BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
60 Minutes – item about life and death of Antonie Dixon – showed death certificate – contained name of paramedic who responded to medical emergency – allegedly in breach of privacy

Findings
Standard 3 (privacy) – paramedic’s name and involvement in Mr Dixon’s case not private facts – death certificate is a public document – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 60 Minutes, broadcast on TV3 at 7.30pm on 2 March 2009, discussed the life and death of Antonie Dixon, who was convicted of several charges including murder, and later found dead in his cell at an Auckland prison. While the reporter and Mr Dixon’s sister discussed his death, Mr Dixon’s death certificate was shown on screen. This included the full name, occupation and signature of the St John’s paramedic who responded to Mr Dixon’s medical emergency.

Referral to the Authority

[2]   St John Northern (St John) lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989.

[3]   The complainant argued that broadcasting Mr Dixon’s death certificate, which clearly showed the name, rank and signature of the paramedic involved, had breached the Authority’s privacy principles 1 and 4. It said the paramedic had not given consent for his name to be disclosed and, as ambulance officers are bound by patient confidentiality, he and St John objected to the disclosure and found it offensive.

[4]   St John noted that in accordance with the Statement of Care and the Health Information Privacy Code 1994:

...ambulance officers must at all times preserve patient confidentiality, minimise sensitive or private discussion in public environments, only disclose patient details to other medical personnel who are directly responsible for immediate and continuing care of that patient, [and] ensure patient documentation [is] sent to the assigned people and secured appropriately.

[5]   The complainant reiterated that the disclosure without consent on national television was highly offensive, and considered that any objective reasonable person, including past, present and future patients, would be offended knowing their right to patient confidentiality could be breached.

Standards

[6]   St John nominated Standard 3 of the Free-to-Air Television Code of Broadcasting Practice, and principles 1 and 4 of the Authority’s Privacy Principles. These provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles

1.    It is inconsistent with an individual’s privacy to allow the public disclosure of private
       facts, where the disclosure is highly offensive to an objective reasonable person.

4.    The protection of privacy includes the protection against the disclosure by the
       broadcaster, without consent, of the name and/or address and/or telephone number
       of an identifiable individual, in circumstances where the disclosure is highly offensive
       to an objective reasonable person.

Broadcaster’s Response to the Authority

[7]   TVWorks noted that the complainant’s reference to patient confidentiality made it unclear as to whether it believed the paramedic’s or the patient’s privacy had been breached. As the patient was deceased, TVWorks said it “does not consider there is a patient confidentiality issue to answer”, and it therefore confined its decision to the paramedic only.

[8]   The broadcaster stated that in all privacy complaints it must first decide whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. No issue with identification arose here, it said, as it accepted the paramedic’s name was clearly visible on the death certificate as the paramedic in attendance.

[9]   The next issue, TVWorks said, was whether the item disclosed any private facts about the paramedic. It considered that the paramedic’s attendance at Mr Dixon’s medical emergency, as detailed on the death certificate, could not be regarded as a private fact about which an individual would have a reasonable expectation of privacy. The certificate was a court document, it said, and therefore a public document. Further, it was shown on 60 Minutes with the express permission of the judge in Mr Dixon’s case.

[10]   TVWorks maintained that, even if that fact could be regarded as private, the disclosure would not be considered offensive or objectionable to a reasonable person in the position of the paramedic. The death certificate did not reveal any information other than his attendance, and “it is reasonable to consider this a normal requirement of a person in his position”.

[11]   The broadcaster concluded that Standard 3 was not breached.

Authority's Determination

[12]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[13]   Looking at whether Mr Dixon’s privacy was breached, in Decision No. 2000-165 the Authority noted that the word “individual” is defined in the Broadcasting Amendment Act 2000 as having the same meaning as the word “individual” in the Privacy Act 1993. Section 2 of the Privacy Act interprets “individual” as meaning a natural person, other than a deceased person. Not being an individual within the meaning of the Act, a deceased person therefore does not have a legal right to privacy. Accordingly, the Authority agrees with TVWorks that the privacy standard does not apply to Mr Dixon.

[14]   Turning to whether the broadcast breached the paramedic’s privacy, the Authority notes that St John nominated privacy principles 1 and 4 in its complaint. TVWorks concluded that the complainant’s concerns would be better dealt with under privacy principle 1. The Authority agrees, for the following reasons.

[15]   The Authority has stated on a number of occasions that privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public (see, for example, Decision Nos. 2008-089, 2008-017, 2007-108). The Authority is in no doubt that the disclosure in the 60 Minutes item of the paramedic’s name and involvement in Mr Dixon’s case was not intended for that purpose, but rather was incidental to telling Mr Dixon’s story.

[16]   Accordingly, the Authority will address St John’s complaint under privacy principle 1, which states:
It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[17]   When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast. As the paramedic's full name was disclosed during the story, in the shot of Mr Dixon’s death certificate, the Authority concludes that he was identifiable.

[18]   Second, the Authority must determine whether the broadcast disclosed private facts about the paramedic. The Authority notes that death certificates are public documents, and that TVWorks had express consent from the judge involved in Mr Dixon’s case to broadcast his death certificate. The Authority is of the view that the paramedic’s name and his involvement in the case did not amount to "private facts".

[19]   For the record, the Authority considers that, even if the information disclosed in the programme constituted "private facts", the disclosure of the paramedic’s name and the fact he responded to the emergency at the prison would not have been highly offensive to an objective reasonable person.

[20]   Having concluded that the item did not disclose any private facts about the paramedic, the Authority declines to uphold the privacy complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 June 2009

Appendix

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

1.          St John Northern’s direct referral to the Authority – 17 March 2009
2.         TVWorks’ response to the Authority – 24 April 2009