BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a direct privacy complaint regarding a 1 News item reporting on Kamahl Santamaria’s resignation from Breakfast, where it was stated that ‘allegations of inappropriate behaviour have surfaced’ (reported earlier that day by Stuff). The Authority found Santamaria did not have a reasonable expectation of privacy in relation to the information reported, and the item carried high public interest.

Not Upheld: Privacy

The broadcast

[1]  An item on 1 News, broadcast on 29 May 2022 on TVNZ 1, reported the following about the recent resignation of Breakfast host, Kamahl Santamaria:

Newsreader:            TVNZ bosses remained tight lipped over what led to the resignation of Breakfast presenter Kamahl Santamaria just over 30 days into the job. It comes as allegations of inappropriate behaviour have surfaced.

Reporter:                 It was yesterday when we sent a long list of questions to the Chief Executive, to the Head of News and Current Affairs, and to Television New Zealand Corporate Communications. We were told yesterday there was nothing further to add to the statement that went out to staff and to external media. Today, though, a report in Stuff saying that the resignation, it understands, comes after one female worker complained about inappropriate behaviour.

Newsreader:            This is an allegation from within our newsroom. Can you explain how the team has been treating it?

Reporter:                 The newsroom is really different at Television New Zealand from the wider building Television New Zealand. We are operating at arm's length here. Today the newsroom has used a lawyer to be guided on our reporting of this. That is a lawyer outside of Television New Zealand, where normally we would use our own in‑house lawyers. Yesterday, when I texted the Head of News and Current Affairs asking if there was any comment from him, the reply was that he was treating this request as he would for any other outside news question, and referring it to the communications team. So we are operating at arm's length here. I've also texted today the number we have listed for Kamahl Santamaria. That message has been opened but not responded to.

The complaint

[2]  Beverley Short complained directly to the Authority that the broadcast of Kamahl Santamaria’s name, his image, and unsubstantiated allegations of inappropriate behaviour by him, amounted to ‘trial by media’ and breached Santamaria’s privacy. In summary, she said:

• The broadcast of the allegations with no accompanying information provided to verify them, meant the audience was not left with any way to know if the information was true, and therefore left to make its own assumptions. Regardless of whether the allegations end up being true or not, the broadcast of these allegations in the media will have a catastrophic impact on Santamaria’s, and his family’s and friends’, lives. ‘In any civilised society, a person deserves a fair trial before they are publicly declared guilty’.
• Freedom of expression should not protect public interest over privacy in a very personal case where internal investigations were still underway, facts still to be established, and all parties yet to make their case.
• Even though the allegations had already been published by Stuff prior to this broadcast, TVNZ’s choice to rebroadcast them prior to any confirmation of their veracity was premature, and still breached Santamaria’s privacy.

The broadcaster’s response

[3]  TVNZ did not uphold the complaint, saying, in essence:

• The details of Santamaria’s resignation and the allegations of inappropriate behaviour was information which was already in the public domain (in a Stuff article earlier the same day),¹ prior to the 1 News broadcast.
• Santamaria’s role on Breakfast was a highly public one, and his resignation after only 30 days raised questions. It is recognised that ‘public figures are more often open to such questioning, as they hold positions in society where robust scrutiny of their roles and behaviour is encouraged and expected’.²
• The expectation of privacy was balanced by the legitimate public interest in the story.
• Santamaria's resignation, after such a short time, and without any obvious reason, was newsworthy and carried public interest – particularly so where there were suggestions of inappropriate behaviour at the State-owned broadcaster. 1 News has reported on similar allegations in other companies and institutions such as churches.
• As a news agency, 1 News has freedom of expression rights which are enshrined in the Bill of Rights Act 1990. It must be able to report on any issue as other news media are able to, which it did in this case.

The standard

[4]  The privacy standard³ states broadcasters should maintain standards consistent with the privacy of the individual. It respects, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public, but also allows broadcasters to gather, record and broadcast material where this is in the public interest.

Our analysis

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

[6]  We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas and information and the audience’s right to receive that information.

[7]  The high importance we place on our ability to exercise the right to freedom of expression is reflected in our constitutional law by the New Zealand Bill of Rights Act 1990. The cost of having this freedom means that, sometimes, the exercise of freedom of expression will result in harm being felt by some. Ultimately, we must strike the appropriate balance between the public interest and the right to freedom of expression on one hand, and on the other, the harm that might be caused to individuals through a breach of broadcasting standards. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.⁴

[8]  This 1 News broadcast carried a high degree of public interest. In an open and democratic society, broadcasts which scrutinise or which are critical of the actions of public figures or those in privileged positions, meaning they are capable of exercising influence, are a vital component of freedom of expression. The broadcast media has a significant role to play in keeping the public informed, and holding other entities and individuals, as well as themselves, to account.

[9]  Overall, we have found the alleged harm to Santamaria’s privacy interests did not outweigh the public interest in the broadcast and does not justify restricting freedom of expression in this case. We expand our reasons below.

Privacy

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

• The individual whose privacy has allegedly been interfered with was identifiable.⁵
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁶
• The disclosure would be considered highly offensive to an objective reasonable person.⁷

[11]  Santamaria was named and shown in the broadcast, so he was clearly identifiable, satisfying the first criterion.

[12]  The key issue in this case, in our view, is whether the broadcast disclosed any information over which Santamaria had a reasonable expectation of privacy.⁸ Given his role as a broadcast presenter, his name and image were not private (which was alleged in the complaint). Regarding his resignation from Breakfast and reporting that ‘allegations of inappropriate behaviour have surfaced’, we also do not consider this was information attracting a reasonable expectation of privacy. The factors supporting this view are:

• Individuals who are public figures, hold public positions of power or influence, or seek publicity, generally have lower expectations of privacy in relation to matters pertaining to their public roles.⁹ We consider Santamaria fell within this category as a news reporter and anchor for Al Jazeera and TVNZ. The allegations were that Santamaria acted inappropriately while in the public role of Breakfast presenter.
• As noted by the broadcaster, the fact Santamaria was in that role for only one month naturally raised questions and was newsworthy.
• Allegations of, or participation in, inappropriate conduct or illegal activities has previously been considered by the Authority to constitute private information.¹⁰ However, in general, a person will not usually have a reasonable expectation of privacy in relation to matters of public record, including, for example, matters that have recently attracted media coverage.¹¹ As 1 News reported in the broadcast, Stuff published an article earlier the same day about the allegations, which stated:
  
  The state-owned broadcaster has described Santamaria’s situation, in which he was off air for more than a week before quitting, as being down to a “family emergency”. However, Stuff understands that is not the full story – and that at least one female in the newsroom had complained about inappropriate behaviour from Santamaria.
• Therefore, the allegation that Santamaria had behaved inappropriately – while private in nature – was information that was already in the public domain and accessible to members of the public, at the time of the 1 News broadcast.

[13]  In these circumstances, we do not consider any of the information reported in the broadcast attracted a reasonable expectation of privacy. The second criterion for a breach of privacy is therefore not met, and we do not uphold the complaint on that basis.

[14]  We note in any event, the disclosure of information carrying legitimate public interest is a defence to a privacy complaint.¹² The level of public interest must be proportionate to the seriousness of the breach of privacy in order for the defence to apply.

[15]  In this case, the resignation and subsequent allegations of inappropriate behaviour by a high-profile presenter, so soon after starting a new role – and later, concerns raised surrounding TVNZ’s hiring protocols – were legitimate to report on in the public interest. 1 News should not be penalised for having investigated and reported on these concerns early. The public interest in this broadcast is reinforced by later reporting by TVNZ and other media which brought to light further allegations of inappropriate behaviour by Santamaria in his previous workplace, and prompted an independent inquiry into TVNZ’s recruitment process.¹³ The level of public interest therefore outweighed Santamaria’s right to privacy in the circumstances.

[16]  Lastly, we note the complainant and TVNZ’s submissions covered a number of wider issues outside of what has been discussed above (including possible employment investigations, the placement and viewership of the item, and the extent of Santamaria’s opportunity to comment – it is noted that Santamaria was provided an opportunity to comment prior to the broadcast and chose not to do so). However, as the wider issues did not relate specifically to the information disclosed in the broadcast, or were not relevant to the privacy standard, they were outside the scope of the Authority’s jurisdiction, and were therefore not included in this decision.

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

Susie Staley
Chair
5 October 2022 

Appendix

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

1  Beverley Short’s direct privacy complaint – 30 May 2022

2  Short’s further comments – 21 June 2022

3  TVNZ’s response to the complaint – 7 July 2022

4  Short’s comments on TVNZ’s response – 20 July 2022

5  TVNZ’s final comments – 10 August 2022

6  Short’s final comments – 17 August 2022

¹ Simon Plumb “TVNZ host Kamahl Santamaria quit after complaint by female colleague” Stuff (online ed, 29 May 2022)
² Quote taken from BSA guidance on fairness complaints involving public figures: Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <www.bsa.govt.nz>
³ Standard 10, Free-To-Air Television Code of Broadcasting Practice
⁴ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁵ Guideline 10a
⁶ Guideline 10c
⁷ Guideline 10b
⁸ Guideline 10c
⁹ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62 at 4.1
¹⁰Hastings District Council and TVWorks Ltd, Decision No. 2009-088, at [59]; Walter and Television New Zealand Ltd, Decision No. 2009-073, at [26]; and United Fire Brigades’ Association and Radio New Zealand Ltd, Decision No. 2021-038
¹¹ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62 at 3.1
¹² Guideline 10f
¹³ Duncan Grieve “TVNZ’s head of news resigns after review of Kamahl Santamaria hiring released” The Spinoff (online ed, 27 July 2022); “The Kamahl Santamaria scandal at TVNZ, why it matters and what next” Stuff (online ed, 28 July 2022)