BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld a direct privacy complaint about a 1News item regarding a TVNZ on-demand series investigating Destiny Church. The item featured excerpts of an interview from the series, with a former member of the church who participated on the condition her face would remain hidden. The complaint was that the interviewee’s facial features were visible in the broadcast, which in the complainant’s view represented a ‘grave failure’ by the broadcaster to meet its obligations to protect the interviewee, given the seriousness of the circumstances and risk of harm to them. TVNZ accepted there was a breach of the privacy standard on the basis the interviewee’s face was visible to some viewers in certain viewing conditions, which the interviewee had not consented to. The Authority agreed and upheld the complaint as a breach of the interviewee’s privacy. While the Authority did not have evidence of actual harm to the interviewee, it considered in all the circumstances the broadcaster’s error in failing to adequately mask the interviewee as promised was a serious one. The Authority therefore ordered TVNZ to pay $500 costs to the Crown to mark the error and send a signal to broadcasters.  

Upheld: Privacy. 

Order: Section 16(4) of the Broadcasting Act 1989, $500 costs to the Crown
The broadcast 

[1]  The 24 April 2025 broadcast of 1News included an item reporting on the launch of John Campbell’s on-demand series investigating Destiny Church. Campbell said that over two months he had ‘spoken to more than 20 current and former Destiny members as part of an investigation into the church, its public anger and its charity status. All were terrified to share their stories’.

[2]  The 1News item included excerpts from one interview featured in the series, with a victim of domestic abuse and former member of the church (interviewee), who Campbell reported ‘lives in hiding and would only speak with her face blurred’. Various shots showed the interviewee walking into the interview room from below her knees, sitting down on a chair facing the camera/Campbell, and with her back to the camera. The shots of her sitting down facing the camera were backlit, so that she appeared in shadow with the shape of her back, hair and the sides of her ears visible. The interviewee’s voice was audible throughout and not disguised.

[3]  Following the broadcast, other media reported some viewers’ shock and concerns the interviewee’s face was ‘too visible’ during the broadcast and the broadcaster, Television New Zealand Ltd (TVNZ) had removed the story from the 1News bulletin before it was uploaded to TVNZ+ online.¹

The complaint

[4]  Olivia McEvoy made a direct privacy complaint to this Authority alleging the broadcast breached the privacy standard of the Code of Broadcasting Standards in New Zealand for the following reasons:

• ‘During multiple shots of the televised interview, the survivor’s face was not sufficiently obscured, and she was clearly identifiable to any viewer familiar with her.’
• ‘This represents a grave failure in meeting both ethical and legal obligations to protect vulnerable individuals who come forward under strict conditions of anonymity.’
• The broadcast explicitly stated the victim was living in hiding…to then expose her identity – whether through oversight or negligence – is not only a distressing breach of trust, but a potentially life-threatening error’.

The broadcaster’s response

[5]  TVNZ accepted the broadcast breached the interviewee’s privacy:

TVNZ understands that [the interviewee]’s shadowed face was visible to some viewers in specific conditions (brightness and colour settings, and viewing angles) … Given this TVNZ considers that [the interviewee] was identified, and it is clear from the broadcast that private information was given about her.

Given that [the interviewee]’s face was visible to some viewers, and she did not consent to this, TVNZ considers that her privacy was breached.

[6]  TVNZ provided further information regarding the interviewee’s participation and scope of her informed consent, how it believed the error occurred in failing to blur her face in the broadcast, and the actions 1News has taken to address this error and prevent it happening again.

What the interviewee consented to

[7]  TVNZ submitted the interviewee gave consent for private information to be broadcast about her, giving the Authority details of the scope of that information, but she wanted her face to remain hidden. It said the interviewee understood that by telling her story in the broadcast she would be identifiable to Destiny Church members, past and present, and she consented to this; her concern was to prevent identification in the community where she lives now, which TVNZ sought to do by hiding her face.

How the error occurred

[8]  TVNZ explained how the error occurred, resulting in the interviewee’s face being visible to some viewers in the broadcast:

• Originally, 1News shot the footage of the interviewee in shadow and, as an extra precaution, blurred her image.
• When moving the footage between systems, it became corrupted, and the story had to be re-edited. The story was re-cut using the original shadowed footage, but this was not blurred due to a miscommunication.
• The track was viewed multiple times by different members in the team who simply saw the interviewee’s face in shadow – her face was not visible to them. The story played on 1News and was viewed again by multiple TVNZ staff who also saw the interviewee’s face in shadow and not visible.
• At 9.15pm, the same night, after the 6pm broadcast, 1News became aware there was an issue for some viewers: the interviewee’s face was not sufficiently obscured for them.
• The story was removed from the 6pm bulletin before it was uploaded to TVNZ+. The edited bulletin went live online at 10.47pm.
• Subsequent investigation of this issue suggests the shadow over the interviewee’s face may have appeared lighter with specific TV screen brightness and colour settings, or when viewed from a particular angle.

Actions taken in response

[9]  TVNZ explained what had been done in response to the error with the broadcast footage, and the privacy breach. It said 1News apologised for the breach of the privacy standard, ‘has investigated this incident thoroughly’ and has ‘initiated … protocols so that a similar issue does not happen in future’.

[10]  1News’ protocol for filming interviewees who wish to remain anonymous has been amended. The policy is now to film those people from behind or ensure their face/identifying features are completely obscured. 1News ‘will not be filming front-on or side-on in silhouette because it creates room for error in the post-production phase’.

[11]  Further, ‘if editing effects are necessary, this information will be passed on to all members of the team and restriction notes will be placed on the footage so that this cannot be missed. The editing techniques used will include applying a blur or using a block colour shape to cover identifiable features. Following the editing process, all video content is flattened so that editing effects cannot be modified.’

[12]  TVNZ said it ‘recognises that the ultimate concern in regard to this unfortunate breach of the privacy standard is [the interviewee] and her wellbeing’. It said the interviewee was contacted by the reporter the next morning (25 April 2025), who explained what had happened, including the issue with the footage, and checks were made to confirm the interviewee’s established safety precautions and security measures remained in place. The interviewee ‘expressed to our reporter she was comfortable with how she was portrayed, and we are continuing to check in with her.’

The standard

[13]  The privacy standard (Standard 7) states broadcasters should maintain standards consistent with the privacy of the individual.² The purpose of the standard is to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.³

Our analysis

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

[15]  The right to freedom of expression is our starting point in any complaint. Our role is to weigh the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the level of actual or potential harm means that placing a limit on the right to freedom of expression is reasonable and justified.⁴

[16]  There is clearly public interest and value in the on-demand series, which investigates issues such as Destiny Church’s message, operations and funding, its controversial views on particular communities, its legitimacy as a registered charity/charities, and the effectiveness of its anti-violence programme – particularly given recent protests led by members of that group at a library and a Pride Parade.⁵

[17]  The 1News broadcast in turn carried public interest in drawing attention to the series, with particular focus on the last of these topics and a former church member sharing her perspective and experiences – which was also a valuable exercise of the right to freedom of expression.

[18]  While we recognise the value in the 1News broadcast as a whole and the importance of investigating controversial organisations in the public interest, the exposure of the interviewee’s face was not necessary for this overall purpose and clearly a serious mistake, which has been accepted by the broadcaster. The public interest could be served without the broadcast of footage in which a vulnerable interviewee’s identity was insufficiently masked, despite an undertaking her face would remain hidden.

[19]  Overall, we find the potential harm arising from TVNZ’s error justifies our intervention and placing a reasonable limit on the broadcaster’s freedom of expression in this case.

Privacy

[20]  There are typically three criteria for finding a breach of privacy:

• The individual whose privacy has allegedly been interfered with was identifiable.⁶
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁷
• The disclosure would be considered highly offensive to an objective reasonable person.⁸

Identification

[21]  The test for whether a person is identifiable is whether they would be identifiable beyond family and close friends who could reasonably be expected to know about the matters dealt with in the broadcast.⁹

[22]  The broadcaster accepted the interviewee’s face was visible to some viewers, including those who contacted TVNZ with their concerns after seeing the 1News item. TVNZ has explained how this error was likely to have occurred, through corruption of blurred footage of the interviewee being transferred to another system, where the blurring was not re-applied. In other words, the broadcast only obscured the interviewee’s face with dark lighting, using no blurring effect. This meant that to some viewers with different brightness settings, colour calibrations and viewing angles, the interviewee’s facial features were discernible, both front-facing and from the side.

[23]  The Authority has previously found that even if only a small number of people may have recognised the person, the test for identification is met if not all of those people were aware of the private matters disclosed.¹⁰ The broadcaster advised that the interviewee understood current and former members of the church may be able to identify her (including through her voice); her concern was preventing wider identification, for example by members of her community. If people in her community were among those who were able to discern her facial features in the television broadcast, it is possible she would be identified by them. It is also likely that at least some of those people would be unaware of her past.

[24]  We therefore agree with TVNZ’s view the interviewee was identifiable in the broadcast, meeting the first criterion for a privacy breach.

Information attracting a reasonable expectation of privacy 

[25]  Relevant factors in assessing whether there was a reasonable expectation of privacy attaching to the information disclosed – the second criterion – include:¹¹

• whether the content is in the public domain
• whether the content is intimate, sensitive or traumatic in nature
• whether the individual could reasonably expect the content would not be disclosed
• the nature of the individual.

[26]  The information discussed during the interview is of a nature that would typically attract a reasonable expectation of privacy – including the interviewee’s opinions and experiences regarding the church and her former relationship. The broadcaster advised the interviewee consented to discussing these topics, suggesting the interviewee did not have an expectation information would remain private.

[27]  The complaint is about the interviewee’s face being visible, given she participated and shared these private experiences on the condition her face would remain hidden. The broadcaster accepts under these conditions, the interviewee reasonably expected anonymity, beyond those who already knew of her circumstances, and that her image and facial features would remain private; she did not consent to those being disclosed in the broadcast in conjunction with the other private information discussed.

[28]  We agree and accordingly find the second criterion for a breach of privacy was met.

Highly offensive disclosure

[29]  The third criterion is that private information was disclosed about the individual in a way that would be highly offensive to an objective reasonable person in the position of the person affected.¹² Factors relevant to determining whether disclosure of private information is highly offensive include, but are not limited to:¹³

• whether the content is particularly embarrassing or has the potential to impact negatively on reputation
• whether the individual is particularly vulnerable
• the seriousness of the circumstances (eg the means by which the information was gathered, whether the broadcast was exploitative or gratuitous)
• whether the individual has made efforts to protect their privacy or has not consented to the broadcast.

[30]  We are satisfied the disclosure of the interviewee’s face to some viewers, in circumstances where she is living in hiding and participated on the condition her face would be hidden – from her community in particular – would be highly offensive to an objective reasonable person in the interviewee’s shoes. This is despite the broadcaster’s advice the interviewee has twice expressed to the reporter since the broadcast, that she was comfortable with how she was portrayed – as it is an objective test, not a subjective one.¹⁴

[31]  Applying the above factors, the interviewee is clearly particularly vulnerable, and the circumstances are serious. It was clearly reported the interviewee had taken steps to protect her privacy through ‘want[ing] her face to remain hidden’.

[32]  Accordingly, we find the third criterion is also met and therefore find a breach of the interviewee’s privacy.

Defence – informed consent

[33]  The final step is considering whether any defence is available to the broadcaster for the breach of the interviewee’s privacy in relation to the disclosure of her face.

[34]  It is a defence to a privacy complaint that the individual has given informed consent to the disclosure. Informed consent is provided where the person:¹⁵ 

• is aware they are contributing to the broadcast
• understands the true context and purpose of the contribution
• understands the nature of the consent and its duration
• freely agrees to contribute.

[35]  TVNZ accepts the interviewee did not consent to her facial features being visible and therefore the defence of informed consent is not available to it with respect to that disclosure.

Concluding remarks

[36]  While TVNZ may not have foreseen the potential for error in the corruption of the footage or editing techniques applied, nor had any control over the specific brightness, colour calibration and viewing angles people could have used to view the broadcast, it must have foreseen the clear risk of harm to the interviewee if it did not take adequate steps to ensure she was fully masked. We are satisfied that upholding the privacy complaint and requiring the broadcaster to protect the interviewee as promised, places a reasonable and justified limitation on the broadcaster’s right to freedom of expression in this case.

[37]  In addition to the clear potential for harm to the interviewee personally, we noted a broader potential harm described in the complaint: ‘a grave failure in meeting both ethical and legal obligations to protect vulnerable individuals who come forward under strict conditions of anonymity’. In the case of those conditions not being met, resulting in a breach of an individual’s privacy, it is possible other individuals may be less willing to speak out. We do not have evidence of actual harm in this respect; the broadcaster maintained, on the contrary, the broadcast and the interviewee’s bravery encouraged another individual to come forward for a new series. It also noted confidential sources are frequently used and this type of error has never happened before. Nevertheless, the circumstances of this case serve as a reminder vulnerable individuals sharing important stories on the condition their identities will be protected, need to be confident broadcasters will deliver on this promise through robust editorial processes.

[38]  Finally, we were concerned there may be a risk of ongoing harm to the interviewee if the footage, which enabled her to be identified by some people in the 1News broadcast, remained available online in the on-demand series. This was raised in the complaint to us but was not addressed in the broadcaster’s response.

[39]  When asked by the Authority to comment on this issue, TVNZ advised the footage featured in the 1News broadcast was ‘edited separately to the [on-demand] series, so is a different version of the footage’ of the interviewee. Additionally, ‘the footage shown in the [on-demand] series on TVNZ+ was always blurred and shadowed, and so [the interviewee] has not been identified through this footage.’

For the above reasons the Authority upholds the complaint the broadcast by Television New Zealand Ltd of an item on 1News on 24 April 2025 breached Standard 7 (Privacy) of the Code of Broadcasting Standards in New Zealand.

[40]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We issued our provisional decision and invited submissions on orders from the complainant and the broadcaster.

[41]  The complainant did not make submissions on the provisional decision or on orders.

The broadcaster’s submissions on our provisional decision

[42]  TVNZ identified no errors of fact or misunderstandings by the Authority in the decision. However, it commented on two areas of the decision which it suggested warranted further consideration by the Authority.

[43]  TVNZ suggested consideration be given to whether information and certain details potentially identifying the interviewee were required in the decision. While she consented to that information appearing in the series, she has not consented to further disclosure in the Authority’s decision.

[44]  In relation to the Authority’s comments regarding a potential ‘wider harm’ arising from the privacy breach – that it may discourage other vulnerable individuals from speaking up in future – TVNZ noted the privacy standard ‘is not designed to regulate potential harm to theoretical groups of unidentified people’. It also disputed there was any basis for the suggestion others might be discouraged from speaking up in future, noting:

• Confidential sources are commonly used and there is no suggestion such an error has occurred before or that this case reflects how sources could reasonably expect to be treated in the future.
• The steps TVNZ took to address the error, as described in the decision, would reassure potential future contributors regarding their privacy.
• Potential sources were not discouraged by the interviewee’s treatment. Her contribution has in fact inspired another person to come forward for a new series.

[45]  We acknowledge TVNZ’s submissions on both points and have adjusted our decision and concluding remarks accordingly.

The broadcaster’s submissions on orders

[46]  Regarding the level of harm caused to the interviewee, TVNZ said it had contacted her again to check on her welfare and she:

• said ‘no-one in her new community has recognised her’ and, while she was recognised by those who knew her from Destiny Church, she had expected that
• indicated the TVNZ reporter and cameraperson had made her ‘feel safe’.

[47]  Given TVNZ’s ‘voluntary and proactive measures to correct and mitigate the error’ it considered the imposition of any additional penalties risked deterring news organisations from reporting on sensitive matters. It noted the substantial pressures news media organisations are under, meaning the threat of financial sanctions in such circumstances may inhibit coverage of such important issues in the future as ‘the risks may seem too heavily weighted against the broadcaster’.

[48]  TVNZ considered that in these circumstances ‘publication of the decision will provide appropriate advice and clarity for broadcasters on protection of confidential sources and dispel any potential concerns as the factors which led to this breach were properly addressed in a timely manner’.

Authority’s decision on orders

[49]  In determining whether orders are warranted and the type of order to impose, we consider the following factors:

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, section of society or the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (e.g. whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and 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/or orders in similar cases.

[50]  Drawing from our findings above we consider the following factors are relevant in this case:

Aggravating factors

• There was a clear and foreseeable risk of harm to a vulnerable individual described as ‘living in hiding’. The failure to adequately mask the interviewee’s identity could have had very serious consequences.
• Although the failure to blur the interviewee’s face was a mistake, and the broadcaster could not reasonably predict some viewers, under certain viewing conditions, would be able to see her facial features, there were extra precautions the broadcaster could have taken, for example only filming her from behind and not filming any shots of her face/front-on (reflected in 1News’ updated processes in this regard: paragraphs [10]-[11] above).

Mitigating factors

• TVNZ accepted there was a breach of privacy in its initial response to the complaint and has accepted the Authority’s decision.
• TVNZ has provided a detailed explanation of the immediate actions it took to address the error with the footage and of the protocols / policy it has now implemented to ensure such errors are unlikely to be repeated in future. It maintains this type of error has never occurred before.
• The broadcaster promptly removed the relevant content from the broadcast before it was posted online, meaning it was not available to view after the original 1News broadcast, minimising the potential for ongoing harm.
• TVNZ has advised it has twice contacted the interviewee after the broadcast and she remains comfortable with how she was portrayed, has indicated she has not been recognised by anyone in her new community and said TVNZ personnel made her ‘feel safe’.
• It is almost five years since a breach of privacy was last upheld by the Authority against TVNZ.¹⁶

[51]  Taking into account the above factors, as well as relevant past decisions, we consider an award of $500 costs to the Crown is warranted to mark the broadcaster’s error and send a signal to broadcasters. While we are advised by the broadcaster the interviewee remains positive about her participation and we have no evidence of actual harm caused to her, in all the circumstances the error in failing to adequately mask her face as promised was a serious one. As the broadcaster has recognised in its updated protocols, additional precautions could have been taken – including in the selection of camera angles and labelling of the footage – which would have negated any risk of error or miscommunication regarding the need to apply additional blurring to the footage.

Order

Under section 16(4) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $500 within one month of the date of this decision. 

The order for costs is enforceable in the District Court | Te Kōti-ā-Rohe.

Signed for an on behalf of the Authority

Susie Staley

Chair
3 September 2025

Appendix

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

1  McEvoy’s direct privacy complaint – 24 April 2025

2  TVNZ’s response to the complaint – 27 May 2025

3  McEvoy’s confirmation of no further comments – 5 June 2025

4  TVNZ’s response to Authority’s request for comment – 24 June 2025

5  TVNZ’s submissions on Authority’s provisional decision and orders – 24 July 2025

6  McEvoy confirming no submissions on provisional decision or orders – 30 July 2025

¹ “TVNZ viewers claim anonymous Destiny Church whistleblower’s face ‘visible’, TVNZ cuts clip out of ‘abundance of caution’” NZ Herald (online ed, 26 April 2025); “Complaints after claims Destiny Church whistleblower’s face ‘visible’” Newstalk ZB (online ed, 26 April 2025); and “Broadcasting complaints filed after Destiny Church whistleblower’s face shown on 1News” Daily Telegraph New Zealand (online ed, 26 April 2025)
² Standard 7, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 7, Code of Broadcasting Standards in New Zealand, page 19
⁴ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁵ Checkpoint “Destiny Church library protest ‘intimidating and unacceptable’ – police” RNZ (online ed, 17 February 2025); Raphael Franks “Brian Tamaki’s Destiny Church pride protests: Te Atatū witness describes terror inside library” The New Zealand Herald (online ed, 20 February 2025); and Eva Gallot “Destiny Church members disrupt Wellington pride parade with haka” Stuff (online ed, 8 March 2025).
⁶ Guideline 7.1, Privacy, Code of Broadcasting Standards in New Zealand
⁷ Guideline 7.3 and 7.4
⁸ Guideline 7.8
⁹ Guideline 7.1
¹⁰ See JN and Mediaworks Radio Ltd, Decision No. 2017-053 at [19]
¹¹ Guideline 7.4
¹² Guideline 7.3
¹³ Guideline 7.8
¹⁴ For a similar finding see Wicks and Television New Zealand Ltd, Decision No. 2022-052 at [23].
¹⁵ Guideline 7.10
¹⁶ HV and Television New Zealand Ltd, Decision No. 2020-057 (16 November 2020)