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 a Newshub item showing footage of children being uplifted from their homes by Oranga Tamariki. The Authority considered there was adequate information in the clip to enable identification of the children. While the story carried high public interest, protecting children’s privacy interests, particularly where the children are clearly vulnerable, must be paramount in broadcasters’ editorial decision making. Insufficient steps were taken to protect the children’s identities, and given the highly sensitive and distressing circumstances, the Authority considered the disclosure of footage enabling their identification was highly offensive.

Upheld: Privacy

Orders: Section 16(4) – $1500 costs to the Crown

The broadcast

[1]  On 26 November 2020, channel Three’s Newshub featured an item about the uplifting of children from their foster homes by Oranga Tamariki. The item included footage of the children being separated from their foster families. The children’s faces were blurred but other features were disclosed such as their voices, clothing and hair, and most of the other people around them were not masked.

[2]  The footage was taken from a Newsroom documentary which was removed from its website on 27 November 2020 by Court order.³

The complaint

[3]  The complainant made a direct privacy complaint to the Authority:

The filming of children from Oranga Tamariki is a gross violation of their privacy. They did not consent to the story and had no choice but to be filmed. They are easily and clearly identified in the story. This is a breach of children in care’s right to privacy and an exploitation of them.

The broadcaster’s response

[4]  Discovery NZ did not consider the item breached the privacy standard because:

• ‘The focus of the Newshub story was on the political fallout of the uplift.’
• ‘The faces of the children and their location are not identified in the Newshub broadcast. For a member of the general public viewing this broadcast, the identity of the children is not revealed in the brief footage that is shown at the beginning of the story… the broadcast did not reveal any material on the day of the broadcast that would have enabled identification of the children for the general viewing public’.
• ‘…as none of the children were identifiable in the broadcast, no breach of their privacy has occurred’.

The standard

[5]  Broadcasters should maintain standards consistent with the privacy of the individual.⁴ 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.⁵

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

a)  the individual whose privacy has allegedly been interfered with was identifiable⁶

b)  the broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy⁷

c)  the disclosure would be considered highly offensive to an objective reasonable person.⁸

Our analysis

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

[8]  As our starting point, we have also considered the important right to freedom of expression which includes the broadcaster’s rights to impart ideas and information and the public’s right to receive that information. Our task is to weigh the public interest and value in the item against the harm alleged to have been caused.

[9]  Media play a vital role in casting light on matters relating to government, public administration, and the conduct of organisations significantly affecting members of the public.⁹ This Newshub item carried very high public interest. It explored legitimate concerns about, and scrutinised, alleged failures by Oranga Tamariki to protect the interests of vulnerable children, with some calling for an overhaul of its operations and the resignation of its Chief Executive.

[10]  However, protecting the interests of children must be paramount in all broadcasters’ editorial decision making and striking an appropriate balance between disclosing matters of public interest and avoiding harm. In this case, the potential harm to the children shown and their families, by inadequately masking their identities in highly sensitive and distressing circumstances, outweighed freedom of expression and the level of public interest in showing the footage. We are therefore upholding the complaint, for the reasons below.

Privacy

Identification

[11]  The key issue is whether the children were ‘identifiable’. The privacy standard applies only to identifiable individuals,¹⁰ so if the children were not identifiable we cannot find a breach of the standard.

[12]  The test is whether the children were identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.¹¹ Where steps are taken to mask a person’s identity to avoid a privacy breach, the broadcaster must take care to ensure the masking is effective.¹² In some cases, where there is a unique combination of identifying features within the broadcast (and sometimes also information readily available outside the broadcast), merely masking the person’s face may be inadequate.¹³ This concept, where a person’s identity can be pieced together from a collection of identifying features, is known as ‘jigsaw’ identification.¹⁴

[13]  Although the children’s faces were blurred, we consider there were sufficient details enabling jigsaw identification of the children, beyond those who knew about the circumstances reported on:

• Most of the adults shown with the children were not masked, with the exception of one woman and one male whose faces were blurred. However the man’s voice and accent were clearly audible and the clothing of both individuals was visible.
• The children’s voices were clearly heard and their bodies, clothes, hair and hair accessories were visible.
• There were other elements surrounding the children such as cars, pets and toys.

[14]  The children could be identified by association with these other people and elements. Accordingly, the first criteria, that the children were ‘identifiable’, was met.

Was there a reasonable expectation of privacy in relation to the material disclosed?

[15]  The next question is whether the broadcast disclosed information about which there was a reasonable expectation of privacy.

[16]  Children generally have ‘high reasonable expectations of privacy’.¹⁵ It appears the footage was, for a limited time, publicly available as part of the documentary from which it was sourced, which in some circumstances may reduce a reasonable expectation of privacy.¹⁶ However it was subsequently removed by Court order, the day following the broadcast.¹⁷

[17]  Regardless, protecting the best interests of these children should be the broadcaster’s primary concern. They were particularly vulnerable and filmed during distressing and sensitive circumstances as they were removed from their home and foster family.¹⁸ A reasonable person in the circumstances could expect to be left alone and not to have a camera crew intruding upon such a moment.¹⁹

[18]  Therefore, we find there was a reasonable expectation of privacy in relation to the footage, and the second criteria for a breach of privacy was met.

Was the disclosure highly offensive?

[19]  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:²⁰

• 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.

[20]  The broadcaster highlighted that the focus of the item was on ‘the political fallout of the uplift’ and alleged failures in the operation and leadership of Oranga Tamariki. As we have said, this carried high public interest. The item however began with the footage of the children, which was used as an emotive lead into the discussion. We appreciate it provided a powerful visual accompaniment, but it was not necessary to portray the children in a manner that enabled them to be identified. The material concerned a ‘sensitive or traumatic’ event, and the children were clearly particularly vulnerable.²¹ This was an intimate situation which deserved sensitivity and care, including careful and skilled editing to ensure the identities of the children were protected by masking all features which could identify both the children and those with them in the footage.

[21]  An objective reasonable person in these circumstances would consider the disclosure of the footage to be highly offensive. Therefore, the third criteria has been met, and we find the broadcast of the footage breached the children’s privacy.

Defences to breach of privacy

[22]  The final step is considering whether any defence is available to the broadcaster, to the breach of privacy.

[23]  The broadcaster has not suggested informed consent was obtained for the disclosure and broadcast of the footage. Regardless, we do not consider using the footage was in the best interests of the children.²² The informed consent defence does not apply.²³

[24]  It is also a defence to a privacy complaint to disclose matters of legitimate public interest.²⁴ The level of public interest must relate to the particular material disclosed (in this case, the footage of the children), and must be proportionate to the seriousness of the breach of privacy in order for the defence to apply.²⁵

[25]  We recognise the vital role news media have played in drawing public attention to the issues and challenges facing Oranga Tamariki, and scrutinising its effectiveness. However, the footage of the children, in a form which enabled them to be identified, was not necessary for this overall purpose. Given their vulnerability, and the sensitive circumstances, more care should have been taken to ensure the privacy of the children was protected and respected. The story could have been told, within the boundaries of the standards, without the identifying details. The public interest defence is therefore not applicable in this case.

[26]  For the same reasons, we find the potential harm to the children justifies placing a reasonable limit on the broadcaster’s right to freedom of expression.

[27]  Accordingly, we uphold the privacy complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Discovery NZ Ltd of an item on Newshub Live at 6pm on 26 November 2020 breached Standard 10 (Privacy) of the Free-to-Air Television Code of Broadcasting Practice.

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

Parties’ submissions on preliminary findings

[29]  The complainant suggested our decision contained inconsistencies, in one paragraph noting that a reasonable person in the circumstances ‘could expect to be left alone and not to have a camera crew intruding upon such a moment’ and in another referring to the possibility of taking steps ‘such as further editing or blurring the footage’. The complainant considered these were ‘providing differing advice to the broadcaster on the appropriateness of the broadcast and on how to handle sensitive subject matter going forward’.

[30]  We have adjusted paragraph [25] above to reflect these comments and signal guidance to the broadcaster with respect to preventing identification of the children. For clarity, however, we reiterate that finding a breach of privacy requires each of the three criteria to be met before moving on to the next (paragraph [6]). The first is that the privacy standard applies only to individuals who are ‘identifiable’. Our decision signals that, had the broadcaster taken further steps to anonymise the children (and those around them) to prevent them being identified, the first criteria would not be met, and there would therefore be no breach. In that case we would not have gone on to consider whether or not the children had a reasonable expectation of privacy (the second criteria), or made the comments highlighted by the complainant at the beginning of paragraph [29].

[31]  Discovery NZ submitted:

• ‘Newshub did not deliberately set out to identify the children, indeed there was certainly no intent to cause these children harm.’
• ‘We felt we had taken sufficient steps to protect their identities, however we acknowledge that further steps could have been taken and would like to assure the Authority that such care will be taken for future broadcasts.’

Parties’ submissions on orders

[32]  The complainant sought an order for compensation for the breach of privacy of $5,000²⁶ to be paid to the tamariki’s whanau for the following reasons:

• ‘While all children are vulnerable, children in foster care are especially so. A reasonable person would be expected to know that a tamaiti who is in foster care has already experienced serious trauma in life requiring them to be removed from their parents.’
• ‘As the Authority has found the children were identifiable in the broadcast, this creates concern for me that the children and consequently their whanau are identifiable in their new community. …I am concerned that the whanau and tamariki have experienced backlash and stigma from the community as a result of this broadcast.’
• ‘I believe such an egregious breach of the children’s privacy has caused emotional, spiritual and psychological harm to them…I hope [the penalty] would go some way to addressing the distress for the children to enable them to recover.’
• ‘It is important that broadcasters in future observe appropriate standards and guidelines regarding privacy. A clear message needs to be sent to broadcasters that it is not acceptable to take advantage of children or other vulnerable groups simply to create a more compelling news story.’

[33]  Discovery NZ submitted:

• ‘…our undertaking of future care on privacy matters and the publication of the decision is appropriate and sufficient remedy on this occasion.’
• ‘We would query the appropriateness of a broadcast statement as a remedy here, as we have concerns that such a statement would only serve to bring attention back to the children – it would be difficult to describe the essence of the uphold without reference to the children involved.’ (The complainant subsequently confirmed they were not seeking an order for a broadcast statement, for the same reasons.)

Our decision on orders

[34]  In determining whether orders are warranted, we have taken the following factors into consideration:²⁷

• 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
• the objectives of the upheld standard
• 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 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
• past decisions and orders in similar cases.²⁸

Application of these factors in this case

[35]  We consider the following aggravating and mitigating factors are relevant in this case:

Aggravating factors

• We consider the conduct to be ‘medium’ on the spectrum in terms of the seriousness of the breach.
• The broadcaster had editorial control over the content of the Newshub broadcast and could have done more to protect the interests of the children affected. The nature of the footage and the story was such that Discovery NZ ought to have recognised the potential for harm to particularly vulnerable children.
• The broadcaster did not uphold the complaint in the first instance or acknowledge that the footage and corresponding Newsroom story had subsequently been taken down by Court order.

Mitigating factors

• The broadcaster removed the video from the Newshub website promptly following the Court order.
• The original footage has not been available to view online following the initial Court order, minimising the likelihood of ongoing harm.
• The broadcaster has accepted our decision and made an undertaking to ensure that care will be taken in future broadcasts so the privacy of children is sufficiently protected and this type of harm prevented.

Broadcast statement

[36]  Given the sensitive nature of the issue, we agree with the broadcaster and the complainant that a broadcast statement would be inappropriate.

Privacy compensation

[37]  Compensation for a privacy breach is intended to compensate for harm resulting from a breach of privacy and so is paid to the person who suffered the harm. In the current circumstances, where the complaint was made by a third party and we do not have information about the impact of the broadcast on those involved, we do not consider it appropriate to award such compensation.

Costs to the crown

[38]  The Authority may make an award of costs to the Crown, having regard to various factors including the conduct of the broadcaster, the seriousness of the breach and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[39]  We have considered the factors outlined above. While the broadcaster has undertaken to take care in similar situations in the future, we do not consider this to be sufficient in this instance. We find the conduct and seriousness of the breach justifies an award of costs to the Crown.  We are not satisfied the broadcaster was sufficiently mindful of the potential for jigsaw identification to occur, and the potential harm this could cause. The affected were children at their most vulnerable and more care should have been taken to protect their privacy and best interests. For these reasons, we consider the breach to be ‘medium’ on the spectrum in terms of its seriousness, and a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations.

[40]  In considering the quantum of costs, we have reflected upon the factors discussed above, as well as previous Authority decisions and consider an order of costs in the amount of $1,500 is appropriate. We also encourage the broadcaster, and all broadcasters, to ensure their staff receive education regarding jigsaw identification and how this should affect their editorial decision making.

Order

Under section 16(4) of the Act, the Authority orders Discovery NZ Ltd to pay to the Crown costs in the amount of $1,500 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Paula Rose

Member

29 June 2021

Appendix

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

1  WL’s privacy complaint to the Authority – 29 November 2020

2  Discovery NZ’s response to the complaint – 7 December 2020

3  WL’s final comments – 11 January 2021

4  Discovery NZ’s confirmation of no further comment – 14 January 2021

5  WL’s submissions on the Authority’s Provisional Decision and orders – 9 March 2021

6  Discovery NZ’s submissions on the Authority’s Provisional Decision and orders – 9 March 2021

7  WL confirming not seeking a broadcast statement – 24 March 2021

¹ MediaWorks TV Ltd, the broadcaster formerly responsible for channel Three, changed its name to Discovery NZ Ltd on 1 December 2020.
² Judge Bill Hastings declared a conflict of interest and did not participate in the determination of this complaint.
³ Tim Murphy “Court orders Newsroom to remove Oranga Tamariki Video” Newsroom (online ed, 27 November 2020)
⁴ Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Guideline 10a
⁷ Guideline 10b
⁸ Guideline 10c
⁹ Guidance: Privacy, Broadcasting Standards In New Zealand Codebook, page 63
¹⁰ Guideline 10a
¹¹ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹² As above
¹³ As above
¹⁴ Brereton & Riches and MediaWorks TV Ltd, Decision No. 2019-097 at [43]
¹⁵ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
¹⁶ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹⁷ Tim Murphy “Court orders Newsroom to remove Oranga Tamariki video” Newsroom (online ed, 27 November 2020). See also Solicitor-General v Newsroom NZ Limited [2020] NZHC 3441
¹⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61. We also note section 11B of the Family Court Act 1980 which in principle protects the identity of persons under the age of 18, who are the subject of or are a party to family court proceedings.
¹⁹ See the majority decision in Rae, Schaare and Turley and Television New Zealand Ltd, Decision No. 2010-007 from paragraph [33], concerning close-up filming of a grieving family as their loved one was treated by paramedics.
²⁰ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
²¹ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
²² As above
²³ Guideline 10g
²⁴ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63
²⁵ Guideline 10f and Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63
²⁶ Broadcasting Act 1989, s 13(1)(d)
²⁷ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
²⁸ See, for example, Rickard and Television New Zealand Ltd, Decision No. 2016-098 and IY and MediaWorks TV Ltd, Decision No. 2018-032