McBride, Tim; Tobin, Rosemary --- "Privacy in NZ Broadcasting Law" [1994] PrivLawPRpr 46; (1994) 1(4) Privacy Law & Policy Reporter 63

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Privacy in NZ Broadcasting Law

Tim McBride and Rosemary Tobin conclude their review of New Zealand case law with an examination of the Broadcasting Act 1989.

The Broadcasting Standards Authority was established under the Broadcasting Act 1989 (NZ). It is responsible for receiving and considering formal complaints against television or radio programs. The Authority has the power to take a broadcaster ''off air' for up to 24 hours. It may also impose a fine of up to $5,000. The Authority's jurisdiction to consider privacy complaints is contained in s4(1)(c) of the Broadcasting Act. This requires broadcasters, among other things, to maintain program presentation standards consistent with the privacy of the individual.

In 1992, the Authority prepared an advisory opinion on privacy for all television and radio broadcasters. The advisory opinion was issued unders21(1)(d) of the Act, which provides that the Authority may issue to broadcasters ''advisory opinions relating to broadcasting standards and ethical conduct on broadcasting'. In the advisory opinion, five ''relevant privacy principles' are highlighted.

1. The protection of privacy includes legal protection against the public disclosure of private facts if the facts disclosed were highly offensive and objectionable to a reasonable person of ordinary sensibilities.
2. The protection of privacy also protects against the public disclosure of some kinds of public facts. The ''public' facts contemplated ''concern' events (such as criminal behaviour) which have, in effect, become private again, through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to the reasonable person.
3. There is a separate ground for complaint in addition to the complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion.
4. The intrusion must be offensive to the ordinary person but the individual's interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.
5. Discussing the matter in the ''public interest', defined as a legitimate concern to the public is a defence to the individual's claim for privacy.
6. An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for breach of privacy.

Decisions of the Authority can be appealed to the High Court. In its decisions involving aspects of privacy, both before and after the issuing of the advisory opinion, the Authority has attempted to follow what it considers to be relevant legal principles.

In McAllister [1990] NZAR 324 at 330, the Authority stated that in its view,

... the protection afforded to an individual's privacy ... includes protection against disclosure of private or public facts where, to adopt the phraseology of the American tort, the matter disclosed would be highly offensive and objectionable to the reasonable person of ordinary sensibilities. Whether a disclosure meets that criterion of offensiveness, etc will depend on the circumstances of each case: the protection of privacy cannot be absolute.

In McAllister, the complaint arose following a TVNZ broadcast of the funeral of a Christchurch skinhead who had committed suicide after murdering a City Council worker. The Authority took the view that since the cemetery was a public place and since the pictures had been filmed from a public street, this was a case of the public disclosure of public facts. As a consequence, the disclosure was not sufficiently ''offensive' to satisfy the test.

In Walker (unreported, BSA decision No 6/90, 6 June 1990), the complaint involved well-known Maori commentator, Dr Ranginui Walker. Following the ''self- defence' shooting of burglar, Jimmy Rapata, Dr Walker was reported on an 89 FM news bulletin commenting on the high Maori crime rate. Dr Walker was alleged to have described Maori crime as a legitimate ''re-distribution of wealth'. The breakfast ''disc-jockeys' took exception to this alleged analysis of the problem. Listeners were told that Dr Walker's address and phone number was in the book but if they did not have a phone book the number was as follows [Dr Walker's home address and phone number were then read out]. As a result, Dr Walker was harassed by numerous obscene, abusive and hostile calls.

In its decision, the Authority emphasised that the information broadcast was publicly available and could be ''readily ascertained by anyone concerned to discover it' (at 1). The Authority considered that the broadcast of public facts could infringe an individual's privacy where ''the facts broadcast would be highly offensive and objectionable to a reasonable person of ordinary sensibilities' (at 8). In this case, however, ''the mere broadcast of the information about an individual which can be found in a telephone directory' did not meet the ''highly offensive' test. Despite this, the Authority still considered that s4(1)(c) of the Broadcasting Act had been breached by the broadcast statements which encouraged listeners to act in a manner that would infringe Dr Walker's privacy. He was awarded $500.

In Cook (unreported BSA decision No 1/91, 27 February 1991), the complaint involved the television programme, Fair Go. A Fair Go broadcast involved an item about the personal liability of company directors whose businesses go into liquidation. A young couple who were in severe financial difficulty as a result of the liquidation of a company were featured. The reporter mentioned that a principal in the firm, a Mr Cook, lived in a house which had cost him well over $300,000 and he drove an expensive Swedish motor car. During the voice-over, viewers of Fair Go were shown pictures of Cook's house including the street number.

The Authority considered that the pictures of Cook's house were taken from public land and were public facts. ''The information about Mr Cook falls clearly and unambiguously into the category of "public facts", in as much as the make, model and year of his car, and the price, street number and location of his house are all matters or public record. In addition, the shots of his house and its number were all filmed from a public place.' As a result, the Authority did not consider the disclosure of the particular public facts to be ''highly offensive'. The disclosure was considered to be ''in the context of an item on a topic of public interest' (at 5).

In Clements (unreported, BSA decision No 19/92, 14 May 1992), the complainant, had been involved in a disagreement with another driver about driving behaviour. Clements ended up being pursued by the other driver for approximately 30 minutes. In taking evasive action he drove through a red light and stopped in a neighbour's driveway. Clements found the experience to be a harrowing one and feared for his and his family's safety for some weeks. Some two months later Clements received a phone call from a woman claiming to be the other driver's wife. She indicated that her husband was on his way over to see Clements ''to take revenge'. During the call the woman revealed certain information about Clements including his name; the make and registration number of his car; and his employer's name. The woman concluded the phone call by describing it as a ''candid call'. During the next few days a recording of the phone call was broadcast twice on the breakfast session of Auckland radio station, 89 FM. Clements considered that there had been an invasion of his privacy.

The Authority agreed. While accepting that many of the facts disclosed in the broadcast were public facts, the disclosure of Clements' name was not. Given Clements' strenuous attempts to keep his confrontation with the other driver and his subsequent concerns private, the broadcasting of these, coupled with his name, was ''both highly offensive and objectionable' (at 5). The Authority awarded $1,000 compensation.

In Presland (unreported, BSA decision No 69/92, 28 September 1992), the complaint followed a ''dedication call' by two girls, 12 and 13, both with the same first name. The dedication song was ''Let's Talk About Sex' by ''Salt ''n' Pepper'. In introducing the song and dedication the announcer said ''we know your mothers don't just talk about it'. The mother of the younger girl complained that the broadcast breached broadcasting standards. The Authority agreed. In awarding $750 compensation the Authority considered that the dedication request which referred to the unusual name of the complainant's daughter and her friend with the identical name, was sufficient information to allow listeners who knew of the complainant's family circumstances to identify her. The broadcast exposed her personal life ''in a way which most people would find objectionable' (at 3).

In Kyrke-Smith (unreported BSA decision No 27/93, 18 March 1993), the complaint involved TVNZ reports about an elderly woman, who after being certified dead, was found alive in the hospital morgue. She died some 17 hours later. The broadcasts included shots of her death notice in the press and visuals of her funeral.

Her family complained that the broadcasts had sensationalised and trivialised the event and invaded their privacy. The Authority agreed. The portrayal of the funeral service which showed mourners in the chapel, had been filmed without the family's permission. Its broadcast was a blatant breach of the Authority's privacy principle (3), which ''would not only be offensive to the ordinary person but was insensitive as well' (at 4). It also considered the announcement of the death from a newspaper's death column particularly insensitive. The Authority awarded $2,500 compensation.

In Complainant R (unreported, BSA decision No 176/93, 21 December 1993) the complaint involved a TVNZ news item about the sentencing of a gang member who had intimidated one of two victims of a gang rape. The item included an interview with a police officer who outlined the type of intimidation used as well as footage of the two victims entering a court building accompanied by police officers.

Subsequently, the victim who had not been the subject of intimidation complained that the shot of her entering the court identified her both to the general public and to gang members who had not known previously what she looked like. She claimed that the broadcast had breached her privacy. In awarding $2500 compensation the Authority considered that in revealing the identity of a rape victim whose name had been suppressed at trial, the broadcast was ''highly offensive and objectionable to a reasonable person of ordinary sensibilities' (at 5).

While the above decisions may suggest a high rate of success for privacy complainants, it is important to bear in mind that there have been a number of such complaints to the Authority which have not been upheld. In a brief summary form these include:

TVNZ story involving coroner's decision not to release woman's body for four months - Story said woman had developed drug addition after divorce - Wedding picture shown - Former husband claimed privacy infringement - Complaint declined - No disclosure of private facts nor intentional interference with husband's interest in solitude. (Hansen, unreported, BSA decision No 44/93, 19 April 1993)

Station manager commented on air about action of announcer whom he criticised - Private facts disclosed - While comments could be described as offensive, they were not ''highly offensive and objectionable' - Complaint dismissed. (McCloy, unreported BSA decision No 121/93, 16 September 1993)

TVNZ recording of discussion between immigration consultant and Malaysian applicant, without knowledge of consultant - Complaint dismissed - While electronic eavesdropping on a private business conversation was offensive to an ordinary person, in this case the ''public interest' in exposing questionable practices by an immigration consultant outweighed privacy concerns. (Leckey, unreported, BSA decision No 138/93; 29 October 1993)

TVNZ documentary entitled ''Every widow's dream' showed complainant as a member of an audience at an all-male strip revue - Complaint dismissed - Authority not prepared to conclude that filming a person's attendance at a nightclub without an explicit announcement of the purpose for which filming was taking place, amounted to intentional interference with a person's privacy (H, unreported, BSA decision No 177/93, 21 December 1993)

Tim McBride, Senior Lecturer of Law, The University of Auckland and Rosemary Tobin, Lecturer of Law, The University Of Auckland; the first part of the article is in (1994) 1 PLPR 48.