BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint an item on 1 News breached the complainant and her grandchild’s privacy. The item, which reported on the implications of GP shortages in Northland, included footage of the complainant and her grandchild (who was in a moonboot with crutches) leaving a medical centre, and of them in the waiting room. The Authority acknowledged the sensitive nature of health information and encouraged broadcasters to obtain the consent of persons filmed in a medical centre (particularly where children are involved). However, the Authority found there was no reasonable expectation of privacy in the particular facts disclosed (being attendance at a medical centre) noting the complainant was initially depicted outside the centre, from a public footpath, where there was no expectation of privacy. No additional information was disclosed by the subsequent footage from within the waiting room.

Not Upheld: Privacy

The broadcast

[1]  An item on 1 News broadcast on 14 July 2023 reported on the lengthy wait times to see a GP in Northland and the implications for an accident and urgent care centre. A manager at the centre noted a ‘growing number of GP clinics have closed their books to new patients and that’s putting pressure on the medical facility to fill the gaps.’

[2]  The report included footage of the centre, firstly from across the road of the front signage, followed by closer footage of the entryway where two people (a woman and a child who was on crutches and wearing a moonboot) are visible walking out of the centre.

[3]  The report included comments from a manager of the clinic; a Whāngarei resident who is registered with a distant GP clinic due to availability, and a doctor who commented on the issue of shortages and increased fees.

[4]  The item also included footage from inside the waiting room of the centre, showing the reception and patients within view, as well as of a patient during their consultation. No blurring was used.

The complaint

[5]  The complainant (XP) made a direct privacy complaint to the Authority that the broadcast breached her, and her grandson’s, privacy as they are seen walking out of the clinic, and in the waiting room. In support of her complaint, she noted:

• ‘Common sense’ would be to ask for her consent given the broadcast occurred in a medical centre, which ‘should be “Private”.’
• At the time of filming, she ‘said “no” and also shook [her] head.’
• While one shot of the complainant and her grandson may have been justified, they were featured in multiple shots in the broadcast. This is in contrast to the person that TVNZ asked for consent from, who was ‘only shown the once’.
• If found to not breach standards, the complainant considered privacy laws ‘may need changing’ as ‘permission should always be required first’ to film in medical centres.

The broadcaster’s response

[6]  TVNZ accepted the complainant and her grandson were visible for brief moments as they walked out of the centre and when they were in the waiting room.

[7]  TVNZ provided the following information surrounding the broadcast:

• The reporter was granted permission to film inside the medical centre by management.
• She intended to film the reception area and price board and some general vision inside the centre on a wide shot, not identifying anyone.
• She did seek permission from one family to film them at an appointment.
• She did not seek permission from the complainant to film her or her grandson.
• She did not see the complainant shaking her head and saying 'no' outside the centre when being filmed from the footpath as the complainant has stated.

[8]  Following notification to TVNZ of the complaint, it noted the reporter ‘has since been reminded of her privacy obligations and 1 News management are arranging a privacy law refresher for her.’

[9]  TVNZ considered footage of the complainant and her grandson within the medical centre may be in breach of the standard, but considered the following supported finding there was no breach in this instance:

• Some footage may be considered acceptable.
• There was no covert filming.
• The clinic is a ‘quasi-public place, having some public and some private features, for example providing public services (accident and urgent medical help) but also being privately owned or run and, any person may enter there uninvited to access accident and urgent medical services.’
• Referring to a High Court judgment noting ‘inviting the company of a third party is the antithesis of an interest in solitude, which is the state of being alone’, TVNZ noted there is little expectation of solitude or seclusion by [the centre’s] patients in the waiting room, a space which is open to the public and where any person may enter.¹

[10]  With reference to each shot of the complainant and her grandson, TVNZ noted the filming was not covert and there was a lesser expectation of privacy in the waiting room (which TVNZ received approval from management to film from).

[11]  TVNZ also considered the disclosure was unlikely to be offensive to an ordinary person noting the filming was not covert, the private information disclosed was of a ‘low level’ (being attendance at the centre) and there was public interest in the report, which was highlighting the GP shortage.

The standard

[12]  The privacy standard² aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.³ Accordingly, it states broadcasters should maintain standards consistent with the privacy of the individual. Guidance to the standard also states content obtained through intentional intrusion upon a person’s solitude or seclusion should not be broadcast in a way that is inconsistent with a reasonable expectation of privacy.⁴

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

a)  the individual whose privacy has allegedly been interfered with was identifiable⁵

b)  the broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy⁶

c)  the disclosure would be considered highly offensive to an objective reasonable person.⁷

Our analysis

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

[15]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁸

[16]  As the broadcaster agrees the complainant and her grandchild were identifiable in the broadcast (being clearly visible in several shots), the questions for us are whether the complainant and her grandchild had a reasonable expectation of privacy in the information disclosed, and if so, whether TVNZ’s disclosure of this information would be considered highly offensive to an objective reasonable person in their position.

[17]  As each criterion relies on the particular information disclosed, we consider it useful to identify the particular information disclosed by the broadcast, being:

• The complainant left the medical centre followed by the child.
• The child was on crutches (and wearing a moonboot in one shot).
• The complainant spoke to the receptionist, and the complainant and the child waited in the centre’s waiting room.

Reasonable expectation of privacy

[18]  The second criterion, and our first question, is whether the broadcast disclosed private information or material about the individuals, over which they had a reasonable expectation of privacy.⁹ Factors relevant to this assessment include, but are not limited to:¹⁰

• whether the content is in the public domain
• whether the content is intimate, sensitive or traumatic in nature
• whether the individuals could reasonably expect the content would not be disclosed
• the nature of the individual(s) (ie children under the age of 16 can reasonably expect high levels of privacy).

[19]  Whether an individual had a reasonable expectation of privacy is a broad inquiry taking into account all of the circumstances of the case.¹¹ Importantly, the criterion focuses on the particular facts in issue.¹²

[20]  The reasonableness requirement of the criteria ensures the individual’s subjective expectations are measured by reference to general societal values, involving an enquiry into what privacy protection an individual can expect the law to provide.¹³

[21]  We considered whether to address the information disclosed, above at paragraph [17], separately given the different locations (on a public street, and from inside the waiting room). However, given the essentially similar information disclosed in the clips we consider the information can be assessed collectively. We therefore refer collectively to the information disclosed.

[22]  Generally, a person will not have a reasonable expectation of privacy in a public place as it is accessible to, and/or in view of, the public.¹⁴ However, such an expectation may exist where it is objectively obvious from the circumstances that the individual is particularly vulnerable, for example where the individual is caught up in an emergency, is a victim of an accident, or suffering a personal tragedy or bereavement.¹⁵

[23]  In this case, we note both the complainant and child appeared calm and unemotional. In that respect, any particular vulnerability (other than the issue with the child’s leg) was not objectively obvious. The question is whether the location of the footage (at a medical centre) makes any difference to our assessment.

[24]  In determining whether there was a reasonable expectation of privacy in the information disclosed, we note the following previous findings in similar or other relevant situations:

• Doctors can reasonably expect privacy in consultations with patients.¹⁶ Counsellors similarly reasonably expect seclusion in the context of their one-on-one counselling sessions.¹⁷
• Although in a public place such as a café, conversations discussing sensitive issues (such as sexuality and conflicting religious views) have the hallmarks of private conversations that individuals could reasonably expect not to be filmed / recorded and broadcast in the context of a nationwide current affairs programme.¹⁸
• Individuals generally will not have an interest in seclusion,¹⁹ or reasonable expectation of privacy in offices which are accessible by the general public.
• A hospital settled a patient’s complaint to the Privacy Commissioner (including an apology and with payment of compensation) when hospital staff disclosed his need for an HIV test in a manner audible to others in the waiting room.²⁰
• The High Court has previously found there was a reasonable expectation of privacy in a waiting room. However, this was in a context (a massage parlour) where the waiting room was only accessible with the business operator’s consent.²¹ In the same decision it was also recognised:
  
  (a)  ‘It is simply not possible in the circumstances asserted by [the complainant], namely of a business being run from the premises that involved the frequent attendance of clients to assert an interest in solitude.’²²
  (b)  ‘Plainly, a question will arise wherever premises are used for commercial purposes as to whether, and to what extent, the occupiers had a reasonable expectation of seclusion. Each situation should be considered individually and in relation to the relevant time because, even with commercial premises that are open to the public, there may be a reasonable expectation for privacy outside business hours. In terms of the use of premises, the continuum might range from areas to which the public has unrestricted access during business hours such as shopping malls to premises where access is permitted only by appointment. I also accept that there are some activities which, even though commercial, carry a reasonable expectation of privacy such as of a person consulting a doctor or solicitor.’
  (c)  there can ‘hardly be any expectation of privacy in terms of what can actually be seen from the street.’²³

[25]  We also consider the following relevant in determining whether a reasonable expectation of privacy existed in the information disclosed in the complaint before us:

• Health information is often highly sensitive in nature.²⁴ We consider attendance at a medical clinic is capable of fitting within the scope of health information as that term is defined in the Health Information Privacy Code 2020.²⁵
• The Government has recently introduced provisions prohibiting certain activities from occurring near premises in which abortion services are provided,²⁶ including the making of visual recordings likely to cause emotional distress to persons accessing abortion services. While clearly not directly applicable to the current broadcast, the amendment reflects an acknowledgment of the potential sensitivities peculiar to the health environment.

[26]  While this was a difficult decision, in light of the authorities and context described above, we do not consider there was a reasonable expectation of privacy in the information disclosed, essentially being that an unnamed woman and a child attended a medical centre. The medical centre was accessible to the public. The initial footage of the complainant and her grandchild leaving the medical centre was filmed from a public street in which there is no reasonable expectation of privacy. While footage later in the programme showed the complainant and her grandchild in the waiting room, there was no footage of their consultation with the health professional and we do not consider any additional information was revealed by this additional filming inside the waiting room. In other words, the only information disclosed was attendance at the medical centre.

[27]  We separately considered whether the child’s privacy was breached, given the higher level of privacy expected for children and the fact he was in crutches and a moonboot, but do not consider this changes our findings. The fact of the child’s attendance at a medical centre, with no further detail (such as the circumstances leading to the need for crutches) was insufficient in this instance to attract a reasonable expectation of privacy. As noted in paragraph [23], despite the issue with his leg, the child was calm and displayed no obvious vulnerability to which a reasonable expectation of privacy might attach.

[28]  As there was no reasonable expectation of privacy in the limited facts disclosed, we do not uphold the complaint under the privacy standard. It is unnecessary for us to go on to consider whether the disclosure was highly offensive.

[29]  While this situation may not meet the threshold for a breach of the privacy standard, we agree with the complainant it would have been common sense – as well as good practice – to obtain consent from people filmed in a medical centre, particularly where children are involved. Alternatively, relevant images could have been blurred to ensure they were not identifiable.

[30]  As noted above, health information is often sensitive in nature. This is reflected in the Privacy Commissioner’s issue of a specific Code of Practice governing health information.²⁷ Filming in and around a medical centre presents unique privacy risks and care is required to respect the interests of those attending the centre.  

[31]  Finally, the broadcaster has confirmed that, on being notified of the complaint, it removed the relevant images from the bulletin on TVNZ+ and from any 1News.co.nz video/articles. We appreciate the broadcaster’s early recognition of the issues surrounding this broadcast, and the steps taken to educate the reporter about relevant privacy issues.  

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

Susie Staley
Chair
20 November 2023    

Appendix

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

1  XP’s direct privacy complaint to the Authority – 14 July 2023

2  TVNZ’s response to the complaint – 17 August 2023

3  XP’s final comments – 10 September 2023

4  TVNZ’s confirmation of no further comments – 11 September 2023

5  TVNZ’s confirmation footage no longer available online – 27 October 2023

¹ Referring to Television New Zealand Ltd v KW HC Auckland CIV-2007-485-001609, 18 December 2008 at [65]
² Standard 7, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at 19
⁴ Guideline 7.7
⁵ Guideline 7.2
⁶ Guideline 7.4
⁷ Guideline 7.3
⁸ Introduction, Code of Broadcasting Standards in New Zealand at 4
⁹ Guidelines 7.4, 7.5 and 7.6
¹⁰ Guideline 7.4
¹¹ Peters v Attorney-General [2021] NZCA 355 at [109] citing Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36]
¹² Peters v Attorney-General [2021] NZCA 355 at [108]. This is reflected in the wording of guideline 7.4
¹³ Hyndman v Walker [2021] NZCA 25 at [72]
¹⁴ Guideline 7.6
¹⁵ Guideline 7.6
¹⁶ See Winyard & Goodwin and Discovery NZ Ltd, Decision No. 2021-155 at [30]; and Dr Z and Television New Zealand Ltd, Decision No. 2012-074 at [67]
¹⁷ Seven Complainants and Television New Zealand Ltd, Decision No. 2018-049 at [32]
¹⁸ Seven Complainants and Television New Zealand Ltd, Decision No. 2018-049 at [38]
¹⁹ See Katavich and TvWorks Ltd, Decision No. 2010-064 at [111]
²⁰ See Case Note 55528 [2003] NZPrivCmr 8
²¹ Television New Zealand Ltd v KW HC Auckland CIV-2007-485-001609, 18 December 2008 at [64]
²² Television New Zealand Ltd v KW HC Auckland CIV-2007-485-001609, 18 December 2008 at [56]
²³ Television New Zealand Ltd v KW HC Auckland CIV-2007-485-001609, 18 December 2008 at [62]
²⁴ See Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942, [2022] 2 NZLR 148 at [33]
²⁵ See clauses 3 and 4(1)
²⁶ Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act 2022
²⁷ Health Industry Privacy Code 2020