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McBride, Tim --- "Recent New Zealand case law on privacy: Part II - the Broadcasting Standards Authority, the media and employment" [2000] PrivLawPRpr 8; (2000) 6(8) Privacy Law and Policy Reporter 133

Recent New Zealand case law on privacy: Part II — the Broadcasting Standards Authority, the media and employment

Tim McBride

Part I — The Privacy Act and the Bill of Rights Act was published in (2000) 6 PLPR 106.

Broadcasting Standards Authority privacy jurisdiction

Under the Broadcasting Act 1989 (NZ), broadcasters are required to maintain standards which are consistent with the:

The Broadcasting Act establishes the Broadcasting Standards Authority (BSA). The BSA replaced the Broadcasting Tribunal established under the Broad-casting Act 1976. The Authority has received over 90 privacy complaints to date.

Valuable sources of information on the BSA’s privacy jurisdiction include:

The following points should be noted.

BSA’s Privacy Principles

The Broadcasting Standards Authority’s Privacy Principles (1992), incorporating the two 1996 Principles, are as follows:

(i) The protection of privacy includes legal protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

(ii) 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, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to the reasonable person.

(iii) There is a separate ground for a complaint, in addition to a 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. The intrusion must be offensive to the ordinary person but an 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.

(iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion. [Inserted 1996.]

(v) 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 person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the ‘public interest’ defence in principle. [Inserted 1996.]

(vi) Discussing the matter in the ‘public interest’, defined as a legitimate concern to the public, is a defence to an individual’s claim for privacy.

(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for breach of privacy.

The BSA has emphasised that:

These Principles raise many issues. Examples include the following matters.

These principles, especially their interpretation by the BSA, are discussed by Burrows and Cheer, Media Law in New Zealand (4th edition, 1999) pp 178-186.

Recent decisions of the BSA

The decisions of the BSA discussed below have been released since the Burrows and Cheer commentary.

C v TV3 Network Services Ltd

In C v TV3 Network Services Ltd (BSA Decision No 1998/120; 1 October 1998), the complaint arose from a documentary entitled Inside New Zealand: Protecting Our Borders. Included in it was footage of the successful detection of a drug smuggler (C). She subsequently complained to the Authority that her privacy had been breached. C claimed she was ‘clearly recognisable’ from the footage, despite her face being obscured. TV3 disagreed.

The Authority rejected her complaint. It held that there had been no breach of Principles (i) or (iv). Although private facts about her were disclosed (such as the fact that she had been an intravenous drug user), the ‘public interest’ defence in Principle (vi) was applicable. Similarly, there had been no breach of Principle (iv). The Authority took the view that

there was some justification in using C’s misdemeanour as an example to caution other potential drug smugglers .... Although she may well have been distressed to be reminded of her folly, the fact is that it is behaviour for which predictable consequences ensue ... (at 4).

E C v The Radioworks Hawkes Bay

In E C v The Radioworks Hawkes Bay (BSA Decision No 1998/132; 22 October 1998), the complaint involved the winner of an on air competition. After it was announced on air that Ms EC had won the competition, a caller to the station referred to her as ‘that bitch E ... C ...’. The caller claimed that she had helped the winner with answers to the competition, but that the winner had refused to include her in the prize of a dinner for four. Apparently, station staff then made two hoax calls in a similar vein.

The BSA considered whether any of its Privacy Principles had been breached. It first considered Principle (iv). This principle attempts to protect against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. The Authority did not consider that the reported comments contravened this principle. No private facts were revealed. Although Ms EC believed that she was being made fun of (something which she did not enjoy), the BSA concluded that the remarks did not abuse, denigrate or ridicule her.

The BSA next considered whether there had been a breach of Principle (v). This principle attempts to protect against the disclosure by a broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. The Authority noted that the complainant’s name had been mentioned on several occasions in connection with the competition she had won. It took the view that by entering the competition, she had consented to the announcement of her name as the winner. However, the Authority noted that she had not consented to the use of her name in a series of subsequent calls. This aspect of her complaint required the BSA to consider Principle (vii).

Principle (vii) provides that an individual who consents to the invasion of his or her privacy cannot later succeed in a claim for a breach of privacy. The BSA took the view that the complainant’s name was in the public arena because she had entered, and won, the breakfast show competition. It concluded that although she had only consented to its use in the context of the particular competition, as a consequence she was not in a position to assert her right to privacy subsequently. As a result, the BSA concluded that no privacy breach had occurred. On the other hand, however, it did consider that there had been a breach by the broadcaster of Broadcasting Standard R2 — Good Taste and Decency. The Authority found that ‘it was offensive, not just to Ms EC, but to all listeners, that a named person was described as a bitch ...’ (at 4).

B v TV3 Network Services Ltd

In B v TV3 Network Services Ltd (BSA Decision No 1998/158; 26 November 1998), the complaint arose out of a news item broadcast on 3 National News in which it was reported that a prison officer had been accused of getting a prison inmate pregnant. Included in the report was footage of a house purporting to be that of the prison officer in question. In fact, this was not correct. B complained to the BSA that her family’s privacy had been breached, in that footage of their family home had been included in the item. She stated that it was her partner’s brother who had been accused. He had never lived at their address. B emphasised that her family had been caused great distress by the broadcast.

The Authority did not consider that there had been a breach of Principle (i). However, it found that there had been a breach of Principle (iii). It noted that TV3 had been advised that the person they were seeking did not live at the house filmed by it. Nevertheless, it still elected to show the footage. While the footage was relatively brief, it accepted B’s complaint that the coverage

sufficed to enable neighbours and school acquaintances of her daughter to positively identify the house and reach the conclusion that it was B’s partner who had been accused of having a relationship with the inmate and fathering her child ... (at 4).

It noted that B’s partner was also employed by the Prison Service. The fact that B’s partner was a brother of the man accused did not, in the Authority’s view, extinguish the family’s right to privacy. The BSA therefore upheld the complaint that there had been a breach of B’s family’s privacy and ordered that TV3 pay $500 to B by way of compensation.

The BSA has had to consider at least two other complaints involving coverage by TV3 of the prison officer accused of having a sexual relationship with an inmate. One was made by the prison officer’s female flatmate. The other was made by the prison officer’s father. Neither privacy complaint was upheld by the BSA. However, in the latter complaint the BSA considered that TV3, in pursuing the prison officer in question down the street and firing questions at him, despite his reluctance to respond, constituted a breach of the ‘door-stepping’ standards, first discussed by the BSA in its 1994 decision in Smedley. The Authority considered that there had been a breach of Standard 4:

There was an element of ambush to the filming, and the persistence of the crew ... bordered on harassment .... While this material was undoubtedly visually effective television, it was obtained in a way which contravened Standard G4 ... (at 10).

W v TVNZ Ltd

In W v TVNZ Ltd (BSA Decision No 1998/168; 17 December 1998), the complaint involved a TV news broadcast in which it was reported that two people had been killed in the crash of a light aeroplane. The report included pictures of the crash. W was the widow of one of those killed. At the time of the broadcast, she had not been informed of the accident. She complained that in its haste to get the item to air, TVNZ had not considered the feelings of the widows and families of the two men killed. W complained that her privacy had been breached. This was rejected by the Authority. It agreed with TVNZ that ‘there was no privacy issue here. The fact of the crash was publicly known, and it was in the public interest to report it, even though, as it transpired, W had not been informed’ (at 4-5).

Black v The Radio Network Ltd

In Black v The Radio Network Ltd (BSA Decision No 1999/003; 21 January 1999), the complaint involved a ‘Radio Sport’ broadcast by TRN in which the breakfast show host was reported as saying that the previous evening he had overheard All Black coach, John Hart, in conversation with his wife in a public place. According to the host, Hart said something like ‘I thought Ross was supposed to be on my side’. This comment was broadcast in the context of a discussion about the possible reappointment of the All Black coach. No complaint was made by Hart. However, a listener, Mr Black, complained, arguing that it was unethical to report a private conversation and a breach of Mr Hart’s privacy. TRN rejected the complaint, arguing that there was a major public interest at the time in the question of who the All Black coach would be. Mr Black then complained to the BSA. Unlike the broadcaster, the BSA considered that there had been ‘a clear breach of privacy Principle (iii)’. The BSA said:

Even if, as suggested, the topic of the private conversation was a matter in which the public was interested, it is clear that the conversation was not intended for public consumption. The Authority considers that the fact that the host admitted to having ‘ducked around’ so that he could not be seen demonstrates that he was aware that it was not intended that he, or anyone else, should be privy to that conversation. It finds that he intentionally interfered with Mr Hart’s right to privacy. ... The Authority considers that it was offensive not only to listen secretly to a private conversation, but subsequently as the host of a sports programme, to publish those comments widely and to speculate as to their meaning’ (at 3).

The Authority rejected the public interest defence contained in Privacy Principle (vi). Simply because the statements were apparently made by the All Black coach in a public place did not mean that it was therefore a matter of public interest:

While the Authority acknowledges that the remarks may well have been interesting to the public, it does not agree that it was in the public interest to report a snippet of an overheard conversation and to speculate on its meaning (at 4).

TRN also argued that it was relevant that Mr Hart himself did not complain. This was acknowledged by the Authority. However, (according to the BSA),

it is not persuaded that that is germane. There may be a number of reasons why Mr Hart did not complain, including that he did not know of the broadcast (at 4).

Mr Black’s privacy complaint was therefore upheld. However, the Authority considered that no penalty was warranted on this particular occasion.

When this decision of the BSA was released, it generated considerable media interest itself. For example, there were reports of the decision in the print media, such as the New Zealand Herald. This meant that the alleged snippet of a conversation between John Hart and his wife was placed yet again in the public domain. Given that the Authority had found that there had been an intentional interference with Mr Hart’s right to privacy, it is interesting to note that as a result of its decision, his privacy was further invaded by the news media exercising what it considers to be its pre-eminent right to inform the public on matters of public interest (as determined by it).

J v Radioworks (Waikato) Ltd

In J v Radioworks (Waikato) Ltd (BSA Decision No 1999/024; 11 March 1999), the complaint involved a radio station announcer who telephoned a woman (the complainant) and asked a number of personal and intimate questions. The announcer claimed he was doing a survey on STDs. The call was broadcast live. The woman, on receiving the call, had identified herself using her first name and her employer’s name. She complained that the call was a serious invasion of her privacy. According to her, she had never been told that the caller was from a radio station, or that it was being broadcast live.

The Authority found that Principle (i) had been breached because ‘J was tricked into disclosing intimate and personal facts in a public forum’ (at 4). It also found that Principles (iv) and (v):

were breached because J was humiliated and embarrassed for the entertainment of the announcer and his listeners, and because her name and that of her employer were disclosed. No public interest defence was applicable (at 4).

The Authority considered that compensation to J was appropriate as she had been both humiliated and distressed by the announcer’s actions. The radio station was ordered to pay her $1000 compensation, together with costs of $750.

R v The Radio Network Ltd

In R v The Radio Network Ltd (BSA Decision No 1999/031; 19 March 1999), the complaint arose following a discussion about bad driving habits on ‘Newstalk ZB’ one morning. The show host apparently described how that morning he had been passed at speed by a car which then crossed all three lanes to exit from the motorway. He then identified the car by its personalised licence plate, ‘saying it was lucky that there was not much traffic on the road as that sort of driving contributed to disaster on the roads’ (at 1).

R, the owner of the car, complained to the BSA that not only was the broadcast abusive, but also an invasion of his privacy. In its defence, the radio station argued that anyone with personalised licence plates was ‘clearly advertising something about themselves’ and that the plates seemed to be inconsistent with the concept of privacy. By way of additional argument, it noted that there was a well known ‘dob in’ campaign encouraged by the police to report bad driving.

The Authority did not consider that there had been a breach of R’s privacy. It noted that there was insufficient information available to necessarily infer that there had been a personal identification of the complainant. However, even assuming that there had been, the Authority was

not convinced that private facts were disclosed in the broadcast. It notes that R’s car was observed on a public road and that its colour and licence plate were facts which would have been discernible by any other person. Similarly, R’s driving manoeuvre when he was said to have crossed three lanes of traffic was a public fact, observable by any other person on the motorway at that time ... (at 3).

As a consequence, the BSA did not consider that there had been a breach of Principles (i) or (iv). The latter principle protects against the disclosure of private facts to abuse or ridicule an identifiable person. The Authority concluded that the facts revealed were not, in its opinion, private facts. As no privacy breach had occurred, it was not required to consider whether, despite a breach of one or more of the principles, the public interest defence in Principle (vi) applied.

DD v The Radio Network Ltd

DD v The Radio Network Ltd (BSA Decision No 1999/062; 14 June 1999), also illustrates the unfortunate consequences which may flow from entering a radio competition. The competition involved a weekend in the Wairarapa. Listeners were invited to write in and describe why they deserved the holiday. Each day certain entries were read. One of these was from a man who was subsequently chosen as the winner. His winning entry was read on a couple of occasions and he was spoken to on air. In his winning entry, the man described how his wife of 13 years had left him and his two young sons a little over a year previously, as she was having an affair with a 19 year old. His letter concluded by stating that his former wife had ‘since been dumped by the 19 year old’.

DD, the man’s former wife, complained to the radio station that the broadcasts in question not only breached broadcasting standards, but her privacy as well. The BSA agreed. It considered that there had been a breach of Principle (i). Private facts relating to her had been disclosed. The facts disclosed on this occasion were ‘indeed highly offensive and objectionable because of their personal nature’ (at 4). Neither the public interest defence nor the defence of consent was applicable. The BSA awarded $250 to be paid to the complainant.

Banbury v TV3 Network Services Ltd

However, in a BSA decision released on the same day, Banbury v TV3 Network Services Ltd (BSA Decision No 1999/060; 14 June 1999), the Authority stated that the privacy principles formulated by it were subject to ‘an overriding public interest defence’. This complaint involved a 20/20 item involving a New Zealand soldier in Vietnam in 1970 who had apparently been killed by ‘friendly fire’. The incident had been allegedly ‘covered up’ by the platoon commander, and the death reported officially as being the result of ‘enemy fire’. Ms Banbury was the late soldier’s sister. She complained to the BSA that her privacy had been invaded when she and another brother had been filmed at an emotional time at a Vietnam veterans’ reunion in 1998. At that time they had accepted an honour on their late brother’s behalf, when they did not know the true situation.

The BSA did not accept that the coverage of Ms Banbury and her brother at the reunion breached her privacy. The Authority was ‘in no doubt that any concern about the privacy of the people attending was overruled by the “public interest” in the story which 20/20 was investigating’ (at 6).

Children’s privacy and BSA complaints

This year the Broadcasting Standards Authority has been particularly concerned about children’s privacy. An outpouring of complaints followed the infamous You Be The Judge program — where results of a paternity test were broadcast live on television (with the child, mother and alleged father all in attendance) — and the report on ‘Holmes’ featuring a mother and her eight year old son, alleged to be suffering from an extreme case of Attention Deficit Disorder. The complaints were upheld and TVNZ was ordered to pay costs to the Crown of $8500.

Subsequently, the Authority issued the following additional Privacy Principle relating especially to children:

Children’s vulnerability must be of prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interests of the child (20 September 1999).

This principle places a significant new burden on broadcasters — that of determining whether the involvement of children or a child in a particular broadcast, even with their consent (or that of their parent or guardian), is indeed in ‘the best interests of the child’. Not surprisingly, the reaction of broadcasters to the new principle has been a mixed one.

BSA privacy jurisdiction — comment

How adequate is this jurisdiction as a possible remedy for privacy violations? There have been an impressive number of decisions involving privacy complaints (more than 90). But, given seriousness of some privacy violations identified by the BSA, the $5000 limit on possible compensation seems totally inadequate. The BSA appears never to have awarded the $5000 maximum. Why? What will it take for there to be a $5000 award? (Compare this with former ACC lump sum awards.) If the BSA is serious about protecting the privacy of the individual, it should be pushing for the limit to be dramatically increased.

Privacy Act 1993 —

news media exemption

The news media are exempted from the Act in relation to their ‘news activities’ (s 2). In the investigation of complaints involving the news media, the Privacy Commissioner has taken an expansive view of the news media exemption. (Note, however, his comments on possible alternatives to the present exemption in Review Report (1998), paras 1.4.49-1.4.62.)

An example of the news media exemption is the recent decision of the Complaints Review Tribunal in Talley Family v NBR [1997] NZCRT 23; (1998) 4 HRNZ 72. Following their inclusion in the 1995 and 1996 editions of The National Business Review ‘The Rich List’, the Talley family made a complaint to the Privacy Commissioner. He took the view that the news media exemption applied. Subsequently, proceedings were commenced before the CRT.

The plaintiff argued that the inclusion of their financial details in the publication violated their rights under the Privacy Act. NBR’s response was that it was not an ‘agency’, because it was covered by the news media exemption. It stated that the object of the list was said to be to identify New Zealand’s wealthiest individuals and families.

The CRT was of the view that:

The CRT also considered a broader approach to the interpretation of the news media exemption. Under both approaches it considered that the exemption applied (see Burrows and Cheer, p 189).

The news media obviously believes almost all media activity is outside the scope of the Privacy Act. What about shows like Target, or Hard Copy? When does a ‘reality’ TV programme cease to be ‘news’ or ‘current affairs’?

Privacy and the print media

As the decision in Talley makes clear, the print media are largely exempted from the application of the Privacy Act 1993. Nor are they subject to the complaints regime contained in the Broadcasting Act 1989. However, since 1972 newspapers have been subject to a form of self-regulation, in the form of the New Zealand Press Council. This Council considers complaints against all daily newspapers, the Sunday newspapers, New Truth, and almost all community newspapers. Recently, its jurisdiction has been expanded to include magazines published by the major New Zealand newspaper publishing groups, INL and Wilson & Horton. Most other magazines published in New Zealand are now covered, but not all.

In August 1999 the Press Council launched its new ‘Statement of Principles’ — a set of guidelines against which the Council will now consider complaints. The Statement contains a series of broad principles which the Council is said to be committed. However, the Council’s advocacy of ‘freedom of the press’ is made clear when it states that there is

no more important principle than freedom of expression. ... The print media is jealous in guarding freedom of expression, not just for publishers’ sake but, more importantly, in the public interest ...

(Copies of the Statement of Principles are available from the Council, PO Box 10-879, The Terrace, Wellington.)

The Statement of Principles refers explicitly to privacy. It states:

The similarity with aspects of the privacy principles formulated by the Broadcasting Standards Authority is immediately apparent. Similar issues arise to those discussed earlier in this paper. For example, what is meant by ‘significant public interest’? Given the Press Council’s unapologetic commitment to freedom of expression, and the news media’s unrelenting hostility to the Privacy Act 1993, it is encouraging that privacy is now being given explicit inclusion in the new Statement of Principles. Some commentators might regard that assessment as somewhat naïve. At the public launch of the Statement, the Chair of the Newspaper Publishers Association made it clear that it was intended to avoid ‘government regulation of the press’ (New Zealand Herald 12 August 1999).

Privacy in employment

This is an increasingly important area of privacy law which is deserving of a paper in its own right (see Roth, ‘Privacy Act 1993 — Workplace Testing, Monitoring and Surveillance’ (1997) 3 HRLP 113-127). Privacy issues include:

Court decisions

Decisions under the Employment Contracts Act 1991, in which privacy issues have been raised, include:

In 1995-96, the Crown Research Institute, ESR Health Ltd, aggressively promoted employee drug testing. The publicity given to such testing has led a number of NZ companies to introduce it, at least for job applicants. This practice received qualified judicial support, albeit in particular circumstances, in Philson v Air New Zealand Ltd (Employment Court, AEC 35/96; 3 July 1996; see Roth, ‘Privacy Act 1993 – Workplace Testing, Monitoring and Surveillance’ (1997) 3 HRLP 113-127). However, in Harrison and Others v Tucker Wool Processors Ltd (WC 63/98), the Employment Court found clauses in a collective agreement providing for, among other things, compulsory unrestricted drug testing to be harsh and oppressive (see Roth [1998] ELB, 134-5; Hodge, ‘Workplace Drug Testing: Recent Developments’ (1998) 4 HRLP 5). This decision has just been overturned by the Court of Appeal (CA260/98; 12 August 1999) and the matter remitted to the Employment Court for reconsideration.

Privacy Commissioner’s Case Notes

In Case No 0632, involving the use of a hidden camera for surveillance of employees in a workplace locker room, the PC’s opinion was that, in the particular circumstances, there was no breach of IPPs 3 and 4.

Conclusion — privacy law alive and well?

Privacy law in New Zealand is alive and well. Or is it? Certainly there has been an outpouring of laws in recent years covering many aspects of individual privacy, coupled with an ever increasing variety of situations in which privacy issues have been raised. Compared with the situation in 1985, when the White Paper on the proposed constitutionally entrenched Bill of Rights was released, the developments in privacy law in this country have been quite remarkable.

Yet I suspect that if we were to talk to an interested layperson on this subject, he or she might well ask whether the privacy of the individual in New Zealand is actually any better protected today than it was in 1985. Of course, it is in certain areas, as the Privacy Commissioner has emphasised in his 1998 Review Report. For example, we now have legal entitlements to personal information which relates to us, which is held in any form by private sector agencies. This broad entitlement exists in few other jurisdictions.

While it is correct that privacy arguments are now being raised in a wide range of contexts, how many prove to be successful at the end of the day? Even when specialist decision-makers (the Complaints Review Tribunal and the Broadcasting Standards Authority) hold that a breach of an individual’s privacy has occurred, their awards have been, for the very most, modest. Are we in danger of devaluing the importance New Zealanders across the political spectrum attach to the protection of their privacy as individuals?

Tim McBride, Senior Lecturer in Law, University of Auckland.

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