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 privacy complaint about an item covering ‘an early morning street brawl’. The complainant was briefly shown in the item speaking to police at the scene of the brawl. The Authority found that while the complainant was identifiable, the item did not disclose any private information over which she had a reasonable expectation of privacy.

Not Upheld: Privacy

The broadcast

[1]  An item on Newshub Live at 6pm reported ‘…police are on the hunt for a number of people after an early morning street brawl that left the scene covered in blood’. The item discussed the brawl and how a lot of what was filmed was ‘simply too gruesome to show you on TV’ due to the blood ‘splattered everywhere’.

[2]  The report named the street where the brawl took place and included footage from the street that morning. It showed a taxi parked on the street with all four doors open, a woman talking to a police officer, a blurred close-up of the road, several clips of the scene surrounded in police tape and a police officer walking through the scene. The report was just over a minute long.

The complaint

[3]  Sue Wightman identified herself as the woman shown talking to a police officer and complained the broadcast breached her privacy:¹

• She was shown outside an apartment building, and ‘was highly visible … and therefore recognisable’.
• ‘Showing my face on national TV talking to the police could potentially compromise my safety.’
• ‘At the very least I should have been approached and asked if I wanted my face broadcast to the nation talking to the police.’
• ‘I was recognisable as I had a number of people contact me to say they had seen me on the news.’
• While individuals may not be able to expect privacy in a public place, ‘people talking to the police at a crime scene’ should be an exception.
• In future, reporters should ‘approach any individual whom they have recorded talking to the police at a crime scene and seek their feedback before broadcasting’.

The broadcaster’s response

[4]  Discovery NZ Ltd did not uphold the complaint, responding:

• ‘…a person will not usually have a reasonable expectation of privacy in a public place’. 
• The footage was taken while Ms Wightman was in a public street ‘at the scene of a crime earlier that day’.
• ‘A camera crew would not be unexpected at such an event and the camera crew had no reason to appreciate [her] heightened privacy concerns as these were not expressed or explained to them.’
• ‘The footage…was merely setting the scene of the story, giving context to the location where a violent crime had occurred’. 
• The complainant was not named, referred to verbally or otherwise discussed in the news item. The shot of her ‘was fleeting, approximately two seconds in duration’ and her face was not visible.
• ‘The Broadcast did not disclose any private facts about [her] and the Committee is satisfied that the footage would not be highly offensive to an objective reasonable person.’

The standard

[5]  The privacy standard² states broadcasters should maintain standards consistent with the privacy of the individual.

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

• The individual whose privacy has allegedly been interfered with was identifiable.³
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁴
• The disclosure would be considered highly offensive to an objective reasonable person.⁵

Our findings

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

[8]  Our task is to weigh the important right to freedom of expression against the harm potentially caused by the broadcast (in this case, applying the privacy standard). 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.

[9]  As the privacy standard applies only to identifiable individuals,⁶ the Authority must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test under the privacy standard is whether the individual was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁷

[10]  Ms Wightman was not named and was shown briefly; however, it was a full body camera angle, her face was shown from the side, and the street she was filmed on was named. We consider she was identifiable in the broadcast.

[11]  The next question is whether the broadcast disclosed private information about her, over which she had a reasonable expectation of privacy. A person will not usually have a reasonable expectation of privacy in a public place.⁸ There are some exceptions to this, including situations where it is obvious from the circumstances that the individual is particularly vulnerable, such as people who are caught up in emergencies or victims of accidents.

[12]  Ms Wightman was particularly concerned at the risk to her safety posed by an item showing her speaking to police. However, Ms Wightman was on a public street and there were no obvious circumstances suggesting a particular vulnerability. The broadcast did not disclose any details of the nature or length of her discussion with police and there is no suggestion she is a key witness who requires protection. For these reasons we find there was no disclosure of private information or material over which she had a reasonable expectation of privacy.

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

Judge Bill Hastings

Chair

2 August 2021

Appendix

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

1  Sue Wightman’s complaint to Discovery NZ Ltd – 1 May 2021

2  Discovery’s response to the complaint – 20 May 2021

3  Ms Wightman’s referral to the BSA – 8 June 2021

4  Discovery’s confirmation of no further comments – 10 June 2021

¹ While concerned about being depicted in the broadcast, we note the complainant confirmed she was not concerned about being named in our decision.
² Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
³ Guideline 10a
⁴ Guideline 10c
⁵ Guideline 10b
⁶ Guideline 10a
⁷ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59
⁸ As above