Thomson and Television New Zealand Ltd - 2015-060 (1 December 2015)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Leigh Pearson
- Mark Thomson
BroadcasterTelevision New Zealand Ltd
Summary[This summary does not form part of the decision.]
An item on Sunday discussed AC/DC drummer Phil Rudd’s alleged unsafe sex practices with escorts. The Authority did not uphold a complaint that the item breached Mr Rudd’s privacy. The information disclosed during the item was already in the public domain and widely broadcast, so did not constitute private facts. The item also did not disclose any personal details about Mr Rudd for the purposes of encouraging harassment.
Not Upheld: Privacy
 An item on Sunday discussed former AC/DC drummer Phil Rudd and his alleged behaviour with escorts, in particular his unsafe sex practices. The item featured an interview with an anonymous former escort who had been hired by Mr Rudd. The item also showed images of the outside of Mr Rudd’s house and boat.
 Mark Thomson complained that the item breached Mr Rudd’s privacy as it gave details of his personal life and sexual preferences, which could encourage harassment.
 The issue is whether the broadcast breached the privacy standard as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on TV ONE on 16 August 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the broadcast breach Mr Rudd’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.
 When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. Mr Rudd was the focus of the item and was clearly identified by both his image and his name.
 Privacy principle 1 of the Authority’s privacy principles has the widest application to alleged breaches of privacy. This provides that 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.
 Mr Thomson argued that the item breached Mr Rudd’s privacy because it gave details about his personal life and sexual preferences, while questioning the acceptability of those preferences. He considered that Mr Rudd’s activities involved two consenting adults and no crimes were committed.
 TVNZ maintained that the item disclosed no private facts about Mr Rudd. It said the facts discussed – including the allegations about unsafe practices with escorts – were all in the public realm and widely known and broadcast. It pointed us to numerous articles published nationally and internationally in support of this. TVNZ also noted it had put the escort’s allegations to Mr Rudd for a response, which he declined.
 A ‘private fact’, for the purposes of privacy principle 1, is information which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.1 Usually, a person’s sexual preferences and sexual activity would amount to private facts; this information is particularly intimate and personal and engenders a high expectation of privacy. However, in light of the information provided to us by the broadcaster, the question for the Authority is whether the Sunday item disclosed any information about Mr Rudd which was not in the public domain, and which could attract a reasonable expectation of privacy.
 We are satisfied that all of the information disclosed during the item was already in the public domain and widely disseminated and therefore it was not information in which Mr Rudd had a reasonable expectation of privacy. Regarding the use of escorts and alleged unsafe sex practices, which was the focus of the item, the story told by the interviewee about her experiences with Mr Rudd was materially the same as stories published previously in national and international media. For example, a Woman’s Day article featured the story of another escort who claimed that Mr Rudd had an ‘insatiable appetite for drugs and unsafe sex’ and that escorts’ services would be terminated if they did not agree to unprotected sex.2 Other media coverage states, ‘AC/DC drummer Phil Rudd likes group sex, asks prostitutes to call him “babe”, doesn’t like wearing condoms,’3 and repeatedly refers to Mr Rudd’s preference for unprotected sex.4 These stories, and others of a similar nature, are readily available.
 Furthermore, while Mr Rudd declined to comment on the particular allegations raised in the item, he acknowledged in his communication with Sunday that it was ‘no secret [he] uses escorts’. Mr Rudd is open about his use of escorts and publicity about this behaviour forms part of his ‘rock star’ persona. As a public figure who is open about aspects of his sex life, Mr Rudd could not be said to have an expectation this information would remain private.
 For these reasons, we decline to uphold the complaint that the item breached Mr Rudd’s privacy.
 In his complaint, Mr Thomson also raised privacy principle 4. Privacy principle 4 concerns the disclosure of an individual’s name, phone number or address for the purposes of encouraging harassment.5 For the reasons we have outlined, we do not consider that the item disclosed any such details about Mr Rudd. While the images of the outside of his residence and his boat were shown, it was not possible to discern his street address or the name of the boat, and the inclusion of these images was clearly not to encourage harassment of him.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
1 December 2015
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Mark Thomson’s direct privacy complaint – 17 August 2015
2 TVNZ’s response to the complaint – 11 September 2015
1 Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)
2 ‘Highway to Hell: My Days with AC/DC Rocker Phil Rudd’ (Woman’s Day, July 2015)
3 ‘Revealed: Prostitutes’ sordid claims of group sex sessions on board AC/DC drummer Phil Rudd’s boat… and how he hates people playing with his pet dog’ (dailymail.co.uk, 8 November 2014: http://www.dailymail.co.uk/news/article-2826320/Prostitutes-sordid-claims-group-sex-sessions-board-AC-DC-drummer-Phil-Rudd-s-boat-hates-people-playing-pet-dog.html)
4 ‘Sex worker speaks out on Phil Rudd’, nzherald.co.nz, 20 July 2015: http://www.nzherald.co.nz/entertainment/news/article.cfm?c_id=1501119&objectid=11483952
5 See, for example, Spring and The Radio Network Ltd, Decision No. 2007-108