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 direct privacy complaint about an interview on Morning Report following the stabbing of an Auckland dairy worker. The interviewee (the local Neighbourhood Support Coordinator) speculated about who the victim could be and gave information about the living arrangements of the family who operated the dairy. The Authority did not find any breach of the privacy standard in relation to the victim’s family, on the basis the information disclosed did not attract a reasonable expectation of privacy. It noted in any event that the identity of the victim was officially confirmed soon after, and reporting on the circumstances surrounding the stabbing carried high public interest.

Not Upheld: Privacy

The broadcast

[1]  The 24 November 2022 broadcast of Morning Report included a segment regarding the killing of a dairy worker in Sandringham, Tāmaki Makaurau | Auckland. The report was introduced as follows:

The Sandringham community is in deep distress after a man working in a dairy there was stabbed and killed during a violent robbery yesterday. The attack happened at the Rose Cottage Superette in the Auckland suburb just after 8:00 last night. The man died in hospital. Sandringham Neighbourhood Support Coordinator [name] says they had made many attempts to get more security at the shop, that police had denied their requests. I spoke to him a few minutes ago. 

[2]  The interviewee made the following comments during the interview:

Interviewee:   [A], as the owner, [A] and his wife with two very young children and his parents, it's his father and his mother live with them as well. And their house is actually the back of the dairy. So the whole family is living onsite. And that was one of the reasons we pointed out to the police that it was important that they had some protection because it's not just the person who's in the dairy. It's the family and the young children who are living within a few footsteps of the counter…

                                                …

Kim Hill:         Do you know the victim? 

Interviewee:   I suspect that we don't, but I would expect that it's a member of the family because I heard that [A] and all his family, and that would include his father and mother who live with them, will have gone to India for a special occasion of some sort. So if it's not, if that didn't happen, then it's the father, [A’s] father. That's the only other person that could have been. But I suspect that it's that it is a friend or a relation because [A] operates with friends and relations.

The complaint

[3]  Gareth Watkins complained directly to the Authority that the broadcast breached the privacy standard of the Code of Broadcasting Standards in New Zealand:

This pre-recorded interview was broadcast the morning after a dairy worker at the Rose Cottage Superette in Sandringham was killed. At the time it was not publicly known who the victim was. The interviewee - after being asked by the interviewer - speculated that the victim was a member of the family, and specifically the owner's… father. The interviewer did nothing to highlight that this was pure speculation. The interviewee also revealed the family lived on-site. I believe it was highly offensive to speculate about the identity of the victim and to give details relating to the living situation of the family. As this was a pre-recorded interview the detail could have been easily edited out.

[4]  Responding to RNZ’s comments on this complaint, Watkins added:

• Whether or not the dairy owner’s father was named, the standard explicitly recognises an individual may nevertheless be identifiable.
• ‘Just because there was no complaint from the family doesn’t mean that they would have been comfortable with the broadcast.’
• Concerning whether the information disclosed would be highly offensive, ‘I would ask the Public Broadcaster to put itself in the position of people who knew the father: his family, friends, dairy customers, the Sandringham community and the wider community.’
• ‘The interview was broadcast nationally by an authoritative news programme. Because of this, the public could easily have come to the conclusion (wrongly) that the father was the victim of a violent, deadly crime. Who wouldn’t be highly distressed to hear speculation about the death of a loved one or someone they knew?’

The broadcaster’s response

[5]  RNZ did not consider the broadcast breached the privacy standard, saying:

• ‘Firstly, RNZ observes that who the [dairy] owner’s father is, is not a private fact. Neither was the father identified in this piece. While he is referred to in this passage, he is not identified as such. The audience is not given a name nor a physical description and nothing further about the person is revealed.’
• ‘In the context of providing local authoritative information from the Neighbourhood Support Group’s leader, no private facts about the father were revealed other than a suggestion that it may have been other family members or friends (such as the father) who may have been the murderer’s victim.’
• ‘If the father was concerned about this comment, the complainant would have no knowledge of that and no complaint has been received by RNZ from the family, or the father for that matter, to that effect.’
• ‘Even if there were private facts revealed about the father, in these circumstances it is difficult to see how the revelation of such facts would be highly offensive to a person of ordinary sensibilities as the audience was listening to a heartfelt conversation from one of the dairy's supporters who displayed ample concern for the plight of the family.’

The standard

[6]  The privacy standard¹ states broadcasters should maintain standards consistent with the privacy of the individual. It aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.²

Our analysis

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

Freedom of expression and public interest

[8]  As a starting point, we considered the important right to freedom of expression, which includes both the broadcaster’s right to offer information and the audience’s right to receive it. Our task is to weigh the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where limiting freedom of expression is reasonable and justified in a free and democratic society, in light of the harm.³

[9]  Throughout 2022 and 2023 Aotearoa New Zealand has suffered from increased violence and robberies at dairies.⁴ This culminated in the death of a person working at a dairy, as set out in this story. It was against this background that Morning Report was broadcast on the morning of 24 November 2022. The broadcast carried high public interest and provided information to New Zealanders following a high-profile murder in an ongoing crime pattern. Members of the public have a right to know about the circumstances and nature of crime in their communities, particularly where safety is threatened and a response from the government has been demanded. This demand for action resulted in nationwide protests in response to this story. In this respect the media delivers an important public service and it is important that this is done in a timely way, as information becomes available. There was high value in sharing the perspectives of some of the people close to the events and to those involved, notwithstanding the exact details had not yet been officially confirmed.

[10]  This complaint has been assessed having regard to this wider context.

[11]  While we acknowledge the complainant’s concerns as far as incorrectly identifying the victim and the impact on the family right after such tragic events, overall we have not found harm caused by this broadcast to the family’s privacy interests which outweighed the broadcaster’s right to freedom of expression or the public interest in the broadcast. We explain our reasons below.

Privacy

[12]  We first note that the privacy standard can only be considered in relation to living individuals (and therefore does not apply to the deceased victim).⁵ The complainant has confirmed that they are concerned about the privacy of the victim’s family, and the original complaint referred to the victim’s father in particular. So our decision focuses on whether the broadcast breached the privacy of any members of the victim’s family.

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

• The individual whose privacy has allegedly been interfered with was identifiable.⁶
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁷
• The disclosure would be considered highly offensive to an objective reasonable person.⁸

Identification

[14]  The broadcast named the dairy and the owner of the dairy concerned, and referred to several of his family members by their relationship to the owner, as well as the fact that they lived onsite at the named dairy.

[15]  An individual may be identifiable in a broadcast even if they are not named.⁹ We consider the members of the owner’s family referred to in the broadcast would have been identifiable through the clear association with the named owner, as well as the named dairy, and the location.

Private information over which the individual(s) had a reasonable expectation of privacy

[16]  The next question is whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy.¹⁰ Factors relevant to this assessment include, but are not limited to:¹¹

• whether the content is in the public domain
• whether the content is intimate, sensitive or traumatic in nature
• whether the individual(s) could reasonably expect the content would not be disclosed.

[17]  The complainant is concerned with two key parts of the broadcast – speculation as to who was the victim of the attack (before their identity was officially confirmed), and revealing that the family lived behind the dairy. We acknowledge the complainant’s concerns as far as the potential impact on the family, at an already traumatic time, of wrongly identifying the victim. In NH v Radio Virsa, the High Court held that false details could still constitute private information and potentially lead to a breach of privacy.¹²

[18]  However, we do not consider this was an example of ‘false’ private details being disclosed. While the interviewee speculated as to who the victim of the crime could be, and suggested this was potentially A’s father, he also stated this was unlikely as the entire family was abroad, and went on to suggest the victim could be another family member or friend of the owner. The interviewee also used indefinite language such as ‘I suspect’. Therefore we do not consider the broadcast conveyed a fact that (regardless of truthfulness) could be considered private, as the interviewee presented significant doubts as to what had actually occurred.

[19]  We find speculation regarding the victim of the attack did not amount to private information attracting a reasonable expectation of privacy. This was a developing story that carried high public interest, with details being confirmed as they came to light. In any event, the victim’s identity was officially confirmed and publicised shortly after this broadcast on the same day.¹³

[20] The complainant was also concerned with the broadcast revealing that members of the family lived behind the dairy. Private addresses, when linked to an ‘identifiable individual’ may be considered private information.¹⁴ However, local dairies are often a cornerstone of Aotearoa New Zealand communities, and it appears from coverage of the events this particular dairy and its owners were no exception.¹⁵ Many members of the Sandringham community were likely to be aware of the family’s living situation. We do not consider the living arrangements as described by the interviewee amounted to information attracting a reasonable expectation of privacy. This was important contextual information in a developing story of public interest where the safety of dairy workers nationwide was called into question, as protection was not provided by authorities even when a family was living on-site.

Conclusion

[21]  Having found the relevant information did not attract a reasonable expectation of privacy, we do not need to go on to consider the third limb of the privacy test (whether disclosure would be considered highly offensive to an objective reasonable person). However, in the context, we note we have some sympathy for the broadcaster’s argument regarding the difficulty of finding the disclosure, in the course of a sensitive interview with a concerned neighbourhood representative (focused on the risks to family living onsite), to be ‘highly offensive’.

[22]  Overall, we have not found harm caused by this broadcast to the family’s privacy interests that would outweigh freedom of expression or the public interest in the broadcast. Accordingly, we do not uphold this complaint.

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

Susie Staley
Chair
22 March 2023   

Appendix

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

1  Gareth Watkins’s direct privacy complaint to the Authority - 5 December 2022

2  Watkins further comments - 6 December 2022

3  RNZ's response to complaint - 25 January 2023

4  Watkins’s further comments - 3 February 2023

5  RNZ's further comments - 22 February 2023

6  Watkins’s final comments - 22 February 2023

7  RNZ confirming no further comments - 23 February 2023

¹ Standard 7, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at page 19
³ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁴ Luisa Girao “Rise in violent offences reported” Otago Daily Times (online ed, 2 February 2023); Lincoln Tan “Hundreds protest against Government’s lack of response to business crime and Sandringham dairy killing” NZ Herald (online ed,4 December 2022); Ireland Hendry-Tennent “Calls for PM Jacinda Ardern to declare crime crisis as dairy owners arm themselves amid spike in violent robberies” Newshub (online ed, 3 June 2022); Miriam Burrell “'These kids are doing it for fun': Dairy owners at wits' end over teens who burgle for online notoriety” NZ Herald (online ed, 9 April 2022)
⁵ Guideline 7.1
⁶ Guideline 7.2
⁷ Guidelines 7.4, 7.5 and 7.6
⁸ Guidelines 7.3 and 7.8
⁹ Guideline 7.2
¹⁰ Guidelines 7.4, 7.5 and 7.6
¹¹ Guideline 7.4
¹² NH v Radio Virsa [2022] NZHC 2412 [20 September 2022] at [123]-[124] see: ‘In my view the proper focus is on the quality of the information as opposed to veracity, to determine if there is a reasonable expectation of privacy’… ‘In the context of a broadcast said to have referenced both truthful and untruthful private disclosures, I think it appropriate the false disclosures be considered alongside the others under the privacy standard.’; See also: Ursula Cheer ‘Burrows and Cheer: Media Law in New Zealand, 8th edition’ Lexisnexis at page 338 6.2.1(c)
¹³ RNZ “Sandringham dairy stabbing: Family seek ‘justice’, owners plan nationwide protest after death of [the victim]” NZ Herald (online ed, 24 November 2022)
¹⁴ For example, see DV and MediaWorks TV Ltd, Decision No. 2019-021, at [18] citing QS and Television New Zealand Ltd, Decision No. 2014-42, at [8], and South Pacific Pictures Ltd and RadioWorks Ltd, Decision No. 2008-017
¹⁵ Katie Ham, James Halpin and Sophie Harris “Sandringham stabbing: Suspect dropped till in rubbish bin, stabbed victim in the street” Stuff (online ed, 24 November 2022) see: ‘“We have lived in Sandringham my son’s whole life, and [the dairy owner] and his family have been a huge rock.” Sandringham resident Mark Ward was at the cordon on Thursday morning. Rose Cottage is his local dairy. On Tuesday night, he noticed someone new behind the counter. “I asked whether the family had gone back to India – everyone knows and loves them around here.”’