BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority upheld a privacy complaint about an item on 1 News reporting on residents’ concerns about ‘boy racers’ in a particular Christchurch suburb. It featured an interview with a resident reported as being ‘too scared to be identified’. Close-up footage, including a side-on view of part of her face (unblurred), revealed her demographic, gender, the length and colour of her hair, voice, profile of her nose, clothes, watch, a distinctive ring and the side of her glasses. The Authority found these features enabled identification of the interviewee beyond family and close friends. Their disclosure would be highly offensive to an objective reasonable person in her position, given she participated on the understanding she would not be identified. The Authority was not persuaded the defence of informed consent applied to the breach of the woman’s privacy. The broadcaster maintained the interviewee was comfortable with the item broadcast (and later obtained a note from her to this effect). However, the broadcaster did not provide sufficient evidence the interviewee fully understood she would be depicted in a manner that enabled her to be identified, and gave informed consent for this prior to the broadcast.

Upheld: Privacy

No Order

The broadcast and the complaint

[1]  On 22 September 2020, a story on 1 News reported on ‘boy racers’ in a particular ‘almost abandoned’ area of Christchurch, in which only ‘about 25’ occupied houses reportedly remain. The item featured an interview with a resident ‘too scared to be identified’ as she feared retaliation from the boy racers for speaking out.

[2]  Close-up footage, including a side-on view of part of her face (unblurred), revealed her gender, demographic, the length and colour of her hair, the profile of her nose, voice, clothes, watch, a distinctive ring on her right hand and the side of her glasses.

[3]  Nola Wicks, who we believe to be an unrelated member of the public, complained the interviewee was able to be identified by these details and was therefore in danger. She submitted her complaint directly to the Authority under the privacy standard.¹

The broadcaster’s response

[4]  The broadcaster did not find any breach of privacy because:

• The limited information given about the woman would not lead to her being identified beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.
• Even if the woman was able to be more widely identified, she gave informed consent concerning her portrayal in the item and it is not a breach of privacy where the person concerned has consented to the disclosure. She has not expressed any concerns or made a complaint since the item was broadcast.

[5]  In response to the Authority’s request for details and evidence of the woman’s informed consent, the broadcaster subsequently clarified that the camera-person who filmed the interview advised the interviewee had agreed to ‘close-ups of her hands etc, but nothing showing her front on’.

The standard and relevant guidelines

[6]  Broadcasters should maintain standards consistent with the privacy of the individual.² The privacy standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.³

[7]  Generally, there are three criteria for finding a breach of privacy:

a)  the individual whose privacy has allegedly been interfered with was identifiable⁴

b)  the broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy⁵

c)  the disclosure would be considered highly offensive to an objective reasonable person.⁶

Our decision

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

[9]  We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of content and information and the audience’s right to receive it. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that justifies placing a limit on the right to freedom of expression.

[10]  In this case, we have found the potential harm to the interviewee’s privacy interests, in circumstances where she participated on the understanding she would not be identified and was fearful of retaliation, outweighed freedom of expression. Our reasons are set out below.

Identification

[11]  The key issue is whether the interviewee was ‘identifiable’. The privacy standard applies only to identifiable individuals,⁷ so if she was not identifiable we cannot find a breach of the standard.

[12]  The test is whether the interviewee was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁸ In some cases an individual may be identifiable even if they are not named or shown.⁹ Broadcasters that take steps to mask a person’s identity to avoid a privacy breach must take care that the masking is effective.¹⁰ In some cases, where there is a unique combination of identifying features within the broadcast (and sometimes also information readily available outside of the broadcast), merely masking the person’s face may be inadequate.¹¹ This concept is known as ‘jigsaw’ identification.¹²

[13]  In this case, the combination of identifying features was sufficient to enable the interviewee to be identified beyond family and close friends who would reasonably be expected to know about the matter dealt with (that she was expressing her concerns about the boy racers, on the condition she would be anonymised).

[14]  The broadcast revealed various identifying features of the interviewee, as outlined in paragraph [2].

[15]  It also confirmed the interviewee’s location (a named suburb in Christchurch) and the fact she was in one of ‘about 25’ occupied houses which reportedly remain in the area. In other words, this is a very small community.

[16]  It is likely other people who know or have dealings with the interviewee would be able to identify her from these details. In addition, anyone seeking to discover her identity (for example those from whom she feared retaliation) would likely be able to do so by surveying the area with reference to those details, particularly given the size of the community.

[17]  The first criteria, that the individual was ‘identifiable’, was therefore met.

Reasonable expectation of privacy

[18]  The next question is whether the broadcast disclosed information about which the interviewee had a reasonable expectation of privacy.

[19]  There was clearly a reasonable expectation of privacy regarding the interviewee’s identity and the concerns she was speaking out about given, as reported in the item, she was ‘too scared to be identified’ and feared retaliation. She took part on the understanding she would not be identified. The aggressive and intimidating nature of the ‘boy racers’, as reported on, added to the gravity of her concerns.

[20]  The broadcast therefore disclosed private information and met the second criteria for finding a breach of privacy.

Highly offensive disclosure

[21]  The third criteria is that the disclosure would be highly offensive to an objective reasonable person in the position of the person affected. The disclosure of private facts is likely to be highly offensive where:¹³

• it is done for the purpose of encouraging harassment
• the material is particularly embarrassing, sensitive or traumatic, or has the potential to impact negatively on reputation
• the person is particularly vulnerable
• the broadcast is exploitative or gratuitous
• the person concerned has made efforts to protect his or her privacy, or has not consented to the broadcast.

[22]  The disclosure of the interviewee’s identity in this case, in connection with her concerns about the ‘boy racers’, was particularly sensitive. For the same reason, she was also particularly vulnerable. She also made efforts to protect her privacy by agreeing to be interviewed on the condition she would not be identified. She did not consent to the disclosure of her identity.

[23]  Accordingly, we find the disclosure of her identity in the broadcast would be considered highly offensive to an objective reasonable person.

[24]  The three criteria for a breach of privacy were accordingly met in this case.

Defence of informed consent

[25]  Having found a breach of the woman’s privacy, the final step is to consider whether any defences were available to the broadcaster.

[26]  The broadcaster submitted that even if the woman was identifiable, the privacy standard was not breached because she gave informed consent ‘concerning the way that she would be portrayed in the 1 News item’, on the basis she agreed to ‘close-ups of her hands etc, but nothing showing her front on’.

[27]  It is not a breach of privacy to broadcast private information where the person concerned has given informed consent to the disclosure.¹⁴ Informed consent is provided where a person:¹⁵

• is aware he or she is contributing to the broadcast
• understands the true context and purpose of the contribution
• understands the nature of the consent and its duration
• freely agrees to contribute.

[28]  The level of consent required may vary depending on the type of programme and the particular circumstances in each case.¹⁶ The Codebook guidance indicates, however, that informed consent should generally be written, recorded, or obvious from the circumstances.¹⁷

[29]  In this case, the interviewee clearly did not want to be identified and participated on that condition. Nevertheless we have found she was identifiable for the purposes of the standard. The fact the interviewee reportedly agreed to ‘close-ups of her hands etc, but nothing showing her front on’ is not sufficient evidence the interviewee understood and consented to the numerous identifying features ultimately shown in the item. There is no written or recorded evidence the woman gave informed consent to being depicted in the manner shown, prior to the broadcast.

[30]  The fact she has not raised concerns since the broadcast is also not evidence the interviewee gave informed consent (this is discussed further from [36] – [40] below). People may choose not to complain for a variety of reasons. Given the interviewee explicitly did not want to be identified, the onus was on the broadcaster to ensure the footage used did not enable identification.

Public interest defence

[31]  For completeness, although the broadcaster has not raised it, the public interest defence is not available in this case. Taking further steps to protect the interviewee’s identity would not have detracted in any way from the public interest in the interview or in the item as a whole.

Conclusion: Freedom of expression versus harm

[32]  For the above reasons, we are satisfied upholding this complaint places a reasonable and justified limit on the right to freedom of expression. The potential harm to the interviewee’s privacy interests as a result of enabling her to be identified, and more broadly given her fear of retaliation, outweighed the broadcaster’s editorial freedom in selecting the footage to include. The item as a whole could have been broadcast as it was, with a minor amendment of blurring the shots of the interviewee or selecting wider, less detailed shots. Taking additional steps to protect the interviewee’s identity would not have affected the audience’s understanding of the item as a whole.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on 1 News on 22 September 2020 breached Standard 10 (Privacy) of the Free-to-Air Television Code of Broadcasting Practice.

[33]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our preliminary findings and orders from the complainant and the broadcaster.

Submissions on Provisional Decision

[34]  TVNZ made the following submissions:

• News programmes rely on the relationships between reporters, camera-people and those they are filming, rather than contracts, to be able to produce programmes.
• This relationship was what was reflected in the information provided to the Authority regarding informed consent.
• As previously stated, the reporter, cameraperson and the interviewee talked about which shots would be used, that 1 News would use ‘close-ups of her hands etc, but nothing showing her front on’ and she agreed to this depiction.
• As previously stated, the interviewee did not complain to the cameraperson about the depiction after it aired, which ‘would have been expected if it was problematic as that reflected the nature of the relationship’.
• Following the Authority’s provisional decision, the cameraperson visited the interviewee and obtained a signed note from her (a copy of which was supplied to us). The note states: ‘I was comfortable with the Article on TVNZ about Boy Racers and how I was portrayed in Sept 2020’.
• In these circumstances, TVNZ submitted that the Authority should overturn its decision to uphold the privacy complaint, on the basis informed consent has been demonstrated.

[35]  The complainant did not make any submissions on the provisional decision or orders.

Authority’s response to submissions

[36]  The broadcaster has asked us to overturn our finding the defence of informed consent did not apply, in light of the note provided from the interviewee which it considers indicates she was happy with the programme as broadcast.

[37]  Nevertheless, the onus is on the broadcaster to demonstrate it had obtained fully informed consent, prior to the broadcast, to depict the interviewee in the manner shown. The broadcaster initially provided us with information in response to the complaint, above at [5], about undertakings it made to the interviewee. We analysed that information with reference to the actual footage shown and its potential ramifications, assessed against the relevant standard and guidelines. In the circumstances of this particular case, we found the broadcaster had not demonstrated informed consent was obtained.

[38]  The note obtained and provided to us after the fact does not change this view. A statement showing the interviewee confirmed, well after the broadcast and after the risk of identification had likely passed, that she was comfortable with how she was portrayed, is not in our view sufficient evidence she fully understood and consented to the images of her that would be used (as well as the potential ramifications), prior to the broadcast.

[39]  We are not suggesting written evidence of consent is required in every case (and the Codebook recognises this). We acknowledge the broadcaster’s submissions about the nature of news gathering, the relationships between those involved, and what is reasonable in such circumstances to obtain and demonstrate evidence of informed consent. We are concerned in particular that extra care is taken by broadcasters where members of the public agree to participate in a programme conditional on anonymity.

[40]  We therefore stand by our finding the informed consent defence does not apply in this case. We also stand by our decision to uphold the privacy complaint on the basis the interviewee participated on the condition she would not be identified, but ultimately was able to be identified through the combination of features disclosed in the item.

Authority’s decision on orders

[41]  Having affirmed our decision to uphold the complaint, we went on to consider the question of appropriate orders, if any.

[42]  When deciding whether to impose an order and the type of order to impose, the Authority considers factors including:

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• any repetition of the breach or previous warning by way of precedents
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps, or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• the length of time since the programme was broadcast and the potential damage resulting from reviving old issues or information
• past decisions and/or orders in similar cases.

Application of these factors in this case

[43]  We consider the following aggravating and mitigating factors are relevant in this case.

Aggravating factors

• We consider the conduct to be ‘low-medium’ on the spectrum in terms of the seriousness of the breach.
• The broadcaster undertook not to identify the interviewee but ultimately failed to meet its undertaking.
• The broadcaster did not uphold the complaint in the first instance.

Mitigating factors

• The interviewee confirmed after the fact she was comfortable with the footage shown. Although this did not ultimately alter our decision, it suggests, in the context of considering the appropriate remedy, that any actual harm to her privacy interests was minimal.
• The complaint was made by a member of the public, rather than by or on behalf of the individual concerned.

[44]  Weighing these factors, we have decided not to make any order in this case. We consider the most appropriate and effective remedy is publication of our decision, which provides sufficient guidance to TVNZ and to all broadcasters on the importance of taking care to avoid enabling jigsaw identification, and protecting the privacy of interviewees participating on the condition of anonymity.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

13 May 2021

Appendix

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

1  Nola Wicks’ direct privacy complaint – 22 September 2020

2  TVNZ’s response to the complaint – 22 October 2020

3  Ms Wicks’ further comments – 27 and 28 October 2020, 14 January 2021

4  TVNZ’s response to Authority’s request for evidence of informed consent – 20 January 2021

5  TVNZ’s submissions on Authority’s Provision Decision and statement of interviewee – 5 March 2021

¹ Broadcasting Act 1989, s 8(1A)
² Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Guideline 10a
⁵ Guideline 10b
⁶ Guideline 10c
⁷ Guideline 10a
⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
⁹ As above
¹⁰ As above
¹¹ As above
¹² Brereton & Riches and MediaWorks TV Ltd, Decision No. 2019-097 at [43]
¹³ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
¹⁴ Guideline 10g
¹⁵ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
¹⁶ As above
¹⁷ As above