BSA Decisions Ngā whakatau a Te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld by majority a complaint that an item on 1News, reporting on an event organised by the Marist Brothers at which the organisation issued a formal public apology for historic abuse, breached the complainant’s privacy. The report featured footage of the complainant speaking at the event about their experience of abuse and the long-term impact it had. While the complainant was aware media would have access to a livestream of the event for reporting, they were under the impression this was to enable media to report on the apology itself. Considering the extremely sensitive information conveyed, the obvious vulnerability of the complainant, and the lack of clear communication to the complainant that media would be able to broadcast footage of them from the event on television, it found the privacy standard had been breached. The defence of informed consent was not available to the broadcaster. A minority of the Authority found the complainant did not have a reasonable expectation of privacy in the circumstances – it was reasonably foreseeable that the information shared could be disclosed more broadly by media or others watching the event.

Upheld by Majority: Privacy

No Order

The broadcast

[1]  An item on 1News on 9 May 2026 on TVNZ 1 reported on an event organised by the Marist Brothers at which the organisation issued a formal public apology for historic abuse. It featured footage of speakers at the closed event, including the apology delivered by the regional head of the Marist Brothers, another Marist Brothers representative who spoke of further steps for redress and corrective and safeguarding measures, and two other speakers. One of the speakers was the complainant, who was shown at the podium. They were introduced:

Reporter:        Several survivors shared their stories, including [complainant’s first name]. 

Complainant: I’m quite anxious being up here.

[2]  Approximately 35 seconds of footage of the complainant’s address was shown, where they spoke about their experience of abuse and the long-term impact it had.

The complaint

[3]  The complainant (referred to as ‘PE’ in this decision) made a direct complaint to the Authority that the broadcast breached the privacy standard of the Code of Broadcasting Standards in New Zealand for the following reasons:

a)  They had not consented to being featured in the broadcast, and would not have if they had been asked. If they had known their speech was to be broadcast, they would never have spoken at the event.

b)  The comments they made about their experiences were extremely private.

c)  They had kept much of this private from their family and others in their life, to protect their family and personal reputation. After the broadcast, they received many calls from people who had seen them on television. This was extremely distressing and re-traumatising.

d)  They alerted the Marist Brothers to the broadcast the same night, who contacted TVNZ. The item was removed from TVNZ+ the next day.

e)  They had believed the event was a ‘safe’ place to say these things, and that it would be only for the survivors and clergy present, relying on the Marists having ‘talked about our protection and privacy’. ‘Before the event, we were told that media would not be present at the apology but a live stream will be available to those that couldn’t attend. Also, the camera for the live feed to just focus on the speakers alone. We were also told that the news media would have access to the live feed as obviously the Marists wanted the spoken apology televised for accountability.’

f)  At the time of the event, they were overwhelmed with the weight of the occasion after years of seeking acknowledgement of the abuse. They were also focused on their speech and what to say. They never considered the possibility their speech would be televised.

g)  The Marist Brothers had admitted they made a mistake by not informing speakers individually that their speeches could be broadcast, and had apologised to the complainant. However, the complainant considered TVNZ should still have asked for their permission before airing the programme, due to the obvious sensitivity of the content.

h)  To have this happen at the final hurdle (the complainant saw the apology event as giving closure), was extremely upsetting.

i)  They considered the fact TVNZ removed the broadcast so swiftly from TVNZ+ suggested TVNZ knew it had made a mistake.

The broadcaster’s response

[4]  TVNZ agreed that the complainant ‘was identified and that private facts were broadcast about [them].’ It acknowledged this had clearly caused harm and distress to the complainant and regretted this had happened. TVNZ sincerely apologised to the complainant for the distress it had caused and said it understood they felt let down by what occurred.

[5]  Nevertheless, TVNZ did not agree the privacy standard was breached. In its view there was not a reasonable expectation of privacy in the facts shared by the speakers (given what the Marist Brothers had told attendees before the event); and there were no restrictions placed on the use of the livestream footage. It provided the following information and comments:

Information provided by Marist Brothers

• Marist Brothers sent information about the apology event and an embargoed media release to media outlets before the event. This information stated:

 Covering email:

This event has a single focus on expressing an apology from the Marist Brothers to survivors of abuse. We understand media interest and we are serving that interest in a balanced way that protects the privacy and confidentiality of those survivors attending. We ask the media to understand that it is not possible to allow media and any form of recording device into the event during the Apology itself. However, we are providing a live stream of the event which will be fully available to the media. This ensures that the Apology itself and what is said during it can be captured by the media, and at the same time allow us to protect the privacy and confidentiality of those attending.

…

We ask that the media refrain from attending the event in person but rather cover the event via the live stream that has been made available. That is the best way to protect the privacy and confidentiality of the survivors. If the media choose to attend in person, we will not be providing access to the venue. If media choose to attend in person we ask them to not film people entering or leaving the event as they may not have consented to being identified as a survivor of abuse.  

Media release ‘Notes for Media’:

…Media, including recording equipment, are not permitted inside the venue during the time immediately prior to, including and after the Apology is delivered, to protect the dignity and privacy of those attending.

A full, unedited livestream of the entire proceedings will be available. The livestream will be accessible from 11.45am, with the ceremony commencing at 12.00pm. A link will be available on the Marist Brothers NZ website, and a recording of the full proceedings will be published shortly after the ceremony.¹

• TVNZ noted the Marist Brothers had also included the following information on its website for people attending the apology event:

Live-Stream, Photography, and Use of Media

We recognise that not everyone will choose or be able to attend in person. Therefore, the event will be recorded and live streamed to watch online. Care will be taken to capture the stage and speakers only.

We ask that no photos or videos are taken inside of the apology space. If photos are taken outside of this space, we ask that you do not capture other attendees and do not share without consent.

…

Media Outlet Attendance

The event will be closed to media to prioritise the privacy and support available to Survivors. We have worked alongside media beforehand to provide access to the live stream, statements [TVNZ’s emphasis], resources and venue photographs prior to the event. Media questions can be directed to [Marist Brothers’ communications email address] following the event.

• ‘The Marist Brothers did not communicate any restrictions on individuals or content in the livestream that could not be used – the 1News team would have complied with any such restrictions.’ They specifically said to media that the measures that had been taken were to “protect the privacy and confidentiality of those attending”. They therefore ‘represented themselves as having properly considered the privacy rights of the people they filmed’.
• ‘It was therefore very concerning for the 1News team to receive an email from [the Marist Brothers] requesting they remove [the complainant] from the reporting on the basis that media use of [their] testimony occurred without [their] knowledge or consent. 1News understood the request was due to an error on the Marist Brothers’ part and took immediate steps to remove [the complainant] from the reporting.’

Informed consent

• ‘It is not unusual for organisations like Commissions of Inquiry, churches or schools to be responsible for managing and obtaining consent from participants of their community to be filmed for a specific event or purpose, especially where the organisation has complete control of the event, such as this one.’
• ‘In circumstances where the filming is done and/or controlled by the organiser (as it was in this case), and the organiser has said it’s taking careful steps regarding who and what will be filmed, the supply of unrestricted footage by the organiser is accepted as including sufficient informed consent for the purposes of the media outlet using the footage.’
• For the Abuse in Care Royal Commission of Inquiry (AICI), a livestream was made available to media, but clear conditions were communicated regarding restrictions on whose footage could and could not be used. The Marist Brothers gave evidence at this inquiry and would be familiar with how witnesses and the livestream for the inquiry were managed, and would have had the opportunity to request to give evidence in an alternative way. In these circumstances, and noting the information provided to the media and survivors by the Marist Brothers prior to the event, it was reasonable for TVNZ to trust that the privacy of the survivors had been properly considered.
• ‘The footage which was broadcast was not collected by 1News; it was collected by the Aotearoa Marist Brothers with the intent to make it available to people who could not attend the apology event. It was also provided to media outlets for their reporting on the apology event by the Aotearoa Marist Brothers. 1News was not permitted at the event and could not collect their own footage.’
• ‘Whilst it wasn’t necessary in the circumstances TVNZ firmly believes that if 1News had asked the Marist Brothers representatives […] to confirm that informed consent had been obtained from the speakers for media’s use of the livestream, the representatives would have affirmed this because they had communicated to the speakers that the apology was being livestreamed to the public and the event was closed to media to attend in person. 1News would have still used the footage in these circumstances.’
• It had contacted the Marist Brothers after the complaint was made to clarify the situation – the Marist Brothers representative responded over the phone that they “weren’t saying TVNZ hadn’t followed a requirement”. They also advised via email, “[the complainant] understood the apology was closed to the media – we understand this as the venue. Unfortunately [the complainant] understood this to be all reporting”.

Reasonable expectation of privacy

• In terms of whether the speakers shown had a reasonable expectation of privacy over the information conveyed, TVNZ said:
  • ‘There were five survivors speaking, their first names [were] listed on the apology event program. All other survivors attending were not filmed.’
  • ‘The speakers knew they were being filmed for a livestream which would be made publicly available as it was being shared by the Marist Brothers and supplied to the media. This was explicitly stated in the event program.’
  • ‘Given the speakers were speaking at a livestreamed event, and media would have access to the livestream and statements, there was not a reasonable expectation of privacy over the facts which were shared.’

Responsible reporting

• TVNZ believed it had responsibly reported on the event and its use of the footage was not exploitative or malicious.
• ‘The 1News team are cognisant of the issues which reporting on this type of story requires. They covered the Abuse in Care – Royal Commission of Inquiry extensively, along with related abuse stories. The team takes their reporting responsibilities seriously. They are very mindful of the sensitivities and ensure compliance with the various requirements (whether legally required or not) to respect the privacy of those involved.’
• Responding to the suggestion it was quick to remove the broadcast from TVNZ+ because it knew it was in the wrong, ‘TVNZ is a responsible broadcaster and ensures that any new information made available to it is appropriately considered. In this instance, when TVNZ received new information, we acted in good faith and ensured immediate steps were taken to address [the complainant’s] concerns.’
• It respectfully disagreed it had broadcast the complainant’s speech for ratings or commercial gain. 1News reports on matters of high public interest in ensuring individuals and institutions are held accountable. ‘Trust is fundamental to what we do – we would not set out to do anything that would breach that trust, particularly where survivors are sharing their experiences.’

The standard

[6]  The purpose of the privacy standard (standard 7) is to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.² The standard states:³

Broadcasters should maintain standards consistent with the privacy of the individual.

Our analysis

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

[8]  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 and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene where the level of harm means that placing a limit on the right to freedom of expression is reasonable and justified.⁴

[9]  In this case, the public interest and value in the 1News story was high. It reported on the Marist Brothers’ formal apology to survivors of historic abuse. One of the recommendations of the AICI was for relevant faith-based institutions to publicly acknowledge and apologise for the abuse inflicted and suffered.⁵ It included footage of the regional head of the Marist Brothers issuing the apology, others speaking at the event, and perspectives from other abuse survivors outside the event (including one who attended and another who had chosen not to attend). The complainant’s comments were a poignant account of the long-lasting impacts such abuse can have. It is in the public interest for the media to report on such matters, to hold institutions accountable, inform the public of steps they have taken to offer redress, and air the perspectives of those who suffered abuse.

[10]  However, the broadcast clearly caused significant harm to the complainant, who did not expect their comments would be broadcast on national prime-time television. They described learning of the broadcast, which aired extremely sensitive and personal disclosures about their abuse and the subsequent impact on their life, as distressing and re-traumatising. This was especially because some of their family members and other people in their life were not aware of this history.  

[11]  We found this case challenging to determine. The broadcaster relied on the Marist Brothers having properly considered and taken appropriate steps to protect the privacy interests of the speakers at the apology event, including making them aware that media may use the footage of them. The circumstances are clearly very unfortunate overall. 

[12]  Our decision as to whether the broadcast breached the privacy standard is not unanimous. A majority of the Authority (Susie Staley exercising her casting vote as Chair, and Aroha Beck) finds the standard was breached, and the minority (John Gillespie and Karyn Fenton-Ellis) finds no breach. 

Majority view (Susie Staley, Aroha Beck)

[13]  The privacy standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest.⁶

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

• The individual whose privacy has allegedly been interfered with was identifiable.⁷
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁸
• The disclosure would be considered highly offensive to an objective reasonable person.⁹

Identification

[15]  While only the complainant’s first name was used in the broadcast (“Several survivors shared their stories, including [complainant]”), they were shown at the podium speaking, and were clearly identifiable.

Information attracting a reasonable expectation of privacy

[16]  The key issue in this case is whether the broadcast disclosed private information over which the complainant had a reasonable expectation of privacy.

[17]  The information the complainant disclosed was extremely sensitive and traumatic – it included the fact they were abused, sensitive recollections about the abuse, and sensitive details about the long-lasting impact on them. There is little doubt matters of this nature would typically be considered ‘private information’ about a person. The broadcaster acknowledged this.

[18]  However, we must also consider whether the information shared attracted a reasonable expectation of privacy in this forum and in the unique context of the Marist Brothers’ event.

[19]  Whether an individual had a reasonable expectation of privacy is a broad inquiry taking into account all the circumstances of the case.¹⁰ The reasonableness requirement of the criteria requires us to measure the individual’s subjective expectations against general societal values, involving consideration of what privacy protection an individual can expect the law to provide.¹¹

[20]  Relevant factors to consider in assessing whether there was a reasonable expectation of privacy include:¹²

• whether the content is in the public domain – a person will not usually have a reasonable expectation of privacy in relation to matters in the public domain, but the public nature of such matters is not definitive¹³
• 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 (for example, children under the age of 16 can reasonably expect high levels of privacy).

[21]  While a person will not usually have a reasonable expectation of privacy in a public place (ie one generally accessible to, and/or in view of, the public) such an expectation may exist where it is objectively obvious from the circumstances that the individual is particularly vulnerable, eg people caught up in emergencies, or those suffering a personal tragedy or bereavement.¹⁴

[22]  Here, the information was disclosed during what was described by the Marist Brothers as a ‘closed event’ designed specifically for survivors of historic abuse – in other words, it was not physically accessible to the media and was unlikely to be attended by the public at large. A link to the livestream of the event was provided to people – primarily survivors and their whānau/support networks – who could not or did not want to attend in person, as well as media. However, this was a targeted group, rather than the event being promoted to, or likely to be accessed by, the public at large.

[23]  The livestream was available on the Marist Brothers’ website (and, as noted in information from the Marists above, a recording was intended to be published afterwards, although that appears not to have happened or to have since been taken down). This could be seen to add a ‘public’ element to the event.

[24]  More importantly, in our view, it was objectively obvious in the circumstances and from the footage, that the complainant was extremely vulnerable. They were sharing their experience as a survivor of abuse. They were visibly emotional, stating upfront, “I’m quite anxious being up here.”

[25]  Noting this obvious vulnerability, we consider any theoretical ability of the wider public to access the livestream or the recording of the event is not definitive.¹⁵ The difference in impact between a limited number of people accessing the livestream, compared with selected footage of the complainant being featured in a primetime news bulletin, is stark.

[26]  The complainant has advised they knew media were being provided with access to the livestream of the event, but the possibility of the media broadcasting their comments was not something they considered in the context of the enormity of the occasion for them personally (seen as giving some closure after decades of attempted recovery and complaints about their treatment), and in focusing on their speech. The complainant’s understanding was that media would only use the livestream to broadcast ‘the apology’ itself. They assumed the Marist Brothers were taking steps to protect their privacy, and that their comments would not be shared more widely, or at least not without their express permission.

[27]  Of particular relevance in this case is how the Marists represented the event to the complainant before it took place, since we are considering whether the complainant’s expectation of privacy was ‘reasonable’ in the circumstances.

[28]  The complainant provided us with an information sheet the Marists sent to them before the event, which detailed how the event would run. From the information before us, it appears the complainant’s understanding of the media’s role in the event came from this document. Relevant statements from the document for our purposes include:

• ‘The event has been shaped with input from Survivors to ensure it is respectful, safe, and supportive. The wellbeing of all Survivors, their whānau and friends comes first.’
• ‘Survivors, whānau and friends, your safety, wellbeing, care and support for this event is a top priority.’
• ‘We recognise that not everyone will choose or be able to attend in person. Therefore, this event will be recorded and live streamed to watch online. Care will be taken to capture the stage and speakers only. Details about accessing the live stream will be shared on Friday 8th May, one day before the event.’
• ‘We ask that no photos or videos are taken inside of the apology space. If photos are taken outside of this space, we ask that you do not capture other attendees and do not share without consent.’
• ‘The event will be closed to media to prioritise the privacy and support available to Survivors. We will work alongside media beforehand to provide access to the live stream, statements, resources and venue photographs prior to the event.’

[29]  In our view, this messaging can reasonably be described as ambiguous. There was an emphasis on communicating the event would be a ‘safe’ space for survivors. It was stated no photos or videos should be taken inside of the apology space, and the event would be ‘closed to media to prioritise the privacy and support available to Survivors.’ While it was briefly advised that the media would be provided with access to the live stream and ‘statements’ (which from other material communicated to media seems to us intended to refer to the Marist Brothers’ speeches and media statement – rather than the survivors’ personal testimonies), it was not explicitly stated that media were allowed to report on any and all content contained in the livestream. Although it was stated that ‘Care will be taken to capture the stage and speakers only,’ there was no explicit explanation of how the event organisers would protect the interests of the survivors speaking as opposed to ‘survivors’ generally or others attending, or how that translated into what the media were allowed to report on.

[30]  In this context, combined with the gravity and sensitivity of the event, we think it was reasonable that the complainant assumed the primary purpose of facilitating the livestream was for survivors to watch the apology online rather than in person, and to allow media to report on the ‘apology’ itself – and that despite having access to the livestream, the media would not use their highly sensitive comments in a national news broadcast without checking with them first. The complainant chose to speak at the event in good faith, for the purpose of achieving closure, and advised (understandably) they were overwhelmed. In these circumstances, we do not think it is appropriate or reasonable for us to say the complainant ‘should have known’ their comments may be picked out of the livestream and aired to the nation.

[31]  For the above reasons, particularly considering the extremely sensitive nature of the information conveyed, and the lack of clear communication about how the livestream would be used, we find the complainant did have a reasonable expectation of privacy over their comments, to the extent they would not be disclosed more widely than the intended audience or broadcast on national television.

Highly offensive disclosure

[32]  Having found there was a reasonable expectation of privacy in the information disclosed, the next question is whether the disclosure of this private information would be considered highly offensive to an objective reasonable person in the complainant’s shoes. Factors relevant to this question include:¹⁶

• 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 how 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.

[33]  Applying these factors to the current case, we note:

a)  The content disclosed was of the highest degree of sensitivity.

b)  Some of the complainant’s family members and other people in their life were not aware of their experiences of abuse and its subsequent impact, which they had purposefully shielded them from, to protect them and their reputation. The broadcast unexpectedly disclosed these details to people in their life, as well as the wider 1News audience. They have understandably described the disclosure as distressing and re-traumatising.

c)  The standard aims to protect people’s dignity, autonomy and mental wellbeing. The broadcast significantly affected and undermined the complainant’s dignity and autonomy in being able to disclose this highly personal information on their own terms.

d)  As above, the complainant was obviously extremely vulnerable, disclosing painful memories and life events.

e)  We do not consider the broadcaster acted in bad faith in broadcasting the complainant’s comments, or that it was intentionally exploitative. We accept the broadcaster was acting on the assumption the complainant had given informed consent to the event organisers, and selected the complainant’s comments to include in the broadcast because they were poignant and powerful, relevant to the subject matter, and added a stark perspective on the long-lasting impacts of abuse.

f)  As discussed further below, the complainant did not consent to the information being broadcast on national television – they understood their comments would be livestreamed and media would be given ‘access’ to the livestream, but not that they would be broadcast more widely.

[34]  While accepting the broadcast was not intentionally exploitative or gratuitous, weighing the factors above we consider disclosure of the private information would be considered highly offensive to an objective reasonable person in the complainant’s shoes. We therefore find a breach of the privacy standard.

Informed consent

[35]  The privacy standard provides two possible defences to a breach of privacy, one of which is informed consent to the disclosure or intrusion. Informed consent is deemed to have been given if the person:¹⁷

• 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, and
• freely agrees to contribute.

[36]  TVNZ considers it had appropriate permissions/informed consent to use the footage in the livestream of the event.

[37]  The privacy standard and previous Authority decisions make it clear that only the individual whose privacy was allegedly infringed (‘the person concerned’) can consent to the disclosure – ‘not their employer or any other intermediary’.¹⁸ Further, ‘if a broadcaster asserts consent as a defence to an allegation that a person’s privacy was breached, it is for the broadcaster to establish that such consent was given’.¹⁹

[38]  The level of informed consent necessary may vary depending on the circumstances of each case.²⁰ Given the high degree of sensitivity of the information disclosed, a high level of informed consent would be necessary in this case for the defence to be available to the broadcaster.

[39]  It is clear the complainant did not give informed consent to the disclosure of their comments on national television. Informed consent requires an understanding of ‘what use is planned for’ the information disclosed.²¹ The complainant did not have an understanding that in speaking at the apology event, their comments could be used by media as part of a broadcast. While they were aware the event would be livestreamed on the Marist Brothers’ website, and ‘access’ to the livestream would be provided to media, they believed this was for the purpose of televising the apology only, and not the survivors who spoke. Further, the Marist Brothers were not able to give consent on the complainant’s behalf.

[40]  We acknowledge TVNZ’s submission that it relied on the Marist Brothers’ advice to media before the event that the livestream was ‘fully available’, in circumstances where media were barred from physically attending. Relevant statements to media by the Marist Brothers include:

• ‘[…] we are providing a live stream of the event which will be fully available to the media. This ensures that the Apology itself and what is said during it can be captured by the media, and at the same time allow us to protect the privacy and confidentiality of those attending’.
• ‘We ask that the media refrain from attending the event in person but rather cover the event via the livestream that has been made available. That is the best way to protect the privacy and confidentiality of the survivors.’
• ‘A full, unedited livestream of the entire proceedings will be available.’

[41]  On one hand, this might support an inference that the Marist Brothers had considered the privacy of people at the event, including survivors who would be speaking and therefore captured in the livestream footage.

[42]  However, the messaging was ambiguous. It was presented as a closed event and emphasised the importance of protecting the privacy and confidentiality of survivors. At the same time, a livestream was to be made ‘fully available’. It could also be interpreted as being provided for the purpose of media reporting on ‘the apology and what is said during it’ rather than anything else (including survivors speaking in response to the apology).

[43]  Most notably, it was silent on the issue of consent in relation to the ‘speakers’ as distinct from ‘survivors’ generally or others attending.

[44]  TVNZ in its submissions sought to compare the AICI, which also made a livestream available to media, but communicated clear conditions and restrictions on whose footage could and could not be used. However, we note from the AICI ‘practice notes’ pointed to by TVNZ, which were issued by the Chair of the Royal Commission of Inquiry, that the signing of a consent form was required for an individual to submit a witness statement for the Inquiry. There was also a process by which those individuals could request anonymity in advance of the livestream being made available. Additionally, the livestream was monitored and a five-minute delay applied to allow any issues to be addressed. These factors, and in particular the signed consent forms required of speakers, show the expectations between speakers, media, and the AICI event organisers were likely to be well understood. Consequently, broadcasters could have a higher degree of confidence and certainty in using footage from the AICI livestream, in reliance on the formal complaint processes in place to manage privacy and publication.

[45]  There is nothing in the Marist Brothers’ communications to suggest the same level of formality or safeguards had been put in place here, or that signed permissions had been sought or obtained from survivors speaking at the event. A distinction can also be drawn between relying on an official Royal Commission of Inquiry as opposed to an organisation less practised in these matters.

[46]  Although it did not obtain the footage itself, TVNZ retained editorial discretion in selecting footage from the livestream for inclusion in the broadcast. Given the extremely sensitive nature of the footage of the complainant and the specific comments that were selected for broadcast, we consider extra care was warranted and TVNZ should have taken additional steps to satisfy itself there was adequate evidence of informed consent having been obtained. This should not have been unduly onerous, given only two of the survivors speaking were selected for inclusion in the broadcast.

[47]  Ultimately, it is the broadcaster that is responsible for upholding the privacy standard and individual privacy interests of people it chooses to broadcast. TVNZ is unable to demonstrate (as is its obligation if relying on this defence) it took appropriate steps to ensure informed consent was obtained from the complainant. We do not think it was sufficient to rely on the Marist Brothers having obtained consent without some clear evidence of that.

[48]  We therefore find the informed consent defence is not available.

Freedom of expression

[49]  We considered whether finding a breach in this case would have a ‘chilling effect’ on freedom of expression, such that it would make it overly difficult for broadcasters to report on sensitive issues via footage supplied by intermediaries.

[50]  We do not consider that by upholding this complaint we would be placing an unreasonable restriction on broadcasters’ freedom of expression. Our finding is consistent with past decisions which make it clear: a reasonable expectation of privacy may exist where an individual is obviously particularly vulnerable (even in a ‘public’ setting); any informed consent needs to be provided by the individual affected; and the onus is on the broadcaster to demonstrate evidence of such consent to rely on the informed consent defence. Applying those principles, broadcasters, when proposing to broadcast particularly sensitive information provided by an intermediary, should satisfy themselves the person disclosing the information has given informed consent for the broadcast (eg by obtaining something in writing from the intermediary or speaking to the person themselves).

[51]  We are not suggesting additional steps and care will necessarily be required in every case where broadcasters use content supplied by an intermediary – the level of rigour required to ensure informed consent is contextualised by the circumstances of each case, including the nature of the information, the individual and the intermediary. In this case, the extreme sensitivity of the information and the nature of the event should, in our view, have been a signal to the broadcaster to be absolutely certain it had consent from those it chose to feature in the programme (noting as well this applied to only two participants).

[52]  For the above reasons, we the majority uphold this complaint under the privacy standard.

Minority view (John Gillespie, Karyn Fenton-Ellis)

[53]  We consider this to be an unfortunate situation. We have sympathy for the complainant, who was not directly advised their comments would be available to media for use in reporting. However, we also have sympathy for the broadcaster’s position and have difficulty finding any fault on their part.

[54]  Having regard to the circumstances in this case, we are unable to agree with the majority’s finding the complainant had a reasonable expectation of privacy over the information they disclosed at the event. This means we do not consider the second criterion for a privacy breach was met, and we would therefore not uphold the privacy complaint.

[55]  The complainant had agreed to speak about their experiences in front of attendees at the apology event. They were aware the event was being livestreamed online, and that the livestream link was being provided to media outlets and available on the Marist Brothers’ website. In our view, it was reasonably foreseeable, or at least possible, that it could be disclosed more broadly via the media or others watching at the event or via the livestream.

[56]  The event information sheet specified: ‘We will work alongside media beforehand to provide access to the livestream, statements, resources and venue photographs prior to the event.’ ‘Access to the livestream’ was not qualified in any way, and the complainant was not told their speech would be off-limits to the media. It was also specified the livestream would ‘capture the stage and speakers only’ (the complainant being one of the speakers). All other attendees were not filmed. While we acknowledge the complainant was overwhelmed and did not turn their mind to the possibility the media would be able to report on their comments, we consider this possibility was sufficiently clear from the document.

[57]  The complainant relied on other messaging in the information sheet that the wellbeing and safety of survivors was a top priority. This was a key message of the document, but we consider there was a distinction made between the levels of privacy afforded to the speakers, as compared with other attendees at the event. As noted, the document specified the livestream would ‘capture the stage and speakers only’ – ie attendees who had not elected to speak would not be captured, but those speaking would be filmed and therefore featured in the livestream. This was reinforced by the statement, ‘We ask that no photos or videos are taken inside of the apology space’. There were five survivors speaking, whose first names were listed on the apology event programme.

[58]  We acknowledge the complainant was obviously vulnerable, emotional and sharing painful and sensitive details about their past. We have no doubt that in electing to speak at the event, the complainant was acting in good faith and for their own reasons, to share their experiences with other survivors, and to bring themselves an element of closure. It is unfortunate that there was a misunderstanding about the media’s ability to report on the content of the livestream, and we acknowledge this misunderstanding resulted in the broadcast of sensitive comments and distress to the complainant.

[59]  Having concluded the complainant did not have a reasonable expectation of privacy in the information disclosed at the event, we do not need to go on to consider whether the disclosure was highly offensive, or whether the broadcaster could rely on the defence of informed consent. We therefore would not find a breach of the privacy standard.

For the above reasons, a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of 1News on 9 May 2026 breached Standard 7 (Privacy) of the Code of Broadcasting Standards in New Zealand. 

[60]  Having upheld the complaint, the Authority may make orders under section 13 of the Broadcasting Act 1989. The Authority is less likely to impose an order when the decision to uphold a complaint is by majority. Taking into account that our decision is not unanimous (with equal votes, and our Chair exercising the casting vote), and the unique circumstances of the complaint, we do not intend to impose an order in this case.

Signed for and on behalf of the Authority

Susie Staley
Chair
11 November 2026    

Appendix

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

1  PE’s direct privacy complaint to the Authority – 28 May 2026

2  PE’s further comments – 29 May 2026

3  PE’s further comments – 30 May 2026

4  PE’s further comments – 2 June 2026

5  TVNZ’s response to the complaint – 26 June 2026

6  PE’s further comments – 19 July 2026

7  TVNZ’s further comments – 20 August 2026

8  PE’s further comments – 3 September 2026

9  PE’s further comments – 4 September 2026

10  PE’s further comments – 11 September 2026

11  TVNZ’s further comments – 18 September 2026

¹ It appears this recording was either not published or has been taken down. 
² Commentary: Privacy, Code of Broadcasting Standards in New Zealand, page 19
³ Standard 7: Privacy, Code of Broadcasting Standards in New Zealand
⁴ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁵ Abuse in Care Royal Commission of Inquiry “Public acknowledgement and apologies” <abuseincare.org.nz>
⁶ Commentary: Privacy, Code of Broadcasting Standards in New Zealand, page 19
⁷ Guideline 7.1: Privacy, Code of Broadcasting Standards in New Zealand
⁸ Guidelines 7.3 and 7.4: Privacy, Code of Broadcasting Standards in New Zealand
⁹ Guideline 7.8: Privacy, Code of Broadcasting Standards in New Zealand
¹⁰ Peters v Attorney-General [2021] NZCA 355 at [109] citing Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36]
¹¹ Hyndman v Walker [2021] NZCA 25 at [72]; also cited in XP and Television New Zealand Ltd, Decision No. 2023-061 at [20]
¹² Guideline 7.4: Privacy, Code of Broadcasting Standards in New Zealand
¹³ Guideline 7.5: Privacy, Code of Broadcasting Standards in New Zealand
¹⁴ Guideline 7.6: Privacy, Code of Broadcasting Standards in New Zealand
¹⁵ For a similar finding, see: Rickard and Television New Zealand Ltd, Decision No. 2016-098. See also Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 (HC) at [31]: ‘It will not always be a complete answer to a claim to a reasonable expectation of privacy to show that the relevant facts or information arose from something occurring in public. In exceptional cases a person might be entitled to maintain a claim to protection from additional publicity, although the relevant circumstances arose in public, and were observed, or were observable, by those in the immediate vicinity.’
¹⁶ Guideline 7.8: Privacy, Code of Broadcasting Standards in New Zealand
¹⁷ Guideline 7.10: Privacy, Code of Broadcasting Standards in New Zealand
¹⁸ See: TD and MediaWorks TV Ltd, Decision No. 2014-048 at [19]; WS and Mediaworks TV Ltd, Decision No. 2014-100 at [22]
¹⁹ FS and Television New Zealand Ltd, Decision No. 2012-035
²⁰ See for example: FS and Television New Zealand Ltd, Decision No. 2012-035; Cave and MediaWorks TV Ltd, Decision No. 2015-026 at [40]
²¹ TVWorks Limited v Stephanie Du Fresne HC WN CIV-2007-485-2060 [13 March 2008] at [18]