BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – report on dispute between Jim Anderton and Mike Moore – item showed an email from the complainant in which her name and email address were visible – allegedly in breach of privacy

The Authority’s Decision
Standard 3 (privacy) and privacy principles 1 and 4 – email address not covered by privacy principle 4 – personal email address could be a private fact for the purposes of privacy principle 1 in some circumstances – in this case disclosure was incidental to the focus of the report – the disclosure was brief and would not be highly offensive to the objective reasonable person – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6.15pm on 30 August 2007, reported on a dispute between Mike Moore, a former Labour Prime Minister and Jim Anderton, a current Member of Parliament. The reporter stated that the dispute had arisen over comments made by Mr Moore about the Prime Minister Helen Clark and her "style of politics". During the course of the item, Mr Anderton was shown sitting in his office looking at various emails he had received regarding the dispute. Viewers were then shown a close-up shot of an email, in which the name and email address of the writer were visible.

Standards

[2]   Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1 and 4 of the Authority’s Privacy Principles are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

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

Privacy Principles

1.  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.

4.  The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

Referral to the Authority

[3]  Jenny Kirk made a formal complaint directly to the Authority under section 8(1)(c) of the Broadcasting Act 1989, alleging that the item had breached Standard 3 (privacy).

[4]  The complainant argued that her privacy had been breached, because her email address was shown in the close-up shot of her email. She also believed that the disclosure would "encourage nutters" and spammers to email her, which could then overload her email message server.

Broadcaster’s Response to the Authority

[5]  TVWorks Ltd, the broadcaster, argued that the complainant’s email address was visible for "less than 2 seconds in a moving shot" and that it was unlikely that viewers would have been able to read and retain the details of the address. On that basis, it maintained that "there was no disclosure and no possible breach" of the privacy standard.

[6]  The broadcaster believed that even if there was disclosure, it could not be regarded as "highly offensive". It argued that there was nothing about an email address that was offensive per se, and that in the circumstances any disclosure of the address was inoffensive.

[7]  The broadcaster did not consider that Ms Kirk’s concerns regarding "encouraging nutters" and the overloading of her email message server were relevant to broadcasting standards, and it declined to uphold the complaint that the broadcast breached Standard 3.

Complainant’s Submission

[8]  Ms Kirk maintained that while the item had only displayed her email address for two seconds, it was long enough for a couple of unknown persons to note down the address and send her some "rather nasty emails". She also noted that some of her friends who had seen the news item had phoned her about it.

Broadcaster’s Final Comment

[9]  TVWorks responded that if the complainant had received telephone calls after the item, they must have been people who already knew how to contact her, as her phone number was not given in the report. It also noted that the complainant’s contact details were in the phone book.

[10]  The broadcaster did not consider the "nasty" emails received by Ms Kirk to be relevant to the issue of privacy.

[11]  TVWorks maintained that the complainant was a public figure and that she had made her views on the dispute public in a variety of ways. The broadcaster believed that Ms Kirk had made a public statement and that she should not have been surprised by a public response.

Complainant’s Final Comment

[12]  Ms Kirk maintained that her email was sent out to "undisclosed recipients", that it was not intended to be a message for the general public to read, and someone on her email list must have leaked it to 3 News.

[13]  The complainant argued that the broadcaster should have taken more care to block out her email address in the item and the fact that it did not led to her privacy being breached.

Authority's Determination

[14]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

[15]  TVWorks considered Ms Kirk’s complaint with reference to privacy principle 4. In the Authority’s view, an email address is not an "address" for the purposes of that principle for the following reasons.

[16]  The inclusion of the word "address" in privacy principle 4 was intended to prevent broadcasts which disclosed a physical address, in order to protect individuals from potential harassment or physical threats at their place of residence. While the Authority recognises that threats and harassment can occur via email, it considers that people have a degree of control over the emails they receive (for example, choosing not to read them), that is not available if the threats or harassment occur at an individual’s doorstep or on the telephone. Accordingly, the Authority considers that privacy principle 4 was not intended to cover the disclosure of an electronic email address. It therefore finds that the principle does not apply on this occasion.

[17]  However, the Authority is of the view that in some circumstances an individual’s personal email address will be a private fact for the purposes of privacy principle 1, which states:

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.

[18]  With respect to whether the email address was disclosed, the Authority is of the view that the broadcaster did disclose Ms Kirk’s email address, albeit for a very brief period of around two seconds. However, the Authority considers that the disclosure of the complainant’s personal email address was not highly offensive on this occasion for the following reasons.

[19]  The disclosure of Ms Kirk’s email address was incidental to the item, which focused on the dispute between Mr Moore and Mr Anderton. The item did not encourage people to contact the complainant to harass or be otherwise abusive towards her. In fact, the disclosure was extremely brief and viewers’ attention was not drawn to the email address.

[20]  Accordingly, the Authority finds that the complainant’s personal email address was not disclosed in a manner which the objective reasonable person would find highly offensive. It declines to uphold the privacy complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 December 2007

Appendix

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

1.            Jenny Kirk’s formal complaint to the Authority – 30 August 2007
2.           TVWorks’ response to the Authority – 12 October 2007
3.           Ms Kirk’s submission – 16 October 2007
4.           TVWorks’ final comment – 17 October 2007
5.           Ms Kirk’s final comment – 17 October 2007