BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(c) of the Broadcasting Act 1989
Holmes – two items about allegations of sexual abuse against former church worker – described in second item as “sexual monster” – named and photographs shown – alleged breach of privacy – second item included recent footage of church worker allegedly taken without permission

Findings
Standard 3 (Privacy) and Guideline 3a – Privacy Principles (i), and (iv) – disclosure was a breach of privacy principle (i) but justified in the public interest – not upheld

Standard 3 (Privacy) and Guideline 3a – Privacy Principles (iii) – footage of man taken from public place – not upheld

This headnote does not form part of the decision.

Broadcast

[1] Allegations of sexual abuse by the former supervisor at an orphanage run by the Presbyterian Church in the 1970s were made in items on Holmes broadcast on TV One at 7.00pm on 15 and 22 June 2004. The allegations were directed at a named man and photographs of him were included in the items. Most of the accusers who had been children in the orphanage were also identified. The items noted that the former supervisor denied the charges and had declined to be interviewed. A spokesperson for the Presbyterian Church participated in each item.

Complaint

[2] Caren Wilton complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the items, by naming him, had breached the former supervisor’s privacy. His privacy had also been breached, she wrote, through the use of the photographs and, by showing some recent footage of him at his home which had been filmed without his consent. She expressed particular concern that he had been described as a “sexual monster” on TV One’s website.

[3] Pointing out that the man had not been charged with the incidents which were alleged to have occurred some 30 to 40 years previously, Ms Wilton expressed the opinion that there was no public interest in either screening the footage and/or in naming the man.

Standards

[4] TVNZ assessed the complaint under Standard 3 and Guideline 3a of the Free-to-Air Television Code of Broadcasting Practice, and Privacy Principles (i), (iii) and (vi). They read:

Standard 3 Privacy

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

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy Principles

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

vi) Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

Broadcaster's Response to the Complainant

[5] TVNZ acknowledged that the man had been clearly identified in both items. Referring to Privacy Principle (vi), it argued that it was entitled to do so because the man’s identity was “of legitimate concern or interest to the public”.

[6] Pointing out that the man had been identified as an abuser by a number of people who continued to suffer trauma, TVNZ contended that the fact that the events occurred more than 30 years ago was not relevant. TVNZ argued that it was a legitimate function of the news media to expose wrong doing and the purpose of identifying the man, it wrote:

…was such as to bring credence to the allegations and make them a matter of obvious concern and interest.

[7] TVNZ also noted, first, that the item had made clear the police interest in the accusations, and secondly, that the man had been given every opportunity to comment. It added:

When he declined to do so, the items stated unambiguously and repeatedly that [the man] is denying the allegation.

[8] Failure to broadcast the information contained in these items, TVNZ hypothesised, would amount to a serious dereliction of its “freedom of expression” obligations in the New Zealand Bill of Rights Act 1990.

[9] In regard to the recent footage of the alleged abuser, TVNZ advised that it was shot from a public place. TVNZ concluded:

While we respect Ms Wilton’s concern for the now elderly [man], we note that her letter contains no indication of sympathy for the people who, with some courage threw aside their own right of privacy and revealed the most painful and intimate details of the abuse they suffered.

[10] TVNZ recommended that the Authority decline to uphold the privacy complaint.

Complainant’s Final Comment

[11] Ms Wilton did not respond to the Authority’s request for a final comment.

Authority's Determination

[12] The members of the Authority have viewed tapes of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.

[13] The former supervisor of the orphanage was identified in the items broadcast on Holmes on 15 and 22 June. In the former item he was named. The latter item also included recent footage of him at home which, TVNZ explained, was filmed from a public place. It was apparent that he was not aware that he was being filmed. Further, the Authority notes that the man was given the opportunity to respond to the allegations, but had declined to do so. However, the charitable organisation for which he was working, responded to the allegations.

[14] The Authority accepts that an accusation of sexual abuse, when the charges have not been heard by a criminal court, amounts to the disclosure of private facts. Furthermore, it is of the opinion that the allegations and their disclosure are, in the words of Privacy Principle (i), “highly offensive and objectionable to a reasonable person of ordinary sensibilities”.

[15] TVNZ contended that the disclosure of the allegations and the man’s identity was justified in the public interest which, it noted, was a defence under privacy principle (vi) to an individual’s claim for privacy.

[16] Having examined the matters disclosed in the item, the Authority agrees that the public interest defence was applicable on this occasion. The disclosure was not merely of interest to the public, but in the public interest because of:

• the position of trust the man held at the time the alleged behaviour was said to have occurred
• the vulnerability of the children said to have been abused
• the number of people who stated that they were victims and details of the alleged abuse which they gave during the broadcasts.

[17] In these circumstances, the Authority considers that while the item disclosed private facts in contravention of Privacy Principle (i), the broadcaster was entitled to broadcast the items in the public interest.

[18] In addition, in regard to the specific allegation about the footage of the man shown in the second item, TVNZ advised that it was shot from a public place. The Authority accepts that filming people in or from a public place without their consent does not, other than in limited circumstances, amount to a breach of privacy. As the broadcast was justified in the public interest, the limited circumstances did not apply on this occasion and, accordingly, the Authority concludes that the broadcast on 22 June did not amount to a breach of privacy principle (iii).

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

Signed for and on behalf of the Authority

Tapu Misa
Member
30 September 2004

Appendix

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

1. Caren Wilton’s Privacy Complaint to the Broadcasting Standards Authority – 1 July 2004
2. TVNZ’s Response to the Authority – 28 July 2004