the broadcast. Although the complainant’s address was disclosed through the combination of Mr Lomas’ reference to the street and suburb, and the letterbox numbers later shown, her property was not ultimately shown beyond the entrance steps and letterbox. Mr Lomas simply described these as ‘an impression of what the spot where [the baby] was abandoned would have looked like’.

[15]  The complainant has advised that people who know her identified her steps – but the identification test is only met if people beyond those who already knew that information were able to identify her. We do not think anyone in that category would have been able to identify her from the broadcast content.

[16]  As the first criterion that the complainant was ‘identifiable’ was not met (paragraph [7]), no breach of the complainant’s privacy occurred and we do not uphold the complaint. The footage of the complainant’s entrance way was essentially visual wallpaper, using creative licence to tell the woman’s story and to paint a picture of what may have happened many years earlier. It did not cause any real risk of harm to the complainant’s privacy interests that would outweigh the broadcaster’s freedom of expression.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

29 June 2021    

       
Appendix

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

1  TC’s direct privacy complaint – 15 May 2021

2  Discovery’s response to the complaint – 10 June 2021

3  TC’s final comments – 10 June 2021

¹ Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
² Guideline 10a
³ Guideline 10c
⁴ Guideline 10b
⁵ Guidance: Privacy, 2.1, Broadcasting Standards in New Zealand Codebook, page 59
⁶ Guideline 10a
⁷ QS and Television New Zealand Ltd, Decision No. 2014-42 at [8], citing South Pacific Pictures Ltd and RadioWorks Ltd, Decision No. 2008-017