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 complaint that broadcasting an image of Julian Batchelor’s car (sign-written with ‘stop co-governance’ advertising, including Batchelor’s website domain name, and cell phone number) breached Batchelor’s privacy due to the car’s licence plate not being blurred. The Authority found that no private information had been disclosed – noting the car was parked in a publicly visible place, and the Authority has previously found brief footage of licence plates in a broadcast does not amount to an offensive disclosure of private facts, for the purposes of the standard.

Not Upheld: Privacy

The broadcast

[1]  A segment of 1 News on 5 August 2023 discussed the possibility that Julian Batchelor’s pamphlets, distributed as part of his ‘stop co-governance tour’, could be considered election advertising. The broadcast included approximately two seconds of footage of Batchelor’s car – including the car’s licence plate. The car was sign-written with ‘Stop Co-Governance Tour’; Batchelor’s website’s domain name; and Batchelor’s cell phone number.

The complaint

[2]  Philip Stickland made a direct privacy complaint to the Authority, on the basis the broadcast breached the privacy standard of the Code of Broadcasting Standards in New Zealand for featuring footage of Julian Batchelor’s car ‘and the registration plate was not blanked out’. The complainant added ‘this is not only a breach of privacy but is a dangerous action because it alerts the violent, threatening activists to know it.’

[3]  In his submissions, the complainant added the car had subsequently had the sign writing removed due to the threats and vandalism, but ‘as the number plate has been broadcast it can still be recognized!’

The broadcaster’s response

[4]  TVNZ did not uphold the complaint for the following reasons:

• ‘[TVNZ] did not consider that the complaint raised any issues of a potential standards breach.’
• ‘The motor vehicle register was not accessible to the public so people, or private information like their address, cannot be identified through their number plate.’
• ‘There are numerous decisions where the BSA has found that a number plate in itself is not sufficient to identify an individual.’
• ‘The vehicle in question has signwriting including the stop governance website and a phone number on it… this information cannot be considered to be private as it has been purposefully put in the public realm by the owner of the vehicle to advertise the stop co-governance tour of New Zealand, and promote contact from the public.’

The standard

[5]  The privacy standard states broadcasters should maintain standards consistent with the privacy of the individual.¹ The standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.²

Our analysis

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

[7]  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 against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.³

[8]  The complainant has alleged the programme breached Batchelor’s privacy, by broadcasting footage of his car, without blurring the licence plate.

[9]  Generally, there are three criteria for finding a breach of privacy under the standard:

• The individual whose privacy has allegedly been interfered with was identifiable.⁴
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁵
• The disclosure would be considered highly offensive to an objective reasonable person.⁶

[10]  The broadcast did not expressly link Batchelor to the car depicted. However, as Batchelor is the subject of the broadcast, and his mobile number is painted on the car, we accept he is identifiable, and the first limb of the test is satisfied.

[11]  Therefore, the questions for us are whether Batchelor had a reasonable expectation of privacy in the information disclosed, and if so, whether TVNZ’s disclosure of this information would be considered highly offensive to objective reasonable people in their position.

[12]  Factors relevant to the assessment of whether the broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy include, but are not limited to:⁷

• whether the content is in the public domain
• whether the content is intimate, sensitive or traumatic in nature
• whether the individuals could reasonably expect the content would not be disclosed
• the nature of the individual(s) (ie children under the age of 16 can reasonably expect high levels of privacy).

[13]  Generally, a person will not have a reasonable expectation of privacy in a public place as it is accessible to, and/or in view of, the public.⁸ In this case, we note:

• TVNZ confirmed the car was in the carpark at the front of the bar where Batchelor’s event took place, the footage of the vehicle was taken from the pavement (a public place) and the car was visible to any member of the public from the pavement area.
• Nothing was shown (including the licence plate) which would not have also been visible to the public generally.⁹
• While the complainant advised that Batchelor subsequently removed the signage from his car, at the time of the broadcast the car was marked with sign-writing advertising Batchelor’s tour, which had the clear intention of providing the public with Batchelor’s contact information (website domain name and cell phone number).

[14]  We also consider the licence plate itself did not amount to private information for the following reasons:

• A licence plate in and of itself is not personal information,¹⁰ and licence plate numbers are designed to be public.
• Further information, including a car owner’s address, is generally not readily available from a licence plate number, and requests for such information require Waka Kotahi | NZ Transport Agency to balance public interest in releasing the information against the individual owner’s privacy rights.¹¹

[15]  In these circumstances we consider the information disclosed did not amount to private information in respect of which Batchelor had a reasonable expectation of privacy.

[16]  For completeness we note the image of the car was shown for only two seconds, and we consider most viewers would have missed the number on the licence plate. We also note the Authority has previously decided ‘brief footage of [a] car and number plate would not, in our view, be considered highly offensive to an objective reasonable person.’¹²

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

Susie Staley
Chair
7 November 2023    

Appendix

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

1  Philip Stickland’s direct privacy complaint to the Authority – 6 August 2023

2  TVNZ’s response to the complaint – 8 August 2023

3  TVNZ’s further comments – 11 August 2023

4  Stickland’s further comments – 13 September 2023

5  TVNZ’s final comments – 5 October 2023

6  Stickland confirming no further comment – 12 October 2023

¹ Standard 7, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 7, Code of Broadcasting Standards in New Zealand at page 19
³ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁴ Guideline 7.1
⁵ Guideline 7.3
⁶ Guideline 7.8
⁷ Guideline 7.4
⁸ Guideline 7.6
⁹ Sim and Television New Zealand Ltd, Decision No. 2016-060 at [11]
¹⁰ “Is car registration information personal information?” Te Mana Mātāponi Matatapu | Privacy Commissioner (accessed 21 September 2023) <privacy.org.nz>
¹¹ “Who can access Motor Vehicle Register information” Waka Kotahi | NZ Transport Agency (accessed 21 September 2023) <NZTA.govt.nz>
¹² GW and Television New Zealand Ltd, Decision No 2012-012 at [9]