NS and SKY Network Television Ltd - 2015-032
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Leigh Pearson
BroadcasterSKY Network Television Ltd
[This summary does not form part of the decision.]
A story on 60 Minutes featured tragic driveway accidents involving children. Part of the story focused on the death of an 18-month-old boy, and the subsequent struggles of his mother. The mother also discussed her other son, S, and photos and footage were shown of him. The Authority upheld a complaint from S's father that the programmes breached S's privacy. S was identifiable by name and image, he was linked with details of his mother's drug addiction and prostitution which constituted private facts and this disclosure was highly offensive. In the circumstances the broadcaster's primary concern ought to have been the best interests of the child, regardless of any consent obtained. The Authority recognised the value and public interest in the story but this was outweighed by the need to protect the child.
Order: Section 13(1)(d) $1,500 compensation for breach of privacy
 A story on 60 Minutes featured tragic driveway accidents involving children. Part of the story focused on the death of an 18-month-old boy, and the subsequent struggles of his mother. The mother also discussed her other son, S, and photos and footage were shown of him.
 NS, S's father, made a direct complaint to this Authority alleging that the broadcasts breached S's privacy.
 The issue is whether the broadcasts breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The programme was broadcast on Prime TV on 18 May 2015 and repeated on 21 May 2015. There were also some promos broadcast during that period. The members of the Authority have viewed recordings of the relevant broadcasts and have read the correspondence listed in the Appendix.
 New Zealand has very high rates of infant driveway deaths and these are a public concern. Prevention and avoidance involves education and education can involve stories such as those in the situation before us.
 In 2009 in a provincial city a tragedy took place. A young boy aged 18 months was run over in a driveway by the reversing car of a relative. He died in his mother's arms. The mother had another son, S, by a previous relationship.
 The dreadful events of that day had many consequences. The mother who had been a capable person became destabilised. She became addicted to drugs and her life fell to pieces. Her drug addiction took her into prostitution. She lost custody of S to the child's father. Then however, with the care and support of other people, particularly her mother, she brought her life together again. She became drug-free and began an association with a church. Her story of rescue and rehabilitation became a story which generated interest and warmth towards her. As part of her rehabilitation she allowed her story to be told and she told it herself to media outlets such as Woman's Weekly and the New Zealand Herald. In these stories there was mention of S but never in conjunction with mention of his mother's drug-taking and prostitution.
 60 Minutes is a respected and responsibly produced programme which deals with matters of public interest. The 60 Minutes programme broadcast on Prime TV on 18 May featured tragic driveway accidents involving children. One of the events focused upon was the death of the boy in question and the subsequent struggles of the mother with drugs and homelessness and her prostitution. The mother was featured extensively in the programme and she spoke about her other son, S, and photos and footage of him were shown. The visible grief and distress of the mother were harrowing and few viewers would have been left with anything but feelings of sympathy and concern for her.
 Before the programme was first broadcast on 18 May, there were some promos. At these times, S was with his father who was responsible for his day-to-day care. S's father did not know that the broadcast was to take place and he was very concerned when he saw it. He was concerned that S might suffer because of the information revealed about his mother. There was fear that there could be pressure from others at school and other upsetting consequences. The father contacted the broadcaster to express concerns about the broadcast and to make the point that he had not consented to it taking place. He said that the broadcaster agreed to remove photos and video of S and his name from future screenings. There then followed a further promo and a further screening on 21 May 2015. On account of mistakes within SKY, while the image of S was removed from still photographs he still appeared in photographs in promos and his first name and footage of him was still shown in the repeat broadcast. As a consequence S's father lodged a direct privacy complaint about both episodes and the promo.
 We do not intend to dissect the broadcast and the promos but rather we intend to take an overview. Our overview is that in these various broadcasts S was clearly identified either by image or name or both and he was clearly linked with the information about his mother's difficulties.
Did the broadcasts breach S's privacy?
 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.
 Within what was otherwise an excellent programme there was something which we do not think was right. As we have said, S was identified and spoken about and all of this was in the context of a story about a mother who had been in the depths of degradation. While S had been referred to in previous publicity it was never in the context of publicity in which the difficulties into which his mother had fallen had been so graphically illustrated.
 For a breach of S's privacy to be found we need to be satisfied that he was identifiable and as we have said we are so satisfied. We also have to be satisfied that there were private facts about S that were revealed and we are so satisfied. These were his connection with his mother when she was having serious difficulties in life. We also have to be satisfied that the disclosures would be highly offensive to an objective reasonable person and for the reasons we are about to express in more detail we are so satisfied in relation to this as well.
 Our conclusion that this disclosure could properly be seen as highly offensive centres around our views on the protection to which children are entitled. S, now aged nine, is a school boy who has had a difficult life. S was entitled to be kept free from unnecessary additional pressures and problems in life which may have resulted from the programme, including the cruel and unfair pressures that children sometimes face from their peers. It was not necessary or indeed important for him to have been identified in this programme. The programme could have been just as powerful without his identified presence.
 It is a defence to an allegation of breach of privacy that the informed consent of the person whose privacy is said to have been breached was obtained.1 In the case of a child under 16 years of age, parents may give consent. Here SKY said that it considered that it had the informed consent of S's mother. In addition, privacy principle 6 says that children's vulnerability must be a prime concern to broadcasters, even where informed consent has been obtained.
 While usually parents may give consent to what would otherwise be a breach of the privacy of their child, there will be situations where the consent of one or both parents is not enough. There will be situations where a broadcaster will be able to see that notwithstanding the consent of one or both parents, it would be wrong to breach the privacy of a child. This means that in an overall way, when what would be a breach of a child's privacy is being considered, broadcasters must satisfy themselves that the broadcast is in keeping with the child's best interests regardless of consent.
 In the present case, the consent of S's father was not obtained. It was known that S was living with his father and we think this should have raised the question of the father's consent. Moreover, because of these particular circumstances, the question of S's interests should have arisen in the mind of the broadcaster regardless of consent. When broadcasters are about to produce something involving identifiable children the question should always be asked, 'could any harm to this child arise from what we are about to do?' If the answer is 'yes' or 'possibly yes' then ways in which this harm can be avoided should be explored. In contexts like these, children should be seen as individuals in their own right and not as attachments to their parents. We do not consider in this case that the broadcasts were in keeping with the best interests of S for the reasons we have already explained. Here the simple solution would have been to produce the programme in such a way that privacy issues around S did not arise. A cautious and sensitive approach could have been taken, and in our view, ought to have been taken.
 The broadcaster in its response to the complaint has raised the issue of freedom of expression. It has said that this was a programme with high levels of public interest which we accept without reservation. That however does not in our opinion justify the breach of S's privacy especially in circumstances where this could have been easily avoided.
 Rights arising under the principle of freedom of expression are not absolute. They need to give way to other rights and protections. In our society and in our law, when there are clashes between rights and when included amongst the rights in clash are the rights of children, the rights of children almost always prevail. This is so in family law, in criminal law and in our view, under the Bill of Rights. There are good and obvious reasons for this. Children are especially vulnerable. They cannot protect themselves and societies have the most powerful of obligations and reasons to look after their children who are their future.
 Having found that privacy was breached in this instance it is in our view appropriate to suppress the details of all of the individuals involved.For the above reasons the Authority upholds the complaint that the broadcasts by SKY Network Television Ltd of 60 Minutes on 18 May and 21 May 2015, as well as promos for that programme, breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.
 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
 SKY submitted that there were two errors in the Authority's provisional decision. Firstly, it submitted that it was incorrect to say that 'S was clearly identified either by image or name or both' because only his first name was used, and because it considered that 'there was never a full or identifiable image of S' shown, but only framed photographs of him and side shots. Secondly, it submitted that it was incorrect to say that 'it was known that S was living with his father' because the show's producers did not know this; 'they were advised that S lived with his mother and grandmother on weekends, and with his father on weekdays'.
 SKY recognised that 'further care' was needed with vulnerable children, and said that it 'acknowledged the lessons to be taken from the decision'. It apologised for the breach of privacy, particularly for the breaches that occurred after NS had raised his concerns with SKY. It submitted that publication of the decision was a 'sufficient penalty' and said that the decision 'ensured that the team will take even greater care in the future around matters relating to privacy, and particularly the privacy of children'.
 NS did not make any submissions beyond affirming the Authority's findings.
Authority's response to SKY's submissions
 We are not persuaded by the points raised by SKY. We are satisfied that photographs and side shots were sufficient to identify S, particularly in conjunction with his first name and also through his connection to his mother who was the focus of the story. In addition, we do not think it is wrong to say 'S was living with his father' when, as SKY acknowledges, he was living with his father on weekdays.
Authority's decision on orders
 Having found that the S's privacy was breached, we consider an award of compensation is justified. In all the circumstances, and taking into account that the privacy breached was that of a child, that SKY had been put on alert by NS and the Authority's previous compensation awards, we find that an award of $1,500 compensation to the complainant for the breach of his son's privacy is appropriate. We have had regard to the high value of the programme otherwise.
Pursuant to section 13(1)(d) of the Act, the Authority orders SKY Network Television 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 son's 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
10 November 2015
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 NS's direct privacy complaint – 24 May 2015
2 SKY's response to the Authority – 24 June 2015
3 NS's final comment – 3 July 2015
4 SKY's confirmation of no final comment – 17 August 2015
5 NS's response to the Authority's provisional decision – 6 October 2015
6 SKY's submissions on the provisional decision and orders – 7 October 2015
1 See privacy principle 5 of the Authority’s Privacy Principles in Appendix 2 to the Free-to-Air Television Code