BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has reconsidered and not upheld a privacy complaint about an item on 1 News reporting on residents’ concerns about ‘boy racers’ in a particular Christchurch suburb, following TVNZ appealing the Authority’s original decision to the High Court. The item featured an interview with a resident reported as being ‘too scared to be identified’. The Authority originally found she was identifiable and the High Court dismissed the appeal on that point but directed the Authority to reconsider the remaining issues in light of new affidavit evidence filed by TVNZ in the appeal. Having reconsidered the matter, the Authority remained of the view the disclosure of the woman’s identity in the circumstances would be highly offensive to an objective reasonable person. However, based on the affidavit evidence the Authority found the defence of informed consent was available to the broadcaster.

Not Upheld: Privacy

Introduction

[1]  This decision concerns a complaint previously upheld by this Authority under the privacy standard.¹ It has been directed back to us for reconsideration following an appeal of the Authority’s decision to the High Court by the broadcaster, Television New Zealand Ltd (TVNZ).

The broadcast and the complaint

[2]  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 remained. The item featured an interview with a resident ‘too scared to be identified’ as she feared retaliation from the boy racers for speaking out. 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, a member of the public unconnected to the interviewee, 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.

The standard and relevant guidelines

[4]  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

[5]  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

[6]  There are also two defences available to a broadcaster for a breach of privacy: the disclosure of private information was justified by legitimate public interest; or the individual gave their informed consent to the disclosure, which is the defence TVNZ seeks to demonstrate in this case.

The Authority’s original determination

[7]  The Authority originally found:⁷

• The combination of the interviewee’s features shown in the item, alongside details about the location and the size of the community, enabled identification of the interviewee beyond family and close friends.
• There was a reasonable expectation of privacy in relation to the interviewee’s identity, given, as the item acknowledged, she was ‘too scared to be identified’.
• The disclosure of features enabling her to be identified would be highly offensive to an objective reasonable person in the interviewee’s 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). In response to the Authority’s request for details and evidence of the woman’s informed consent, the broadcaster informed the Authority by email 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 Authority did not consider the email or the note from the interviewee to be sufficient evidence of informed consent.
• Accordingly the privacy standard was breached, and upholding the complaint placed a justified and reasonable restriction on the broadcaster’s right to freedom of expression.

Broadcaster’s appeal to the High Court

[8]  TVNZ appealed the Authority’s decision to the High Court, arguing the Authority acted on the wrong principle; failed to take relevant matters into account; and was plainly wrong. TVNZ provided sworn affidavit evidence from a number of TVNZ employees and the interviewee outlining the filming and consent process for this particular broadcast item. This included a statement from the interviewee:

…I was happy with my interview. The way I was shown matched the way I expected to be shown when I gave the interview. I was not surprised by this as it was clearly agreed where the filming was being done and that I would not be identified by the boy racers.

I was comfortable with how I was portrayed on 1 News and felt that I could not be identified by any boy racers.

[9]  In its judgment issued on 31 March 2022,⁸ the High Court (Justice Robinson):

• Dismissed the appeal on the issue of whether the interviewee was identifiable, as the Authority’s reasons for finding she was identifiable were reasonably available to the Authority.⁹
• Directed the Authority to reconsider the remaining issues in light of the further evidence TVNZ filed in the appeal (the affidavits). The Court was clear the Authority could not be criticised for not considering information it did not have, and in the Court’s view nothing had prevented TVNZ from providing the same level of information given in the affidavits, during the original complaints process. The three issues for reconsideration are:
  • Whether the broadcast disclosed information about which the interviewee had a reasonable expectation of privacy.
  • Whether the disclosure would be highly offensive to an objective reasonable person in the position of the interviewee.
  • Whether the defence of informed consent was available to TVNZ.
• Pointed the Authority in particular to the submissions made in support of the complaint and the Authority’s decision by counsel assisting, Fletcher Pilditch QC (appointed by the Court, as the complainant chose not to take part in the appeal).

[10]  TVNZ then made some further submissions to us, which it summarised as follows:

• ‘We appreciate the Authority did not have the benefit of this evidence [the affidavits], and this has been a key learning for us when providing responses to the Authority going forward.’
• TVNZ acknowledges and respects the Court's determination that the Authority had grounds to find the interviewee was identifiable.
• However, TVNZ does not consider the disclosure of the interviewee’s identity was in any way highly offensive to an objective reasonable person because:
  • The broadcast itself was a matter of legitimate public interest.
  • There was no ‘harmful or unmeritorious motivation’ in the broadcast.
  • The interviewee was not in any way vulnerable.
  • The interviewee gave ‘clear and informed consent to the interview in the manner in which it was filmed (including as to the extent she was identifiable)’.
  • The complainant, now aware of the full factual background, also no longer considers the matter worthy of complaint.
• ‘The interviewee clearly consented to the Broadcast and to the manner in which she would be depicted. To impose more stringent informed consent requirements in this particular context would create an impractical and unnecessary “chilling effect” on newsgathering in New Zealand once all evidence is considered.’
• There are other matters to take into account as well, such as the interviewee’s confirmation she is ‘still happy with the interview and how I was shown’, and her right to freedom of expression.

Our decision

[11]  With the exception of our Chair, the Authority members now considering this matter post-appeal are different to those who originally determined the complaint. We have watched the broadcast and read the materials listed in the Appendix which include the High Court judgment, TVNZ’s submissions and Mr Pilditch QC’s submissions.

[12]  As the original Authority members did, we have also considered the important right to freedom of expression, which is our starting point in determining any complaint. 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. The alleged harm in this case is to the interviewee’s privacy interests, in circumstances where she did not want to be identifiable in the broadcast.

Reasonable expectation of privacy

[13]  The first issue we have been directed by the Court to reconsider is whether the broadcast disclosed information about which the interviewee had a reasonable expectation of privacy.

[14]  The Authority originally determined:

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.

[15]  Mr Pilditch QC submitted on this point:

• The Authority correctly identified the privacy expectation as pertaining to the interviewee not being identified by those who the interviewee feared, and who might retaliate, namely boy racers, rather than complete anonymity. The Authority was also correct that TVNZ, in its broadcast, accepted this was the interviewee’s expectation of privacy.
• The interviewee’s account of her expectation in her affidavit is consistent with this. She explained she was concerned about ‘being identified by the boy racers’ because they could ‘cause damage and I did not want them to know who I was’.
• Therefore if the interviewee could not be identified by boy racers then her expectation was met. But if she could be identified by boy racers then her expectation was not met. The Authority found there was enough detail and information from which she could be identified by boy racers, therefore the expectation was not met.
• In relation to filming, TVNZ was possibly suggesting that because the interviewee consented to certain parts of her being filmed, her reasonable expectation of privacy was confined to those parts. Mr Pilditch considered this to be:

…a cynical submission, suggesting that any possibility of being identified by boy racers was the responsibility of the interviewee because of the filming she agreed to. And if that is [TVNZ’s] submission then it must be wrong. The interviewee was only concerned to exercise editorial input into the cinematography in order to take steps to preserve her privacy vis a vis boy racers. Therefore, any agreement about what was and was not filmed only served that objective. If the interviewee consented to filming that did not serve that objective, then the interviewee’s objective of protecting herself from boy racers was not achieved. The BSA has found that the filming, in conjunction with other information in the Broadcast, did not achieve that objective. Therefore, the interviewee’s consent to the type of filming does not alter the fact that her fundamental objective, and her pre-condition to being interviewed, was not achieved by the [broadcaster]. Therefore her privacy expectation, as acknowledged in the Broadcast, was not met regardless of what filming she did and did not agree too.

[16]  We agree with both the original Authority decision and Mr Pilditch QC who made strong arguments in support of that decision, especially regarding the extent of the interviewee’s reasonable expectation of privacy and why the broadcast did not meet that expectation.

[17]  As the Authority reasoned originally, the interviewee participated in the interview and the broadcast on the condition she would not be identifiable. Although the interviewee evidently does not feel she was identifiable from the broadcast, it is clear from the affidavit she was focused on the filming and the camera angles of her that she agreed to being used. Having assessed the item as a whole against the Authority’s test and guidance for identification, the Authority found she was identifiable from the combination of the images of her and other information included. We stand by that assessment.

[18]  Therefore we find the interviewee’s identity as disclosed in the broadcast was information carrying a reasonable expectation of privacy. Put simply by Mr Pilditch QC, the interviewee’s expectation ‘was not met’.

Highly offensive disclosure

[19]  The second issue for reconsideration is whether the disclosure would be highly offensive to an objective reasonable person in the position of the person affected (the interviewee).

[20]  We have considered carefully the reasons put forward by TVNZ in support of finding it was not highly offensive (paragraph [10]), and the interviewee’s evidence in particular that she was and is still comfortable with the filming process and with what was ultimately broadcast.

[21]  We have also had regard to Mr Pilditch QC’s submissions, in summary: ‘If the interviewee expected… privacy over her identity such that she could not be identified by boy racers, but she could be identified, then this would be highly offensive to a reasonable person who sought and was assured of privacy but was not given it. This is consistent with the Code Guidance…’

[22]  The guidance signals that a disclosure of private information is likely to be highly offensive where the individual made efforts to protect their privacy. In this case the interviewee did so by agreeing to be interviewed on the condition she would not be identified.

[23]  We acknowledge and respect the interviewee’s position. It is clear from her evidence she did not find any aspect of the item highly offensive. However the Authority’s role is to apply the relevant standard and guidelines, and the ‘highly offensive’ test under the privacy standard is an objective test, not a subjective one. It is assessed from the perspective of an ‘objective reasonable person in the position of the person affected’. Viewed objectively, we consider many people would find the disclosure of their identity in a broadcast, in circumstances where they did not want to be identified and feared retaliation, to be highly offensive.

[24]  Accordingly, we find the disclosure of the interviewee’s identity in the broadcast in circumstances where she did not want to be identified meets the test of being highly offensive to an objective reasonable person.

Defence of informed consent

[25]  The final issue for reconsideration is whether the defence of informed consent was available to the broadcaster, in light of the new affidavit evidence.

[26]  Informed consent is provided where a person:¹⁰

• 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.

[27]  The level of consent required may vary depending on the type of programme and the particular circumstances in each case.¹¹ The Codebook guidance indicates, however, that informed consent should generally be written, recorded, or obvious from the circumstances.¹²

[28]  The Authority was concerned when making its original decision that the broadcaster had not sufficiently demonstrated – via brief email evidence from the TVNZ crew she had agreed to certain camera angles, and the short note subsequently obtained confirming she was happy with the item – that the interviewee fully understood and consented to the possibility she would be identifiable in the broadcast.

[29]  We have some residual concern, supported by the affidavit evidence, that the sole focus of the consent process was on the camera angles without being alert to or informing the woman of the possibility of ‘jigsaw identification’¹³ – combining the images of her with the other details included in the item. In particular, the item broadcast disclosed the name and size of the small community where the interviewee lived.

[30]  Nevertheless, we have reached the view overall the defence of informed consent is available to the broadcaster in this case. The two main reasons are:

• The interviewee has expressed clearly in her detailed affidavit evidence she was entirely comfortable with the filming and consent process, and with the item broadcast. She remains happy with it and has no concerns. It is not for us to now tell her she should not be happy with it, especially when the complaint has come from someone else.
• We acknowledge the ‘chilling effect’ argument put forward by the broadcaster that stricter consent requirements in this type of situation may unreasonably hinder newsgathering and therefore restrict freedom of expression. In the circumstances of this case, requiring written or recorded evidence of the interviewee’s consent to every possible detail in the item that may lead to her being identified, prior to the item being finalised or broadcast, would not be reasonable or proportionate. With the benefit of the affidavit evidence we are satisfied her consent to the collection of relevant identifying content was reasonably ‘obvious from the circumstances’. In particular, while the affidavit evidence focused on her consent to the particular camera angles used, we consider her consent to this depiction in a story which also identified the community in which she lived (and which was the focus of the story) could reasonably be implied.

[31]  For clarity, we remain of the view that the brief email initially provided from TVNZ crew about agreed camera angles and the short handwritten note from the interviewee did not sufficiently demonstrate her informed consent. However, had the Authority received a similar level of detail contained in the affidavits, when it originally requested ‘details and evidence’ of informed consent from the broadcaster, we believe the complaint would not have been upheld in the first instance. TVNZ has acknowledged this and we remind other broadcasters too of the importance of providing all relevant information to the best of their ability when requested during the complaints process.

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

Susie Staley MNZM
Chair
30 May 2022

Appendix

The following documents and correspondence were considered by the Authority when it determined this complaint:

1  High Court appeal judgment, Television New Zealand Ltd v Nola Wicks & Anor, CIV-2021-404-1046 [2022] NZHC 597 per Robinson J – 31 March 2022

2  Further submissions from TVNZ following the judgment, including copies of the affidavit evidence filed in the appeal – 22 April 2022

3  Submissions in the appeal by counsel assisting, Fletcher Pilditch QC –
23 September 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 Wicks and Television New Zealand Ltd, Decision No. 2020-126
⁸ Television New Zealand Ltd v Nola Wicks & Anor, CIV-2021-404-1046 [2022] NZHC 597
⁹ See paragraphs [11]-[17] of the original decision, Wicks and Television New Zealand Ltd, Decision No. 2020-126
¹⁰ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
¹¹ As above
¹² As above
¹³ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62