BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Sunday – Item about prison officer who became pregnant to inmate and left prison service – item included class photo of featured officer with other prison officers – complainant standing next to featured officer – breach of privacy

Findings
Standard 3 and Guideline 3a – Privacy Principles (i), (iii), (iv) and (v)- no offensive facts disclosed – no prying – no uphold

This headnote does not form part of the decision.

Summary

[1] An item about a relationship in prison between a former prison officer and a man convicted of rape, in which the prison officer said she became pregnant, was screened on Sunday, broadcast on TV One at 7.30pm on 16 March 2003. The item included the "class" photo" of the former prison officer.

[2] TG complained to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that the item, broadcast by Television New Zealand Ltd, invaded her privacy. The broadcast of the "class photo", she said, in which she was seen immediately alongside the former prison officer, suggested that she, too, was an unprofessional prison officer.

[3] In response, TVNZ contended that the "class photo", in which TG was not named, did not reflect on TG in any way, and it recommended that the complaint not be upheld.

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

Decision

[4] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[5] An item about a relationship in prison between a former prison officer and a man convicted of rape, in which the prison officer said she became pregnant, was screened on Sunday, broadcast on TV One at 7.30pm on 16 March 2003. The item included the "class photo" of the former prison officer.

The Complaint

[6] TG complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast invaded her privacy. She noted that the item included a Prison Officers’ "class photo" in which she was seen standing alongside the featured prison officer. Her appearance in the photo, she wrote, revealed her identity without her consent and one person with whom she would rather not have had any contact, had tracked her down and telephoned her.

[7] TG wrote:

I pride myself on being totally professional and carrying out my work to a very high standard, the last thing I need is for viewers to lump me in the same category as [the former officer]. Prison Officers in New Zealand don’t have a good profile with the public because of the very reason that your programme was screened, but we all get tarred with the same brush.

Standards

[8] TVNZ assessed the complaint under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice. The Standard, and relevant Guideline, provides:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline

3a  Broadcasters must comply with the Privacy Principles developed by the Broadcasting Standards Authority (Appendix 2).

[9] The Privacy Principles which TVNZ applied provide:

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.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

The Broadcaster’s Response to the Authority

[10] TVNZ expressed regret that TG was distressed at seeing herself in the "class photo". However, it added, she was not named and the commentary did not draw attention to her adding, "only those people who already know who [TG] is would recognise her".

[11] In regard to the telephone call TG had received, TVNZ noted that the caller would not have learnt her name, address or phone number from the photograph shown during the item.

[12] As for suggesting that her behaviour was similar to that of the former prison officer featured, TVNZ wrote:

We also do not accept that by showing the class photo, [TG] was "lumped in" with the featured prison officer. There was no suggestion that the other people in the photograph had become involved in the same sort of illicit relationship that the featured prison officer was claiming. The reference to the featured prison officer made to being not the only one, was well separated from the "class photo" and the remark cannot be seen as referring to it.

Similarly [TG’s] brief appearance, unnamed and unidentified as far as the general public were concerned, did not have the effect of "tarring with the same brush" [TG] or the other colleagues shown.

[13] TVNZ then addressed the privacy principles it had listed. In regard to principle (i), it maintained that the photograph did not disclose private facts and, if private facts were considered to be disclosed, then such facts were not objectionable.

[14] As for principle (iii), TVNZ did not accept that the use of the photograph amounted to intentional interference in the nature of prying. TVNZ did not consider that TG had been ridiculed as required by principle (iv), and that personal information had not been released under principle (v).

[15] TVNZ recommended that the Authority decline to uphold the complaint.

The Complainant’s Final Comment

[16] The complainant did not respond to the Authority’s invitation to comment on TVNZ’s report to the Authority.

The Authority’s Determination

[17] When determining a complaint that a broadcast involves the invasion of an individual’s privacy, the Authority’s first task is to decide whether the individual was identified in the broadcast to a group wider than the immediate family and close friends. Although the display of the photograph on this occasion was relatively brief, the Authority accepts that the complainant was identifiable to the wider community.

[18] When determining whether Privacy Principles (i) or (ii) have been breached, the Authority has to decide whether the broadcast involved the release of offensive facts. The Authority considers that public release of the information that the complainant was a prison officer is not offensive. Although the broadcast suggested that the behaviour of some prison officers can be questionable on some occasions, those suggestions were not attributed in any way to the complainant.

[19] The Authority accepts that the broadcast did not involve intentional interference (in the nature of prying) with the complainants’ interests in seclusion, or the disclosure of private facts for the purpose of ridiculing the complainant. Accordingly, the Authority concludes that neither Privacy Principles (iii) nor (iv) were transgressed.

[20] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
19 June 2003

Appendix

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

1. TG’s Formal Complaint to the Broadcasting Standards Authority – 18 March 2003
2. TVNZ’s Response to the Authority – 9 April 2003