BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(c) of the Broadcasting Act 1989
Sunday – item about marketing 42 Below vodka in the American market – featured interview with gay bar owner – allegedly in breach of privacy

Findings
Standard 3 (privacy) – no private facts revealed – consent given for interview – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item broadcast on Sunday on TV One at 7.30pm on 12 June 2005 featured a marketing manager, James Dale, who had been appointed to promote a New Zealand vodka called 42 Below in the American market.

[2] The item included an interview with the owner of a gay bar, John Libonati, who had sent Mr Dale an email condemning the disparaging comments Mr Dale had made about gay culture. Mr Libonati said that he had received a reply from James Dale which had included a number of insults.

Referral to the Authority

[3] Juliana Venning complained directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989, that the item had breached the privacy of Mr Libonati.

Standards

[4] Standard 3 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:

Standard 3 Privacy

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

Privacy Principles

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy.  Children’s vulnerability must be a prime concern to broadcasters.  When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Broadcaster’s Response to the Authority

[5] In its response to the Authority, TVNZ stated that there had been no invasion of Mr Libonati’s privacy. It contended that Mr Libonati, like Mr Dale, had taken the opportunity to obtain some free publicity. TVNZ argued that privacy principle (vii) was relevant, because Mr Libonati had consented to his appearance on the programme. It did not uphold the complaint.

Authority's Determination

[6] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

[7] An essential element of a privacy complaint is that private facts are disclosed about an individual without their consent. In the present case, the Authority notes that the item disclosed no private facts about Mr Libonati. It also observes that Mr Libonati clearly consented to appear in the item, and participated freely. In the circumstances, no issue of privacy arises.  

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 August 2005

Appendix

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

1. Juliana Venning’s privacy referral to the Authority – 12 June 2005
2. TVNZ’s response to the Authority – 29 June 2005