When did my privacy become someone else’s business?
Let me put it another way: What right does someone else have, without my permission, to claim my privacy has been breached?
The questions have been raised in my mind by one of the Broadcasting Standards Authority’s latest decisions.
Boston law partners Samuel Warren and Louis Brandeis (later an eminent Supreme Court justice) articulated the modern concept of privacy in a seminal essay in the Harvard Law Review in 1890. It was firmly grounded in the privacy of the individual and her or his right to secure the means to protect it.
The concept has been developing ever since and there is now an established tort of privacy in New Zealand and a Privacy Act. Both are predicated on providing protection and redress for aggrieved parties.
That is as it should be.
So I was pulled up short when I read through the Broadcasting Standard Authority’s finding against TV3’s owner over broadcast of the Oranga Tamariki child uplift video that was part of Newsroom’s damning investigation.
I found the complaint to the BSA on grounds of a breach of privacy was made not by family of the children in the video but by an unnamed third party identified only as WL.
WL’s privacy had not been breached. That was acknowledged by the BSA. Its decision stated:
Compensation for a privacy breach is intended to compensate for harm resulting from a breach of privacy and so is paid to the person who suffered the harm. In the current circumstances, where the complaint was made by a third party and we do not have information about the impact of the broadcast on those involved, we do not consider it appropriate to award such compensation.
Nonetheless, the authority found against TV3’s owners, Discovery NZ Ltd, and ordered it to pay $1500 in costs. The summary attached to the decision stated that the BSA considered there was enough information in the clip to enable identification of the children. Although it acknowledged the high public interest in the item it said the interests of the children were paramount.
“Insufficient steps were taken to protect the children’s identities, and given the highly sensitive and distressing circumstances, the Authority considered the disclosure of footage enabling their identification was highly offensive,” the summary stated.
The video was removed from the Newsroom website by court order last November. I will not go into the issue of identification here because Newsroom (but not Discovery NZ Ltd), is facing prosecution over the video and that issue therefore should be considered sub judice.
I can, however, question the BSA’s decision to adjudicate on the complaint.
Firstly, as the issue of identification is central to both the complaint and the prosecution, the authority should have deferred to the court to determine that matter.
Secondly, I question whether unaffected parties should be able to claim a breach of privacy.
As far as I am aware, there have not been complaints to the BSA from the families or guardians of the children on their behalf, or by Oranga Tamariki. If there had been, they would have been cited in the decision.
There is, of course, a legitimate capacity for citizens at large to complain when their privacy is threatened by government or corporate actions. In those circumstances, it is a reaction to the potential that their own individual rights to privacy are under threat.
No such ‘class action’ is present in the case of TV3’s broadcasting of the ‘up-lift’ video. It was particular, relating to a specific news story. There was no suggestion that the privacy of all, or many, vulnerable children was at stake.
So we’re dealing with specifics. Yet the BSA conceded that “we do not have information about the impact of the broadcast on those involved”. Instead, WL is cast in the role of (we assume unappointed) advocate on the children’s behalf. We have no clue as to the complainant’s identity.
My reading of the BSA code and commentary suggests that the privacy standard was introduced in order that individuals could protect their own right of privacy or that of a child in their care. However, one phrase provides an opportunity for unaffected parties to complain.
It is a contained in a test of what might constitute a breach but can be read to open the door a little wider. This is the phrase: “…highly offensive to an objective reasonable person in the position of the person affected.” I do not believe it should be interpreted as a right of unaffected parties to engage in the complaint procedure. Clearly, however, it has been.
We must assume that WL sees himself or herself as such an objective reasonable person who found the material highly offensive. That, in their book, was sufficient to justify a complaint that the filming of children from Oranga Tamariki was “a gross violation of their privacy…and an exploitation of them.”
Those are matters that will no doubt be determined by the Christchurch District Court, (where Newsroom is facing a criminal charge of breaching the Family Court Act), unless the matter is appealed.
However, it is one thing to prosecute an alleged breach of the law and quite another for a regulatory body to act on a claim by an ordinary member of the public that another’s privacy has been breached. My view is that privacy is no-one else’s business.
Good report card
I may take issue with the BSA’s adjudication on the Oranga Tamariki video, but I concur with Emeritus Professor John Burrows on his findings on the authority’s decisions on the ‘Balance’ standard that is part of its codes of practice.
In a review of five recent decisions, Burrows – co-author of the standard work Media Law in New Zealand –found that” all reached good and workable conclusions”.
He concluded that the most important issues to emerge were:
- The continuing importance of audience expectation,
- Whether an item involves a “discussion”
- When an issue can be said to be controversial
- The difference between accuracy and balance.
“Discussion” can be interpreted in many different ways, but Burrows cannily noted that “its very ambiguity means it can provide a way in which to justify a common-sense decision in 2021 via the wording of a statutory standard drafted in 1989”.
He also perceptively noted the BSA’s references to the Bill of Rights Act. This is what he said:
Much has been made over the years of the importance of the New Zealand Bill of Rights Act 1990 in BSA decision making. The freedom of expression it protects can only be restricted by reasonable limitations which are justifiable in a free and democratic society. This requires a balancing process which involves an assessment of the harm which could be caused by the broadcast in question. In all five decisions in this review the BSA begins its analysis with a five or six line paragraph summarising this Bill of Rights requirement. The wording of the paragraph differs slightly from decision to decision, but its effect is the same. The final sentence is usually in this form: “We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.” Thus, the Bill of Rights was front of mind in the decision-making process. I did not think any of the conclusions reached were inconsistent with it.
Burrows concluded by saying of the BSA: “It has in my opinion one of the most difficult tasks of any New Zealand tribunal. It has to satisfy a wide range of people – broadcasters, complainants, the public, lawyers and judges – in both its decisions and the way it communicates them. It has to operate in a media environment which is changing at high speed. It has to combine common sense with legal compliance, and reality with logic. It has to operate with an Act written 32 years ago.”
There is a little irony in that statement. John Burrows was the chair of a Law Commission review of media regulation in 2013. His far-reaching report The news media meets ‘new media’: Rights, responsibilities and regulation in the digital age recommended a complete overhaul of the regulatory system. It was ignored by the Key Government.
To TVNZ journalist Joy Reid for a frank and very brave disclosure of the effect on her of witnessing death and destruction during the 2011 Christchurch earthquake. The full RNZ podcast is a valuable lesson in why journalists need to look after themselves and why their employers have a duty of care. https://www.rnz.co.nz/programmes/re_covering/story/2018802917/02-joy-reid-the-christchurch-quake
To the Sunday Star Times for an imaginative remake of its Sunday magazine. It may be on matt paper rather than gloss, but the format change together with a design and content shake-up will give the New Zealand Herald’s Viva and Canvas a run for their money. And 8½ pages of advertising in a 32-page book ain’t a bad start.