BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item reported that a 40-year-old man had been accused of knowingly infecting people with HIV – allegedly in breach of privacy and unfair

Findings
Standard 3 (privacy) – identifiable to limited group of people who had seen the website or the photos – allegation of criminal behaviour not a private fact – HIV-positive status normally a private fact but public interest defence applied – not upheld

Standard 6 (fairness) – high level of public interest especially in alerting those who could identify the man – guideline relating to discrimination and denigration not applicable – not upheld

This headnote does not form part of the decision.

Broadcast

[1]    An item on Close Up, broadcast at 7pm on TV One on 15 May 2009, was introduced as follows:

What kind of person knowingly infects lovers with the HIV virus? Tonight, Close Up can reveal police are investigating complaints a 40-year-old Auckland man is doing just that. It’s alleged the HIV-positive man has infected a number of young gay men, some as young as 17. It’s claimed he grooms and manipulates his victims into having unprotected sex with him. He may also be bisexual, with a history of seeking sexual contacts with young women.

[2]   A Close Up reporter interviewed a man who was friends with three men he claimed were infected with HIV by the man. He said that two of them found out they were HIV-positive at least a year earlier, and had told the accused. The reporter also interviewed an HIV researcher.

[3]   The reporter then said:

Today, police confirmed they are investigating a complaint. Close Up understands it’s against this 40-year-old man. We can’t identify him, but can tell you he looks much younger than 40, allegedly telling his victims he’s in his early 30s.

[4]   Two photos of the man were shown, one of him alone, and another of him with three other men. All of the faces, including that of the accused, were blurred in both photos. The reporter said that when Close Up had visited his house, there was no answer, and the man was not answering his phone.

Complaint

[5]   Ben Walter made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached the fairness standard, referring to guideline 6g which relates to discrimination and denigration, and also breached the accused’s privacy.

[6]   The complainant argued that the story “portrayed the accused as completely guilty and the complainants completely innocent”. He said this was due to “factual incompleteness and a lack of proper background research”.

[7]   With reference to privacy principle 1, Mr Walter noted that Close Up had broadcast a photo of the accused “with an attempt at blurring the face”. The accused had used the photo online for six years, he said, so that “thousands of people could immediately identify who the accused is”. Mr Walter argued that this breached the accused’s privacy, and said the man had left Auckland out of fear.

[8]   The complainant considered the story was inaccurate in saying that the accused knowingly spread HIV. The man also never knowingly had sex with an HIV-positive person, he said, and was adamant about avoiding such an incident. The complainant noted that “the people who have made these claims [against the man] were not once held accountable for their own adult decision”.

[9]   The complainant believed that the accused deserved a public apology along with a “complete report of the true story”, and considered that Close Up should pay for the man’s legal costs.

Standards

[10]   TVNZ assessed the complaint under Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice. Mr Walter also nominated privacy principle 1 of the Authority’s privacy principles, and guideline 6g. These provide:

Standard 3 Privacy

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

Privacy principle 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.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline 6g

Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work.

Broadcaster's Response to the Complainant

[11]   Looking at Standard 3 (privacy), the broadcaster stated it must first decide whether the person whose privacy had allegedly been breached was identifiable in the broadcast. It said that it did “not agree that the man was identifiable to the general population or even his family – these people would have no idea that the item referred to him. His face was effectively blurred in the photos, there was no distinguishing detail in the photos and he was not named”. TVNZ concluded that the man was not identifiable.

[12]   However, TVNZ said that the man may have been identifiable “to the people that he had intimate (sexual) relationships with”. These people may have seen the photo on the man’s internet dating profile. However, the man had closed down his dating profile days before the item was broadcast, so anyone who had suspicions could not have confirmed them in this way, TVNZ said.

[13]   TVNZ also noted that the photos were “fairly generic”, with the faces blurred, and that there was nothing in the background of the photos that indicated where the photos were taken or who was in the photos.

[14]   TVNZ concluded that, if the man was identifiable, the disclosure that he was HIV-positive was in the public interest, and particularly important for the people who may have recognised him. In fact, it said, the police released one of the photos used in the item “in the hope that the other men in the photo would recognise themselves (not the accused) and get tested for HIV”. Accordingly, TVNZ declined to uphold the privacy complaint.

[15]   Turning to Standard 6 (fairness), the broadcaster noted that the police had decided that the man had a case to answer, and he was going through the legal process to determine whether he knowingly spread HIV. It maintained that Close Up had not claimed that the accused had knowingly infected his sexual partners; it merely reported that police were investigating those allegations. Close Up interviewed two men who were entitled to offer their opinions. Close Up also attempted to contact the accused for comment, but he was not answering his phone or his door. TVNZ considered that he was “apparently aware that the story ‘had broken’ as he had previously removed his internet dating profile”.

[16]   TVNZ concluded that reporting the allegations that the accused had knowingly infected sexual partners with HIV, when the man was not named or identified, was not unfair to him. The comments made by the interviewees were their opinions. TVNZ declined to uphold the fairness complaint.

Referral to the Authority

[17]   Dissatisfied with TVNZ’s response, Mr Walter referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[18]   With regard to privacy, Mr Walter noted that the story aired before police had spoken to the accused or retrieved his medical records, let alone arrested him. He argued that the man’s photo was distinguishable by the background, and that he had “heard of people who immediately recognised him and not necessarily had sexual relations with him”. Mr Walter maintained that not everyone who had seen the man’s online profile had had sexual relations with him. He emphasised that at the time of the broadcast, “his HIV status was only an allegation”, and therefore disagreed with TVNZ’s belief that it was justified in the public interest.

[19]   Looking at fairness, the complainant considered that TVNZ’s arguments were based on facts that were released after the story, and on “assumptions/ignorance of HIV and the accused’s mental state”.

Authority's Determination

[20]   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.

Standard 3 (privacy)

[21]   When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast.

[22]   In Pacifica Shipping and CanWest TVWorks,¹ the Authority stated that in order for an individual's privacy to be breached, that person must be "identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast" (see also BA and TVNZ²).

[23]   The Authority points out that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could "reasonably be expected" to know the personal information discussed in the item - for example, details of an individual's drug use might be something that is hidden from even the closest family and friends (see Anonymous and TVNZ³).

[24]   On this occasion, the item included two blurred photos of the man: one of him alone, and one with three other men. In the Authority’s view, the average viewer would not have been able to identify the man from either photo, as his face was effectively masked. However, accepting that the first photo was posted on an internet dating site for six years, as stated by the complainant, the Authority considers that the man would have been identifiable to a limited group of people who had seen his photo on the website, or recognised the second photo.

[25]   Having found that the man was identifiable to a group of people who may not have known about the matters discussed in the item, the Authority must consider whether the broadcast disclosed any private facts about him. The Authority is of the view that two main facts were reported in the item. First, the item reported that the man was being investigated by the police following allegations that he was knowingly infecting people with HIV. Second, the item stated that the man was HIV-positive.

[26]   The Authority considers that, generally, a person’s HIV-positive status, and the fact that that person was being investigated for knowingly infecting people with HIV, would be private facts. It also accepts that some of the people who could identify the man from the blurred internet profile photo in the item would not have known that he was HIV positive. However, on this occasion, the Authority finds that the public interest defence outlined in privacy principle 8 of the Authority’s Privacy Principles applies. That principle states:

Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

[27]   In Balfour and TVNZ,⁴ the Authority identified a number of subjects that might be in the public interest, including, but not limited to the following:

Criminal matters

Issues of public health and safety

Exposing seriously anti-social and harmful conduct.

[28]   In the Authority’s view, the man’s alleged conduct was of a sufficiently serious nature, and of sufficient concern to the public, that the public interest in this matter entitled the broadcaster to alert viewers that this man was, or may be HIV-positive, and that allegations had been made that he was knowingly infecting people. This was of particular importance to those people who might have identified the man from the photos, as they were the ones most likely to be at risk, and also most likely to be able to provide information about him.

[29]   In these circumstances, having found the public interest defence applies, the Authority declines to uphold the Standard 3 complaint.

Standard 6 (fairness)

[30]   Standard 6 requires that broadcasters deal justly and fairly with any person taking part or referred to in a programme. The Authority assumes from Mr Walter’s complaint that he was concerned with fairness to the man featured in the item.

[31]   As outlined in paragraphs [26] to [28] above, the Authority considers that there was a high level of public interest in disclosing that the man was, or may be, HIV-positive, and that it had been alleged that he was knowingly infecting people with HIV. For the limited group who could identify him, it was important that they were made aware of these facts.

[32]   The Authority is aware that it has not previously explicitly found that a public interest defence can apply to general allegations of unfairness.⁵ However, previous decisions of the Authority⁶ have indicated that a proper interpretation of Standard 6, including a consideration of section 14 of the Bill of Rights Act 1990 which relates to freedom of expression, necessitates the incorporation of a public interest defence. Furthermore, the Authority is of the view that comments by Gault P and Tipping J in Hosking v Runting et al⁷indicate that any expression that is in the public interest should not be sanctioned, as any such sanction would be an unreasonable limitation on the right to free expression.

[33]   In this case, the Authority finds that disclosing to a limited group of people (see paragraph [24]) that the accused was HIV positive and was being investigated for knowingly infecting others was in the public interest. It finds that it would be an unreasonable limitation on the broadcaster’s right to freedom of expression to uphold a breach of standards on this occasion. Accordingly, the Authority declines to uphold the complaint that the accused was treated unfairly by TVNZ.

[34]   The Authority notes that Mr Walter referred to guideline 6g in his complaint, which relates to discrimination against, or denigration of, sections of the community. However, although Mr Walter named the guideline in his complaint, his complaint related solely to the way the accused had been treated as an individual. For the record, the Authority considers that nothing in the item encouraged viewers to regard gay, bisexual or HIV positive people in a negative light such that it could have been said to blacken the reputations of those sections of the community⁸. The Authority declines to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
17 September 2009

Appendix

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

1.             Benjamin Easton’s formal complaint – 18 June 2009

2.            Radio New Zealand’s response to the complaint – 9 July 2009

3.            Mr Easton’s referral to the Authority – 13 July 2009

4.            Radio New Zealand’s response to the Authority – 3 August 2009

¹Decision No. 2005-026

²Decision No. 2004-070

³Decision No. 2004-106

⁴Decision No. 2005-129

⁵A public interest defence is specifically referred to in guidelines 6b and 6c to the fairness standard, but not in the body of the standard itself.

⁶See, for example, Lindley and TV3 Network Services Ltd (2003-122/123) and Boyce and TVNZ (2004-003)

⁷CA 101/03, 25 March 2004, see paragraphs 130 and 233

⁸This test has been outlined in previous decisions including Mace and TVWorks Ltd (2008-115).