BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Tongan Health Society and Television New Zealand Ltd - 2019-054 (2 December 2019)

Members
  • Judge Bill Hastings (Chair)
  • Paula Rose
  • Susie Staley
Dated
Complainant
  • Tongan Health Society
Number
2019-054
Programme
1 News
Channel/Station
TVNZ 1

Summary

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

The Authority has not upheld a complaint about a 1 News segment that discussed allegations and criticisms about the operations of the Tongan Health Society. The segment featured interviews with former employees and Board members who criticised the management of the Society, its CEO Dr Glenn Doherty, and called for an independent review of the Society. The Authority found that the requirements of the fairness and balance standards were met as TVNZ had taken reasonable steps to seek, and then adequately presented, the Society’s point of view on the issues raised in the programme. The Authority found the disclosure of the CEO’s request for a bonus and extracts from correspondence between the CEO and Board relating to this amounted to a breach of privacy, but determined that the defence of public interest applied on this occasion.

Not Upheld: Balance Fairness, Accuracy, Privacy


Introduction

[1]  A 1 News segment discussed allegations and criticisms surrounding the operations of the Tongan Health Society (the Society). Introducing the item, the presenter stated: ‘Former employees and Board Members of a charity are calling for a Government investigation into the tax-payer funded operations of Auckland’s Tongan Health Society. The Society which runs three medical clinics, a pre-school and social services faces financial problems, legal issues and has a controversial CEO.’

[2]   The item featured interviews with former Society staff and board members, who criticised the management of the Society, its CEO Dr Glenn Doherty, and called for an independent review of the Society. During the segment the presenter said ‘documents show the Tongan Health Society is embattled’. The segment also featured the presenter reading out statements the Society had provided to TVNZ regarding the issues broadcast in the item.

[3]  The item was broadcast during 1 News on 19 April 2019 on TVNZ 1. In considering this complaint, we have viewed a recording of the broadcast complained about and we have read the correspondence listed in the Appendix.

The complaint

[4]   The Society complained that the broadcast breached the balance, fairness, accuracy and privacy standards of the Free-to-Air Television Code of Broadcasting Practice, for the reasons set out below.

Balance

[5]  TVNZ broadcast ‘several quite different but extremely serious allegations about the Society’ including allegations of:

(a)  financial wrongdoing

(b)  poor corporate governance

(c)   bullying

(d)  failing to act in the interests of the Tongan community, and

(e)  improperly firing those who protested.

[6]  The range and severity of these allegations called for ‘particular care and responsibility on TVNZ’s part to ensure balance, accuracy and fairness.’

[7]  An on-camera interview was required in the interests of balance, considering the story was based on five on-camera interviews. TVNZ failed to facilitate such an interview.

[8]  The Society acknowledged that TVNZ did attempt to summarise its written response. This achieved some measure of fairness and balance. The Society accepted that the broadcasting code does not require that TVNZ broadcast every aspect of its response. However, the Society’s case is that the attempts at achieving balance were ‘manifestly inadequate.’

[9]  When transcribed, 19 paragraphs of the story were critical of the Society. Just six contain points in its favour. The Society submitted that, while stories need not be mathematically balanced, the programme was ‘very one-sided’.

[10]  The criticisms are presented without response, one after another at the top of the story, the response is provided about three-quarters of the way through the story.

Fairness

[11]  TVNZ made eight serious allegations against the Society in one four minute news piece, which were ‘impossible to deal with fairly:’

  • Scandalous financial impropriety requiring an independent audit
  • Poor corporate governance requiring a restructure
  • Failure to act in the best interests of the Tongan community
  • Firing of staff and board members who challenge the CEO
  • Unlawful bullying by the CEO
  • CEO/Society behaviour justifying many legal complaints
  • Failure to respect and value staff
  • A demand by the CEO for a bonus in circumstances where that was not appropriate (including details of statements made by him in support of this request).

[12]  TVNZ broadcast interviews with ‘five former staff and board members who had axes to grind, and aired their serious but unspecific allegations, but refused to identify them to the Society before broadcast.’ This was despite the fact that four of them were happy for their identities to be revealed on camera.  Had the Society been made aware of their identities before broadcast it could have provided further contextual information including as to the source’s credibility and/or motivation.

[13]  TVNZ unfairly put the Society in an untenable position: having to breach its own privacy and confidentiality obligations (eg to staff interviewed for the programme) in order to defend itself.

[14]  TVNZ refused to accommodate the Society’s request for an on-camera interview. This would have given the Society a better chance to understand and engage with the criticisms levelled against it.

[15]  TVNZ broadcast some serious criticisms that were never put to the Society and omitted significant parts of the Society’s responses. Viewers were not given the information they needed to understand and make up their own minds about the issues.

[16]  TVNZ omitted other important balancing material provided to it (eg articles in magazines demonstrating the Society is acting in the best interests of Tongans).

[17]  The dignity and reputation of the Society and its CEO have been ‘seriously wounded.’ The Society's ability to obtain funding and enrol patients has been materially harmed.

[18]  TVNZ knew that the Board members and the Board’s accountant were not fulltime, had other jobs and needed some flexibility to make time to prepare for and attend an interview to present their side.

[19]  TVNZ had fixed on the idea of broadcasting the story on Friday 16 April 2019, did not tell the Society that, and refused to be flexible.

[20]  ‘The Society was clearly doing its utmost to respond to the allegations.’ It was holding an emergency Board meeting, talking to its accountant and going through its records. It was trying to arrange for attendance at interviews.

[21]  It is impossible for viewers to understand the story’s vague criticisms. The story gives almost no information about why they are being made or what they mean.

Accuracy

[22]  The Society considers that ‘parts of the story breached the accuracy standard, particularly in relation to the claimed financial impropriety.’ Had TVNZ interviewed the Society’s accountant the misleading nature of this claim would have been revealed.

[23]  However, the Society believes the accuracy concerns may be better dealt with under the balance and fairness standards.

Privacy

[24]  The Society submitted that the broadcast disclosed private information about its CEO’s employment terms and conditions and his correspondence with the board on these issues and that these disclosures were highly offensive.

[25]  The Society submitted that there was no legitimate public interest in the private information being disclosed.

The broadcaster’s response

[26]  TVNZ submitted the broadcast did not breach the broadcasting standards raised for the reasons set out below.

Balance

[27]  The broadcast discussed a controversial issue of public importance.

[28]  TVNZ were not required to identify their sources in the interests of balance.

[29]  1 News ensured that every allegation raised in the story had a response from the Society.

Fairness

[30]  The issues raised in the broadcast were raised in the list of questions to the CEO.

[31]  The Society was given sufficient time to respond to the issues raised. The offer of an on-camera interview was made on the first contact with the Society, in a phone-call with the CEO, and was repeated numerous times over the following days in a series of emails.

[32]  1 News extended deadlines for responses to be provided in good faith from 5pm on 17 April 2019 to 12pm on 18 April 2019. The Society responded at 1pm. Despite not getting an answer from the Society for two days, TVNZ also extended the deadline for an on-camera interview from 12pm on 17 April to 1pm to 2.30pm on 17 April but received no firm commitment from the Society.

[33]  The individuals featured in the broadcast were entitled to express their honest opinions about Dr Doherty as CEO and the Society. These opinions were also expressed to TVNZ ‘by more than a dozen people.’ While some of this commentary included personal opinion, it did not stray into the personally abusive. The Society was able to put their position across in the item. The CEO chose not to respond as is his right.

[34]  The CEO was advised of the complaints via phone conversation and email from the reporter and chose not to speak to 1 News.

[35]  Individuals’ names were not given to the CEO as is usual and accepted practice.

[36]  1 News gave the Society a fair right of reply in the item, broadcasting the following:

‘Dr Glenn Doherty didn’t want to speak to 1 News but in a written statement the board of which he is a member said they have every confidence in him. They said the CEO has been the target of ongoing attacks from some members of the Tongan community and employees. They blamed the sometimes unpopular changes he introduced to lift the performance of the society and discrimination against him because he is Maori and not Tongan. The Society says it has investigated one recent complaint and found no grounds for bullying.’

[37]  BSA decisions have previously explained that criticism of political and public figures is permitted and protected under the Bill of Rights Act.

[38]  Both the Society and the CEO were provided with opportunity to comment on the issues, which they were ‘fulsomely advised of’ before the broadcast. The Society and the CEO were asked to engage in an on-camera interview, which they ultimately chose not to do.

Accuracy

[39]  1 News advised they have documents showing a pattern of financial problems over time which do not just stem from the opening of the Kelston clinic. TVNZ provided extracts which they say suggest the statement that the Society was in ‘financial trouble’ was accurate.

[40]  TVNZ included the Society’s perspective on the financial state in the broadcast.

Privacy

[41]  Given that the Society is a publicly funded organisation, with alleged financial issues, it was in the public interest for the information about the CEO’s remuneration to be disclosed and the CEO’s attitude to be examined. It was pertinent and provided context to the allegations which have been made about his role in the Society, as CEO and a Board Member.

[42]  If the information regarding the CEO is considered to be private information, the publication of it was in the public interest given the Society is a publicly funded body designed and funded to serve the Tongan community.

The relevant standards

[43]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[44]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.1

[45]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before a broadcast. What is ‘fair and reasonable’ will depend on the circumstances.2

[46]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.3

[47]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual.

Preliminary issue – request for additional material

[48]  In its submissions, the Society asked the Authority to exercise its powers under section 12 of the Broadcasting Act 19894 to require TVNZ to provide all material leaked to TVNZ (with any source identification redacted if necessary) to show TVNZ left out important balancing information that was in its possession.

[49]  The Society argued that the Authority has used its powers before to make such orders in similar situations and that the Court of Appeal has said that it is impossible to gauge fairness and balance in situations like this without knowing what was edited out.5

[50]  The Society also asked that TVNZ and/or the BSA facilitate a privacy/confidentiality waiver from TVNZ’s sources, so that it can properly explain why TVNZ’s use of their allegations is unfair and unbalanced.

[51]  The Society submitted that only after it has completed this exercise would the Authority be in a position to determine whether standards had been breached.

[52]  TVNZ opposed the exercise of the s12 power and submitted it has, and will continue to, provide as much detail as possible to the Authority for the determination of the complaint, but that protection of anonymity is important. We understand this submission to mean that anonymity is important for enabling individuals to have a voice on issues of concern to them, without fear of reprisal.

Our determination – section 12 power

[53]  In deciding whether to exercise our s12 power, the question is whether we consider we have sufficient information in order to make a proper assessment of whether broadcasting standards have been breached.6

[54]  After considering the submissions we have reached the view that we have sufficient information before us to enable us to assess whether broadcasting standards were breached by this programme. As set out in the substantive section of this decision, considering the high level way in which the various allegations were raised (and responded to) in the broadcast and the information already provided from parties to the Authority, we do not consider it necessary to use our powers under s12 on this occasion.

[55]  In reference to the request set out in paragraph 50 it is not our role to assist in obtaining waivers from TVNZ’s sources.

[56]  Accordingly, we have proceeded to determine the complaint on the basis of the information the parties provided to us in their submissions.

Our analysis

Freedom of expression and public interest

[57]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. This includes the value and public interest in the matters covered in the programme. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[58]  The potential harm on this occasion is to the reputation of the Society and the CEO as a result of alleged unbalanced and misleading reporting, unfair treatment by TVNZ and the disclosure of private information about the CEO.  Additionally, in the case of news reporting, in the absence of accurate and balanced reporting, the audience may be misled as to the factual position and therefore unable to make an assessment of the matters reported.

[59]  It is an important role of journalists and the media in general to scrutinise and hold public organisations and their leaders to account for their actions. Critiquing and challenging these institutions promotes free and frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society. However, while the value of this type of expression is high, and the threshold for us to intervene when public entities are involved is also high, we may intervene where there is potential for harm that is disproportionate to the public interest. This may occur when there is unfair, unbalanced or inaccurate criticism at a level which may mislead the public and unduly damage the reputation of, and public trust in, those criticised. Our task is to strike an appropriate balance between these interests.

[60]  We have given careful consideration to the lengthy submissions provided and concluded that the potential harm to the Society alleged in the complaint has been mitigated by the steps taken by TVNZ to meet its obligations under broadcasting standards. Therefore any restriction on the right to freedom of expression on this occasion would be unjustified.

[61]  We have outlined our findings in relation to each of the nominated broadcasting standards below.

Balance

[62]  A number of criteria must be satisfied in order for the balance standard to apply. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.7

[63]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.8  A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.9

[64]  The focus of the broadcast was an investigation into the operation of a public organisation that serves a particular section of the New Zealand community. Considering the nature of the Society, its role in New Zealand and importance to the health of the community it serves, and the contentious debate surrounding questions raised in the broadcast, we find that the programme considered a controversial issue of public importance for the purposes of this standard.

[65]  Further, we accept that this issue was ‘discussed’ as contemplated under the standard and that 1 News is a ‘news, current affairs and factual programme’.  On this basis, we agree that the balance standard applies and we now turn to whether TVNZ made reasonable efforts to present significant points of view within the programme or in the period of current interest.

[66]  The assessment of whether a reasonable range of other perspectives has been presented includes consideration of a number of factors, including:10

  • whether the programme purported to be a balanced examination of an issue
  • whether the programme was clearly signalled as approaching a topic from a particular perspective
  • whether the programme was narrowly focused on one aspect of a larger, complex debate
  • whether listeners could reasonably be expected to be aware of views expressed in other coverage, including coverage in other media.

[67]  Ultimately, the objective is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).11

[68]  The Authority has recognised that an assessment of whether a reasonable range of perspectives on an issue has been presented includes consideration of whether the programme was clearly signalled as approaching a topic from a particular perspective, such as advocacy programmes or authorial documentaries. While this does not remove the requirement for balance, when viewers understand that a programme is clearly focussed on advancing a specific point of view, there may be a lesser requirement to present opposing viewpoints.12

[69]  The focus of the broadcast was reporting on allegations made against the Society and its CEO. In reporting on these allegations the item also included the Society’s perspective on a number of issues including:

  • the Board’s confidence in the CEO
  • the Board’s perspective on the Society’s financial position
  • the perceived ongoing attacks from former employees and the community due to changes introduced and discrimination against the CEO
  • that the Board had investigated one complaint recently and found no evidence of bullying
  • that the Society had been the recent recipient of awards.

[70]  The majority of the Society’s complaint under the balance standard seems to revolve around the amount of detail regarding the accusations provided to viewers in the broadcast, in contrast to the shorter concise summary of the Society’s position in response. We have previously found that ‘balance need not be achieved by the “stopwatch”, meaning that the time given to each competing party or viewpoint does not have to be mathematically balanced.’13

[71]  In our view, while the broadcast clearly focussed on the existence of the accusations and discourse about them, it did not purport to confirm the accuracy of the extensive claims made by staff and former Board members. Rather it sought to make the public aware of their existence and give viewers an understanding of the current conflict surrounding the Society.

[72]  We also do not consider the level of detail about the allegations provided to viewers in the broadcast to be unusual, taking into account the length and nature of the segment. The broadcast featured high-level accusations and concerns about the Society that were clearly portrayed as being from various parties who have been involved with the Society. High-level responses from the Society were then broadcast which responded to the allegations raised. Accordingly, we find that a range of competing viewpoints were presented in the broadcast, which ensured that the audience was aware of the opposing perspectives, enabling them to arrive at their own opinion about the issues.

[73]  For these reasons, we do not uphold the complaint under the balance standard.

Fairness

[74]  Under this standard we have considered whether the society was dealt with fairly in the programme, particularly with respect to whether they were fairly advised of the nature of the allegations raised and whether they were given a fair and reasonable opportunity to comment.

Was the Society adequately informed about the nature of its participation?

[75]  Guideline 11b states that participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.

[76]  We consider that sufficient information about the nature of the allegations made against the Society was provided to the Society through the emails sent to the Society setting out questions which highlighted the nature of the broadcast and the angle of the story.

[77]  We acknowledge the Society’s position that if it had known who had raised the allegations it may have been able to provide a more complete representation of its position and protect better against possible harm to the Society’s reputation.

[78]  However, we do not consider TVNZ was required to disclose its sources or that the failure to do so resulted in unfairness to the Society. The broadcast gave a holistic overview of the allegations and did not drill down into the specifics of individual complaints against the Society. This was appropriate for the short news clip format of the item which did not purport to be a full exposé into the issues. The questions provided by TVNZ to the Society fairly reflected the high level focus of the item and, as discussed further below, the Society was given a fair and reasonable opportunity to respond.

Was the Society given a fair and reasonable opportunity to comment?

[79]  We agree with the complainant that the nature of the item had the potential to adversely affect the Society. Accordingly, under Guideline 11d, it was entitled to be given a fair and reasonable opportunity to comment before the broadcast.

[80]  We have reviewed the correspondence between the parties, and we find the Society was given a fair and reasonable opportunity to comment. Prior to the broadcast, TVNZ rang the CEO and followed up quickly with extensive questions covering a wide range of topics. The reporter sent numerous emails to the Society in an attempt to receive its comments. The reporter also extended the deadline for the Society to respond to give it more time to do so.

[81]  With respect to an on-camera interview, the reporter made it clear this was preferred and gave the Society approximately 24 hours within which to arrange and complete the interview. Once the Society expressed interest in an on-camera interview, TVNZ followed up requesting confirmation and details so TVNZ could send a team out to them to complete the interview.

[82]  We recognise the Society Board have full-time jobs and other commitments in addition to their Society roles and this contributed to the difficulty in finding someone available for an on-camera interview on short notice. However, as a public facing tax payer funded entity, we consider that 24 hours was a reasonable period of time to be given to do make the necessary arrangements. We also note that despite having approximately 24 hours to arrange the interview, the Society offered no options (such as a telephone interview or an interview slightly outside TVNZ’s timeframe). It simply responded (shortly before expiry of the deadline) that the accountant and Board members were not available and asked TVNZ to suggest how an interview could be achieved.

[83]  Recognising the level of public interest in the matters raised in the item, and the importance of reporting it in a fair, accurate and balanced way, we consider TVNZ took the necessary steps to ensure the Society had a fair and reasonable opportunity to comment.

[84]  Lastly, we have considered whether the comments attributed to the Society fairly reflect the overall tenor of the views of the Society.14 We note that an on-camera interview with the CEO or a Board member may have given the audience a better understanding of the Society’s position by giving the Society a human face and its own voice. However, we ultimately find the Society’s position was fairly portrayed through the comments included in the broadcast.

[85]  We recognise that the broadcast did not specifically address the following points:

  • the Society had recently been independently audited by chartered accountants
  • the rationale behind the CEO’s bonus claim
  • the Society’s response to claims that:
    • staff who challenged the CEO were systematically removed
    • the CEO was not acting in the interests of the Tongan community.

[86]  However, on the whole we consider the Society’s position was fairly reflected within the broadcast. The relatively short broadcast focussed on the existence of a large number of diverse concerns regarding the Society that spanned issues of finance, leadership, employment relations and more. The Society’s high level positions on the issues raised were presented in the broadcast. Viewers were made aware of the Society’s perception of its financial position, the sustained attack on the CEO, the Board’s confidence in the CEO and the Society in general, and finally that there had only been one complaint investigated recently (where no evidence of bullying was found). We find this fairly reflects the overall tenor of the views of the Society.

Conclusion

[87]  When dealing with issues of public interest, freedom of expression and the need to allow issues of concern to be reported to the public must be the first consideration.15 On balance, we find the Society was dealt with fairly by TVNZ. While the Society took issue with both the way it was treated procedurally and within the broadcast itself, on the whole we consider TVNZ took all the steps required in obtaining and presenting comment from the Society in a way that fairly reflected its position in the context of the programme. While this broadcast had significant potential to cause harm to the reputation of the Society in the eyes of the community it serves, it also had a high level of public interest and any potential for undue harm was mitigated through the broadcast’s inclusion of the Society’s perspective on key issues.

[88]  In these circumstances, we do not uphold the complaint under the fairness standard.

Accuracy

[89]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.16 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.17 Programmes may be misleading by omission.18

[90]  The requirement for accuracy does not, however apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.19

Was the broadcast inaccurate or misleading?

[91]  The complainant identified the broadcast’s contention that the Society is facing ‘financial problems’ as misleading. We must first determine whether this was a statement of fact or opinion for the purposes of this standard. A fact is verifiable: something that can be proved right or wrong. An opinion is someone’s view. It is contestable, and others may hold a different view. The following matters are relevant, although not decisive, in determining whether a statement is fact or opinion:20

  • The language used in the statement.
  • The language used in the rest of the item.
  • The type of programme.

[92]  We note the language used was vague and the claim is contestable. However, considering the investigative nature of the item and the item’s focus on the existence of allegations and issues, we consider there is an argument that the statement that the Society is ‘facing financial problems’ is a statement of fact to which the standard applies.

[93]  In any event, in the context of the programme as a whole, we find the statement was not misleading. If the statement had been broadcast without the opposing perspective, it may have been misleading, depending on the financial state of the Authority. However, the broadcast contained comment from the Society which clarified that ‘financial documents from 2018 show a tough year for the Society, the Board Treasurer warning dramatic changes need to be implemented. But this year they say things have improved, winning new contracts and, according to the Board, returning a surplus this financial year.’

[94]  Considering the Society’s position on its financial health was clearly portrayed in the broadcast, we consider the statement that the Society is facing ‘financial problems’ was unlikely to mislead viewers as it would have been clear to them this was contested by the Society.

[95]  Therefore we do not uphold the complaint under this standard.

Privacy

[96]  Finally, we turn to the privacy standard. In deciding whether a breach of privacy has occurred, we consider three criteria:

  • whether the individual(s) whose privacy has allegedly been interfered with was identifiable
  • whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy
  • whether the disclosure could be considered highly offensive to an objective reasonable person.21

Was the CEO identifiable?

[97]  It is clear the CEO was identifiable in the broadcast as he is named multiple times and his image is shown.

Did the broadcast disclose private information or material about the CEO?

[98]  To constitute ‘private information’, there must be a reasonable expectation of privacy in relation to the information or material.22

[99]  We consider the references to the CEO’s email correspondence with the board about matters connected to his employment terms and conditions to be private information, over which the CEO had a reasonable expectation of privacy.

Was the disclosure highly offensive?

[100]  The next question to consider is whether this disclosure could be considered highly offensive to an objective reasonable person in the position of the person affected.23 The disclosure of private facts is likely to be highly offensive where the material is particularly embarrassing, sensitive or has the potential to impact negatively on reputation.24

[101]  Employment terms and conditions and negotiations between an employee and employer about remuneration, are generally accepted as highly confidential. Its disclosure on national television without his consent was therefore in our view highly offensive.

Public interest

[102]  Having found the broadcast breached the CEO’s privacy, we now look at whether any defences are available to TVNZ under this standard.

[103]  Guideline 10f to the privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest. For the defence to apply, the level of public interest must be proportionate to the seriousness of the breach of privacy.25 The public interest must also relate to the disclosure of the particular information that is alleged to breach privacy.26

[104]  In making this assessment, we have considered whether there was legitimate public interest in disclosing the CEO’s request for a bonus and extracts from correspondence between the CEO and Board relating to this.

[105]  A matter of public interest is a matter of concern to, or having the potential to affect a significant section of the New Zealand population. On balance, we find there was a legitimate public interest in the bonus request and in the CEO’s views about the Tongan community he serves. Taking into account the alleged state of the Society, the fact that the Society is a public, tax-payer funded, organisation, the alleged concerns about its financial position and Dr Doherty’s role as CEO, we consider that the request for a bonus and his views on the community are directly relevant to the concerns and criticisms which were the subject of the item. Accordingly, we have concluded that the public had a legitimate interest in that information, and the defence therefore applies.  

[106]  As the public interest defence applies we do not uphold the complaint under the privacy standard.

 

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

 

 

 

Judge Bill Hastings

Chair

2 December 2019

 

 

 

 

 


Appendix

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

1                 The Tongan Health Society’s Original Complaint – 21 May 2019

2                 TVNZ’s Original Decision – 19 June 2019

3                 The Society’s Referral and Subsequent Information – 15 July 2019

4                 TVNZ’s response – 10 October 2019

5                 The Society’s final comments – 29 October 2019


1 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
2 Guideline 11d
3 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
4 Section 12 gives the Authority the powers set out in sections 4B, 4C, 4D, 5, 6, 7, 8 and 9 in the Commissions of Inquiry Act 1908, including the ability to require the production of material and to summon witnesses.
5 Comalco v BSA [1995] 9 PRNZ 153 at [161].
6 See for example: Ministry of Health and CanWest TVWorks Ltd, Decision No. ID2007-012 at [13]-[17] and NZ Fire Service and MediaWorks TV Ltd, Decision No. 2016-017 at [15]
7 Guideline 8a
8 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
9 As above
10 Guideline 8c
11 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
12 NZ Fire Service and MediaWorks TV Ltd, Decision No. 2016-017 at [39]
13 See for example: Keren and Radio New Zealand Ltd, Decision No. 2014-144 at [10]
14 Guideline 11f
15 GL and MediaWorks TV Ltd, Decision No. 2018-002 at [41]
16 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
17 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
18 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
19 Guideline 9a
20 Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 62
21 Guidelines 10a, 10b and 10c
22 Guideline 10c
23 Guideline 10b
24 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 60
25 Guideline 10f
26 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61