BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

An item on 3rd Degree contained an interview with a man who was involved in a family feud over the provisions of his mother's will. The man described the legal battle with his brothers, and the item showed two old photographs of the brothers, one of whom was WS. The Authority upheld the complaint that WS' privacy was breached as he had not consented to having his image shown in the programme.

Upheld: Privacy

Order: Section 13(1)(d) $1,500 compensation to the complainant for breach of privacy

Introduction

[1]  An item on 3rd Degree looked at the consequences of not writing a will or having a will contested. It contained an interview with a man, X, who was involved in a family feud over the provisions of his mother's will. X described the legal battle with his brothers and the item contained two old photographs of the three brothers.

[2]  WS, one of the brothers shown in the photographs, made a direct privacy complaint to this Authority, alleging that the broadcast of his image and the airing of private family matters without his consent breached his privacy.

[3]  The issue is whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The programme was broadcast on TV3 on 23 July 2014. The members of the Authority have viewed a recording of the broadcast and have read the correspondence listed in the Appendix.

Did the broadcast breach the complainant's privacy?

[5]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

Identification

[6]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been 'identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast'.¹

[7]  The complainant argued that he was identifiable in the two photographs, one an old family photo and the other taken on his wedding day. He said that no attempt was made to pixelate his face and he was approached the day after the broadcast by an unknown person who recognised him from the programme.

[8]  MediaWorks responded that the old photographs of WS were only likely to have identified him to family and friends, not to the wider public. It said the producer took 'great care to publish only the information that was relevant to the story and so protected the complainant and his family as much as possible', noting that in addition to the use of dated photographs, the family's surname was not used and the location of the family home was not given in any detail.

[9]  Our view is that the complainant was identifiable in the second photograph taken on his wedding day in 2000. The photo was shown close up and appeared onscreen for approximately six seconds. The resemblance between X in the photo and how he looks now, in the programme, indicates that WS would have also been identifiable. Even if he was only identifiable to those who knew him, not all of those people would have known about the private family matters disclosed in the broadcast. While we recognise X's participation and identification in the story was his choice, this contributed to the complainant's identification. The inclusion of a photograph of their late mother and her first name also contributed. The decision by MediaWorks not to disclose the family's surname or the location of the family home was not sufficient to ensure the complainant's anonymity.

Did the broadcast publicly disclose private facts?

[10]  Privacy principle 1 of the Authority's privacy principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual's privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[11]  A 'private fact', for the purposes of this principle is information which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.²

[12]  WS argued that the details of his mother's will and the family dispute were private.

[13]  MediaWorks did not consider that the broadcast revealed any private facts because the dispute over the will went to the High Court and no name suppression orders in relation to the complainant or any other party were made.

[14]  We are not persuaded by the broadcaster's contention that simply because something has been to court, it is not private. A 'private fact', for the purposes of privacy principle 1, is information which a person can reasonably expect to remain private, and this can include information that is, or has been, in the public domain.³ We consider that details of a person's will, a family dispute over the provisions of a will, and subsequent estrangement of family members, are matters that are personal and sensitive in nature, which have the quality of 'privateness', and which a person can reasonably expect to remain low-profile if they choose not to share the details with others. While it is possible for members of the public to search and access court judgments, they are not widely disseminated, and most ordinary viewers would not be aware of such court cases.

[15]  It was the pairing of the complainant's photograph with information about the family dispute over the will that is in issue here. Had X simply gone on TV and told his story, without the photographs, there would be no breach of privacy. Thus while the details of the dispute may be public in a limited sense, in that the case went to the High Court, the complainant's image in relation to that information was certainly not public. We find that the complainant had an expectation of privacy in his image when paired with the information broadcast.

Was the disclosure of the private information highly offensive?

[16]  In considering whether the disclosure was highly offensive, we note that the 'objective reasonable person' should be viewed as being 'in the shoes' of the person whose privacy has allegedly been infringed.⁴

[17]  WS referred to 'the embarrassment [he] experienced the day after the broadcast when an unknown person, having identified [him] from the programme, approached [him] asking personal questions regarding [his] family's relationship'.

[18]  MediaWorks provided background to the broadcast and the use of the complainant's image, as follows:

• X approached the programme and proposed doing a story on his family feud over his mother's will
• the reporter approached one of the brothers (T) for comment, and while he initially agreed to appear on camera, he later agreed to the inclusion of his viewpoint only
• T indicated that he was representing the point of view of himself and his brother, WS
• the programme did not contact the complainant in respect for T's wishes for the family not to be directly involved in the story.

[19]  The broadcaster said the producer 'had given the family's interests appropriate consideration and that unfortunately there was a misunderstanding at some point as to [T's] role as a proxy for the complainant, for which we apologise'. MediaWorks said that it took steps to prevent the family's identification, as outlined at paragraph [8] above. It considered that in these circumstances, the broadcast of the complainant's image was not highly offensive.

[20]  We find that the disclosure of the complainant's image and the details of the family dispute and estrangement, without first seeking consent from him directly, was highly offensive. Family matters of this kind are always sensitive and personal. There are always competing views within the particular families and emotions often run strongly. The ventilation of these matters in court can sometimes, of necessity, become a public process. Usually there is no public interest in the public ventilation of these matters and usually if this were to happen some members of the family who have not consented and who have been caught unawares would understandably find this highly offensive.

Can the broadcaster rely on 'consent' as a defence to the breach of privacy?

[21]  It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed gave his or her informed consent to the disclosure (privacy principle 5). As noted above, MediaWorks was under the impression that T represented himself and WS. The complainant, on the other hand, said that T had no authority to represent him or his family's interests.

[22]  The Authority has repeatedly held that privacy principle 5 makes it clear that only the 'individual whose privacy is allegedly infringed' can give consent to the disclosure.⁵ We therefore find that this defence was not available to MediaWorks.

Conclusion

[23]  In deciding whether to uphold the complaint, we must take into account the right to freedom of expression guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. While we recognise the value in the subject matter of the programme – that is, the importance of making a will and obtaining sufficient legal advice to ensure one's estate is distributed in accordance with one's wishes – there was no public interest in using the complainant's image in a manner that identified him. We emphasise that his face could have easily been pixelated. The value in the story was not enhanced by revealing the identity of those involved in the family dispute.

[24]  Weighing the harm to the complainant against the right to free speech we find that upholding the complaint is a justifiable limit on the broadcaster's right to freedom of expression. Accordingly, we uphold the Standard 3 complaint.

Name Suppression

[25]  Given that we have upheld the privacy complaint, we consider it appropriate to suppress the complainant's details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of 3rd Degree on 23 July 2014 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[26]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on provisional decision and orders

[27]  The complainant submitted that the 'blatant breach of privacy... [his] embarrassment, mental fatigue, public humiliation and mounting legal bills should all be considered in awarding the maximum order against TV3'. He did not believe a public apology would be appropriate as it would draw more attention to his situation.

[28]  MediaWorks submitted that the programme went to air before the relevant precedent decision⁶ had been issued and so it believed it had 'taken the necessary steps to gain valid consent'. The broadcaster reiterated that the complainant's brother had held himself out to be the proxy for the complainant and that it took steps to protect his privacy by using only old photographs and not using the family's surname. It said it had made a 'genuine error of judgement that was not malicious or wilfully negligent', so financial compensation or penalty would not be appropriate in these circumstances.

Authority's response to submissions and decision on orders

[29]  The Authority has consistently held in past decisions that for the broadcaster to successfully rely on the defence of informed consent, it needs to be able to demonstrate that consent was obtained from the individual whose privacy has allegedly been breached – and not any intermediary.⁷ It is an established principle based on the wording of privacy principle 5 which states that the defence is available only if the individual whose privacy is allegedly infringed gives informed consent. It is this principle which we were citing, and not the facts of the particular case which was merely cited as an example of when the principle was applied.

[30]  While the broadcaster's conduct might be relevant if we were considering an award of costs to the Crown (intended to recognise a serious departure from broadcasting standards), the purpose of privacy compensation is to redress the harm caused to the individual as a result of the breach of privacy. Having found that the complainant's privacy was breached, we consider an award of compensation is justified.

[31]  In all the circumstances, and taking into account the effect of the broadcast on the complainant, the fact that it aired sensitive and very personal family matters and previous compensation awards, we consider that an award of $1,500 compensation to the complainant for the breach of his privacy is appropriate.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders MediaWorks TV Ltd to pay to the complainant costs in the amount of $1,500 within one month of the date of this decision, by way of compensation for the breach of his privacy.
The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair
11 March 2015

Appendix

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

1     WS' formal complaint – 11 August 2014
2     Further comment from WS – 12 August 2014
3     MediaWorks' response to the Authority – 9 September 2014
4     WS' final comment – 9 September 2014
5     MediaWorks' final comment – 24 September 2014
6     MediaWorks' submissions on provisional decision and orders – 15 December 2014
7     WS' submissions on provisional decision and orders – 18 December 2014

¹See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

²Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)71.56 KB

³Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)71.56 KB

⁴E.g. Andrews v Television New Zealand Ltd CIV 2004-404-3536 per Allan J

⁵See, for example, TD and MediaWorks TV Ltd, Decision No. 2014-048

⁶TD and MediaWorks TV Ltd, Decision No. 2014-048

⁷For example, CP and TVWorks Ltd, Decision No. 2012-069, O’Connell and TVWorks Ltd, Decision No. 2007-067