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BSA cracks down?

December 20, 2010

Is the Broadcasting Standards Authority, with its new personnel, getting tougher on taste and decency issues on TV? Earlier this year, it upheld complaints against TV3 for a somewhat raunchy scene in Home & Away at 5:30pm , and TVNZ for a somewhat raunchier scene in Hung at 10:10pm. Now it’s upheld two more complaints against TV3, for a sex scene in the movie We own the night shortly after 8:30pm and for a string of graphic scenes from Outrageous Fortune in TV3 News. In the last case, TV3 was penalised $4000.

In the last seven or eight years, successful taste and decency complaints have been fairly rare. Is the newly constituted BSA taking a tougher line? The We own the night decision doesn’t seem out of line with earlier decisions (like the decision on Striptease from 1999). Perhaps the We own the night scene was even more graphic. Home & Away seems more like a departure. Is the BSA becoming more conservative? Is TV getting more sleazy? Are we become more accepting of such scenes, and is the BSA taking that into account enough? Is this just a blip in BSA decisions, as we saw in the early years of the old BSA? Or is it a blip in people’s willingness to complain?

Topics: Broadcasting Standards Authority | Comments Off on BSA cracks down?

Another media name suppression beat up

December 18, 2010

This article, headed “Porn accused gets name suppression” is in fact about a defendant who was denied permanent name suppression. An interim suppression order is due to lapse, but has been continued pending the defendant’s decision to appeal against the denial of permanent name suppression. (It’s obvious that this has to happen, otherwise the appeal would be worthless.)

I wish the media would get over their obsession with name suppression at least to the extent that they could report facts fairly.

Oh, and while I’m at it: in which part of this story, headed “Kane Williamson wants off the rollercoaster”, does the promising young Black Cap say anything that remotely supports the headline?

Topics: Media ethics, Name suppression | Comments Off on Another media name suppression beat up

Pike River privacy IV

December 17, 2010

You may have seen the debate between Dr Nicole Moreham and I about the possibility of a privacy lawsuit against the media for showing pictures of grieving Pike River coal mine relatives leaving the meeting where they were told that the miners had certainly died.

Here’s a recent BSA case that sheds some light. It offers some support for both our perspectives.

The case involved a One News report of a man who drowned at Glenbrook beach trying to save his children as they were trapped on a reef by a tidal change. The reporter warned about the dangers of rapid tidal changes and rips and wearing clothes that get soggy and weigh you down. He noted that it was the second such drowning in a week. But the report also contained footage of CPR unsuccessfully being performed on the man, and one of the paramedics saying “I’m really, really sorry” to a woman (unnamed, but identifiable) who had her face in her hands, sobbing, and dropped to her knees next to the body.

The family themselves didn’t complain. But others did. A majority of the BSA found this was a breach of privacy. In finding the broadcast “highly offensive”, they said:

… we reject the suggestion that capturing the raw grief of a family for television viewing is “natural”, whatever feelings of sympathy it may have aroused in the viewing public. There are times when families choose to share their stories of loss with the New Zealand public, usually to publicise an issue they feel strongly about, but in such cases the publicity is on the families’ terms; they are willing participants who have to some extent come to terms with their loss. The family on the beach did not choose to have their personal tragedy turned into a teachable moment for the rest of the nation; given their extreme vulnerability, it is questionable whether they were in any position to have done so.

[41]   In our view, the item demonstrated a callous disregard for the suffering of the family. An intimate view of a family’s tragedy and grief was captured on camera, but rather than affording a tragic event the sensitivity that it deserved, the event was then used as “wallpaper” for a story structured around a water safety message. We the majority note that the item returned to footage of the grieving family eight times during the short item. Some of the shots were prolonged and featured close up footage of two of the women’s faces. It also showed the women touching their loved one and being comforted by the ambulance officers. We consider that using the family’s tragedy in a way that was bordering on exploitative and voyeuristic was a violation of their privacy and failed to treat the family with dignity and respect.

While they accepted that the drowning and water safety were matters of public interest, and that putting human face on a tragedy can amplify the message, and that broadcasters need to be given some latitude in how they tell such stories, they felt that these factors didn’t justify the degree of invasion in this case, which was “verging on voyeuristic and exploitative”.

I might pause here and note one of the dangers of television production in stories like these. In many cases, the story gets pruned back in the editing. The most intrusive material is left out. Longer and more oblique shots are preferred. Invasive shots are shortened. Particularly distressing details are culled. That’s a responsible process, but in that process, something happens to the sensibilities of those putting the story together. They focus on the difference between the original footage and their story, which seems tame by comparison. It becomes harder for them to see that what’s left in might be offensive. Add that to a broadcasting culture driven by the need for pictures and drama, journalists’ abiding belief in the importance of the stories they tell – which is at once largely true and a bit self-justifying – and a ratings battle which tends to push journalists into treating people as vehicles for stories, losing some basic human decency along the way, and you have a recipe for stories that turn people into roadkill.

I’m not sure that’s what’s happened here. For all I know, those involved adamantly feel that this was a responsible story and others not involved in its production feel the same way.

And in fact, that’s what Peter Radich, the BSA’s chair, said in his dissent:

[5]   I consider that the broadcast of the events surrounding the death of the rescuer was compassionate and sensitive. The face of the rescuer was obscured but the faces of his family were not. The broadcast was a powerful message that drownings involve real people and their families, they cause grief and despair and that in cases like this they also involve bravery and the highest levels of parental care. This to the extent that the man who died had put the interests of his children ahead of his own and had lost his life as a consequence.

[6]   I recognise that it can be said that these events could have been broadcast differently. All faces could have been obscured and the camera could have been more distant. In my opinion in these circumstances the broadcast would have lost much of its potency and the power of the important messages which were conveyed would have been diminished.

Peter Radich says it was not highly offensive and (as I read it) that in any event the broadcast was in the public interest.

The BSA’s decision offers support for Dr Moreham’s view that the Pike River familes could sue. A privacy complaint was upheld concerning intrusive footage of distraught relatives even though they were in a public place. There were no real private facts broadcast, just intrusive images. The courts have indicated that they will take the BSA’s cases into consideration when applying the tort of invasion of privacy.

On the other hand, it also offers support for my view that a Pike River privacy suit wouldn’t be a sure bet. The BSA did not mention the publication-of-highly-offensive-private-facts strand of its privacy powers. It relied on its intrusion strand. So far, our courts have only developed a private-facts strand. In Hosking, the majority judges specifically left open the question of whether NZ law would develop an intrusion strand (see para [118]).

It might also be said that this was a stronger case than the Pike River families might have. The film showed the man dying in front of the relatives. Even so, the case split the BSA. (To be fair, though, the water safety element wasn’t present in the Pike River coverage; that element makes the Glenbrook story to some degree less offensive and more justified.)

As an aside, this case offers an interesting insight into the different perspectives of the new BSA members. It’s notable that the two journalists on the panel, Leigh Pearson and Tapu Misa, both thought the story crossed the line. The gulf between them (the story verged on “exploitative”) and Peter Radich (it was “sensitive”, “compassionate” and “sympathetic”) is a wide one indeed.

Topics: Broadcasting Standards Authority, Privacy tort | Comments Off on Pike River privacy IV

Primer on the New Zealand Constitution

December 13, 2010

Here’s a “Simpleton’s guide to the Constitution” that I wrote for the The Press a few years ago. It seems timely to stick it up again given the government’s new Constitutional review (aka the “Consideration of Constitutional Issues”).      

At the law school where I work, you’ll sometimes find foreign students wandering around the law library looking baffled. “Where is your constitution?” they ask.

“Um. We have one. Really, we do,” we reply sheepishly. “It’s just that it’s not like almost every other country’s constitution, conveniently written down in one place.”

“Well, where is it written down?”

“Ahem. Yes. Well, some of it isn’t written down at all.”

At this point, you can see them wondering what sort of half-baked Mickey Mouse banana republic they’ve just washed up in. They are too polite to ask, though. If they did, we could happily explain that they are quite wrong. New Zealand is a monarchy, not a republic.

We may not have a glorious written constitution forged in the fires of revolution and inscribed with a bill of rights guaranteeing the fundamental rights of the citizenry, but that doesn’t mean we have no constitution at all. A constitution is like a blueprint for government; it sets out how governmental power is exercised: who’s got the power to make what decisions, how those people are chosen, who can make laws, who can interpret them, who enforces them. We have rules about those things, too. But you have to look in a variety of places to find them.

Where the Constitution of the United States, for instance, is a like the bedrock upon which their country is founded, our constitution is like a patchwork quilt under which our country snuggles.

It’s a patchwork that includes (among other things) our electoral laws, the Treaty of Waitangi, the laws that create our court system, some old British laws we’ve carried over from colonial days, Parliament’s Standing Orders, some letters from the Queen that set up the office of the Governor-General, our Bill of Rights Act, and a statute called the “Constitution Act.”

The Constitution Act sounds grand, but it’s not exactly steeped in antiquity. It was passed in 1986. Still, it’s the nearest thing we have to a constitution, and it contains some basic rules about how our government is structured.

It tells us that the Queen is our Head of State, and that the Governor-General acts on her behalf. It says that the Queen and our elected MPs together make up Parliament, which has “full power to make laws.” It sets out how this works: a Bill is drawn up and must be passed by the House of Representatives – but it only becomes law when it’s signed by the Governor-General or the Queen.

You might be surprised to learn that in this day and age, a woman with a fondness for corgis who lives half-way across the globe could have any political power in New Zealand at all. In fact, though, under our constitution the Queen is technically very powerful indeed. If she wanted to, she could dissolve our Parliament, sack the Prime Minister, pardon all our prisoners, and order our armed forces to attack Australia.

You’ll have noticed that she tends not to do things like this. There is a good and sound constitutional reason for this. Under our constitution, the Queen and the Governor-General always act on the advice of our government Ministers. This means that the monarch doesn’t really wield political power at all – the real decisions are made by our elected representatives.

The Queen and the Governor-General are like Superman except that they never take off their Clark Kent clothes.

Obviously, this is a fundamental cornerstone of our constitution. Obviously, something this important – the idea that the monarch’s power is always constrained by the advice of her Ministers – must be written down somewhere. Except that it’s not. It’s a “constitutional convention.”

A convention is an unwritten rule or guideline that tells people what to do in particular constitutional situations. It’s not enforceable in the courts. It evolves from years of practice and habit. Most of our conventions come from Britain.

If you think of the written rules of our constitution, like the rule that Parliament has law-making power, as the bones of our constitutional body, then conventions are like the ligaments and muscle tissue between the bones. They’re not as hard as the bones. They’re sort of messier. They don’t show up in an x-ray. But they’re vital in making the various limbs of the body work. And if important ones break down, your body faces a crisis, even if all its bones are still intact.

Another convention that might surprise you is the unwritten rule that the government resigns if it loses an election. What’s more, the whole notion of the Cabinet is a creature of convention. You won’t see it mentioned in any constitutional documents.

You can see why foreign law students get confused.

Why don’t we turn these things into proper written legal rules? Some people think we should. They say it’s unsatisfactory that such important principles are left up in the air. What if the Governor-General decided she didn’t want to sign a particular Bill into law? There would be a constitutional crisis.

Others argue that the faint possibility that the Governor-General may decide not to assent to a law may make the government think twice before it passes anything too draconian. They say that conventions work fine, and have the flexibility to change over the years in response to modern needs.

Our system is known as the “Westminster” system because it’s so closely modelled on the British constitution. It’s quite different from, say, the US constitution, and not just because our constitutional laws are scattered and some are unwritten. In the United States, the constitution is “supreme.” This means that it’s super-powered law. The rules in the constitution are treated as so important that all other laws have to comply with them. So if the US Congress tried to ban all newspapers, for example, the US courts would strike the law down because it’s inconsistent with the constitutional guarantee of freedom of the press.

This gives US judges a lot of political power, because they have a lot of latitude in the way they interpret the constitution. They have ordered the desegregation of schools and struck down anti-abortion laws, and more recently, decided the outcome of a national election.

New Zealand’s constitution is not supreme law. In fact, as we’ve seen, some of our constitution isn’t even law. Judges can’t use it to strike down laws – even laws that are inconsistent with our Bill of Rights Act. In our country, Parliament is supreme, and can make any law it likes.

The other big difference is that the US Constitution is “entrenched.” That is, there are special rules for changing it. It can’t be done without the agreement of three-quarters of the states, on top of other special processes. Most of New Zealand’s constitution can be changed by a simple Parliamentary majority.

Still, there are some similarities between our constitution and most others. We follow the “Rule of Law,” which at its most basic means that government power is controlled by law and not by “off-with-his-head” type whims. We also buy into the idea that “separation of the powers”. Power should be divided between different branches of government so that no-one has too much of it, or they might be tempted to use it to benefit themselves and their mates. So we have a legislature (the House of Representatives) that makes laws, an executive (the Ministries and Departments, national and local government agencies, police, etc) that administer the laws, and a judiciary that interprets laws. Each branch is supposed to restrain the power of the others. When you have one person who does all three, you have Saddam Hussein.

Of course, there are some rather big holes in this theory, at least in New Zealand. The most glaring problem: government Ministers form a vast power centre. They pull the strings of the Governor-General, they head up the executive, and they dominate Parliament. They can get Parliament to grant them wide powers to make regulations which have the force of law. At their behest, Parliament can overturn any court rulings they don’t like. This dominance has abated slightly under MMP, but it’s still important.

Finally, New Zealand has a thorny constitutional issue all of its own: the Treaty of Waitangi. Most agree that it’s New Zealand’s “founding constitutional document.” Most accept that it’s been breached a lot. Beyond that, there’s not much consensus. The Privy Council has held that the Treaty does not form part of our domestic law except when Parliament includes it in a statute. However, even when Parliament does include a reference to the “principles of the Treaty of Waitangi” in statutes, the meaning isn’t entirely clear.

The upshot: anyone charged with making recommendations about reform of New Zealand’s constitution will be confronted with several knotty problems:

Don’t expect easy answers. There aren’t any.

Topics: General | Comments Off on Primer on the New Zealand Constitution

Toothless Bill of Rights?

December 13, 2010

I think NZ Herald’s John Armstrong is on the money when he lambasts John Key for not fronting up and justifying the decision to hold hearings into the NZ SIS Amendment Bill in private, and for wondering whether there is any real justification.

But his parting shot at the “privacy supposedly protected by New Zealand’s toothless Bill of Rights” is wide of the mark.

For one thing, privacy isn’t protected by New Zealand’s Bill of Rights. The decision was made to leave it out. If John Armstrong is critical of that, then as far as I can tell he’s the only member of the media to take that stand.

As for whether the Bill of Rights is toothless, he might like to reflect on the fact that it has led to significant damages payouts for government breaches of rights (such as for anti-Tibet protesters marched down the street by police so that the visiting Chinese Premiere wouldn’t need to look at them and Rewi Falswasser, who was beaten and pepper-sprayed in a police cell); it has generated a much more principled approach to draft legislation behind the scenes so that officials address and usually iron out rights inconsistencies before legislation is even introduced to Parliament; it has it has changed the interpretation of various criminal laws to make them more rights-consistent; it has pared back the excesses of government regulators such as our censorship agencies and Broadcasting Standards Authority; it has helped remould our defamation laws in favour of political speech; and it has held Ministers to account for the way they use their powers, such as the recent government backdown on the ban on kosher meat slaughter.

If Parliament gets away with passing legislation that’s inconsistent with the Bill of Rights Act too often, then that’s partly the fault of the media for not drawing attention to it. It’s there on a plate: the government even publishes the advice it receives labelling particular Bills as rights-infringing.

Here’s a story: of all the occasions during the 20 year life of the Bill of Rights in which government has enacted legislation in the face of advice from its own Attorney-General that the law is inconsistent with the Bill of Rights, one-third have happened in the last two years.

As it happens, that statistic comes from Claudia Geiringer, who was on The Court Report this week, when we looked at the impact of the Bill of Rights Act since it was enacted.

Topics: NZ Bill of Rights Act | Comments Off on Toothless Bill of Rights?

Wikileaks: the big question

December 12, 2010

In all of the controversy about Wikileaks, one central question seems to remain unresolved: how should we pronounce “Assange”? Is it “an” as in “dance” or “blancmange” or “flange”? [Update: these sites suggest that the first is correct].

The main lesson of the Wikileaks saga for me is that we should be skeptical of government assertions that the revelation of confidential material will lead to the sky falling. We hear it all the time. It was the refrain of the US government during the Pentagon papers saga, the British government during the Spycatcher case, our own government during the Choudhary case. Fear and doom arguments are routinely invoked as reasons for non-release of information under the Official Information Act. As far as I can tell, it’s almost never true. Government is congenitally prone to exaggerate the dangers of information getting out. Often the biggest harm is embarrassment.

Topics: Breach of confidence, General, Official Information Act | Comments Off on Wikileaks: the big question

Pike River privacy III

December 7, 2010

In an earlier post, I wondered whether Dr Nicole Moreham was right to say that the grieving relatives at Pike River, caught on camera shortly after being told that all 29 miners were certainly dead, could successfully sue for invasion of privacy. Here’s her reply:

Thanks, Steven.  I am glad that you agree that there was no public interest in the images of grief-stricken mining families and that, in at least some cases, publication of them was offensive.  Just a couple of thoughts in reply to your points about whether the relatives would be able to satisfy the first requirement of Gault P and Blanchard J’s formulation of the Hosking tort.  That requirement is, “The existence of facts in respect of which there is a reasonable expectation of privacy”.  I would be surprised if future courts were to interpret this requirement in the narrow manner you suggest for the following reasons:

1. ‘Fact’ does not appear to have the narrow meaning that you give to it.  The facts conveyed in the Pike River photos are most likely to be interpreted to be what the grief-stricken family members looked like immediately after they were told of the second explosion.   That is the approach that the courts have consistently taken when the reasonable expectation of privacy test (or the English equivalent) is applied to photographs.  For example, in Douglas v Hello! the English Court of Appeal said that the ‘information’ contained in unauthorised photos of a wedding were what the event and the couple looked like; not the fact that the event had taken place. (I don’t see any material difference between the word ‘facts’ and ‘information’ for this purpose.)   It is also, implicitly, the approach that Abbot DCJ took in L v G when he held that it was a breach of the claimant’s reasonable expectation of privacy to publish photographs of her genitalia (even though she was not identifiable as the person in the photo).  The ‘fact’ in that case must have been what her genitalia looked like; otherwise the case doesn’t make any sense.  If all this involves a strained use of the word ‘fact’, then we should rely on Tipping J’s preferable formulation in Hosking which refers ‘information or material’ in which the claimant has a reasonable expectation of privacy.

If the courts were not prepared to take read ‘facts’ in this way then the action would not cover situations where publication of a photograph is offensive because of the intimate nature of what is shown.   I do not believe that the courts would read the action so restrictively.  Take a journalist who publishes a photograph of a celebrity reliving herself under a tree on a tramp.  If I understand your analysis correctly (and leaving aside, for a moment, the remoteness issue which is not relevant to this part of the analysis) that would not be a breach of the first limb of the Hosking tort because the only ‘fact’ it would convey is the fact that the celebrity went to the loo behind a tree.  There is nothing particularly private about that fact; people do it all the time.  Instinct rebels against that conclusion.  The photograph communicates so much more than the verbal description of that act.  This is an archetypal breach of privacy situation and I cannot believe that courts did not intend the new privacy action to extend to it.  

2.  The reasoning in Peck also supports the point in 1.  It is not clear from the decision whether the television commentary actually revealed that the claimant was trying to commit suicide in the footage shown.  If it didn’t then the European Court’s objection couldn’t simply have been to the broadcaster’s communication of the fact in that Peck had tried to commit suicide.  On the contrary, all of the Court’s language revolved around the distress that Peck was suffering when the footage was obtained.  It was the intrusion into that distress which was held to be humiliating and offensive.  The majority in Hosking expressly said that ‘cases such as Peck’ qualify to some extent the rule that there is no right to privacy when photographed on a public street.  To my mind, that exception would include the families of the miners as they emerged from that meeting.

3.  On a more specific point, I don’t think any store can be put in the fact that the miners’ families knew that the media were present outside the meeting and, in some cases, did not try to hide from them.  This is because (a) the footage suggests that there was nowhere for them to go; and (b) they had other more important things on their minds.

4.  Finally,  I think the restrictive approach you are wondering about here would go against the tide in the privacy jurisprudence.  Different countries use different tests and actions to achieve privacy protection but the legal direction is definitely in favour of more privacy protection rather than less.  A balance has to be struck between these increased protections and freedom of expression but it don’t think the media could seriously argue that liability for publishing gratuitous pictures of grief would prevent them from informing the public about disasters like Pike River in the future. 

Let me, in turn, respond to this. I’m inclined to think that you are underplaying the many indications in Hosking that the judges were very concerned to set the legal threshold for establishing privacy at a fairly high level; that they were wary of allowing it in public places; and that they were seeking some demonstrable harm in those situations. You’re also omitting the fact that the British and European cases stem from a human rights framework that specifically protects privacy; as you know, our Bill of Rights doesn’t, though it does protect freedom of expression. Yes, the international tide is in favour of more privacy not less, but the underlying balance is different here.

Of course, photographs may contain private facts. What someone looks like nude, or when they’re peeing, would be good examples. But if someone streaks or pees openly in public, what they looked like when they did so is no longer private. When Jerry Collins whizzed into a bucket in the middle of Westpac stadium shortly before an All Black game, that was published on the front page of the newspaper. I don’t think either of us think he was entitled to any legal protection.

The photo of the genetalia in L v G also falls into the category of photograph-as-private-fact. But just because what her genetalia looks like is a private fact does not mean that every photograph contains private facts. Pictures of emotional relatives in a public street are distinguishable on several bases: they are in a public place, the disclosure of their images is arguably less offensive; and presumably they could have chosen to remain inside for another half an hour.

Still, I’m not saying you’re wrong. I’m saying that I don’t believe the position is as clear as you think it is.

Topics: Privacy tort | Comments Off on Pike River privacy III

Ask and ye shall receive?

December 2, 2010

Next time you hear the media bleating about our restrictive suicide-reporting rules, consider this. The law allows the media to seek permission from the coroner to report the details of an apparent (or confirmed) suicide. Last night, I asked Chief Coroner Neil MacLean how often the media sought such permission. He said it was extremely rare. How often had they asked him for reporting permission, during his 30-year career as a coroner, I wondered.

He said: never.

I’m prepared to get outraged at unjustified refusals by coroners to grant permission to report details of suicides when the public interest seems to demand it. But I’m equally outraged by the media’s failure to even seek permission, given how often they stress the importance of talking openly about suicide and how harshly they criticise the current reporting rules.

Topics: Journalism and criminal law, Media ethics | Comments Off on Ask and ye shall receive?

Pike River privacy II

December 2, 2010

I’ve since discussed Nicole Moreham’s post (below) with another privacy expert, who agrees with her wholeheartedly.

For myself, I’m not quite so sure. Certainly the grieving families were caught in a distraught and vulnerable moment. I’ll assume that there was no way for them to use to escape the assembled media. Coverage of children and those who were telling the media to piss off seems particularly offensive. And there’s really no redeeming public interest: the stock media argument that the public needs to see the families’ reaction to understand the enormity of the problem just doesn’t wash. This was grief porn: there was no legimate public interest in seeing it.

Still. The tort in New Zealand, as established in Hosking v Runting, revolves around the publication of sensitive private facts. By contrast, in England, the emphasis is on breaches of someone’s reasonable expectation of privacy. That formulation more readily lends itself to invasive intrusions on people’s privacy, even when they don’t reveal any particularly sensitive private information.

True, the definition of a private fact in Hosking is a fact in which there is a reasonable expectation of privacy. Am I splitting hairs? I don’t think so. In New Zealand, you still need to be revealing facts. It’s not about protecting our reasonable expectations of privacy in certain situations, but about protecting against the revelation of information about ourselves. Perhaps the appearance and behaviour of the grieving relatives might be a private fact. But that seems a stretch. We’re not really being told anything we didn’t know before.

In Hosking, the judges say that there will rarely be a reasonable expectation of privacy in relation to photographs taken in a public street. But they say that

in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present in the street in particular circumstances.

The examples they give are Campbell (where a famous model was photographed outside a Narcotics Anonymous meeting, revealing that she had lied about her drug problems) and Peck (where the media published CCTV footage of a man on a public street shortly after he had attempted suicide). It’s certainly arguable that the Pike River families are in a similar position: in a highly vulnerable state in public, and could reasonably expect not to receive publicity. But I wonder whether the analogy is quite apt. The Pike River families surely knew they were being photographed. They had taken no particular steps to shield themselves from public gaze. The footage didn’t reveal a secret (like drug addiction) or capture anything quite as extreme as the aftermath of a suicide attempt. Could it really be said that they had a reasonable expectation of privacy in the circumstances? Maybe. But it doesn’t seem like a slam dunk to me. 

Topics: Privacy tort | Comments Off on Pike River privacy II

Pike River privacy breach

November 26, 2010

My colleague, privacy expert Dr Nicole Moreham, reckons the media are guilty of breach of privacy with their splashy coverage of the victims’ grief-stricken families emerging from the briefing where they were informed of their loved ones’ fate. She has kindly allowed me to cross-post (original source here):

There would be few New Zealanders who are not aware that on Wednesday afternoon, after six days of desperate waiting, family members of the men trapped in the Pike River mine were informed that an second explosion had occurred. There could be no survivors. Family members were informed of the explosion at a public meeting. Numerous media were gathered outside. As the family members emerged from the meeting, just moments after receiving the news, their every expression and reaction was filmed and photographed by waiting reporters. These people did not want their pictures taken. Some gave hand gestures and others told photographers to ‘f%^* off’. Photographs were nonetheless taken and printed. Within hours, detailed images of relatives’ faces were circulated around the world. They appeared on the websites of The New York Times, The Melbourne Age, The Sydney Herald, The Times, The Guardian and the Telegraph. A montage of the same grief-stricken faces (including those of two primary school age children) were spread across the front page of the New Zealand Herald the next morning. Similar photographs appeared on page 2 of the Dominion. Concern has been raised that by disseminating these images, the media have turned individual grief into a commodity to be captured, printed and sold. People are shown at their most desperate and vulnerable: mascara is running, faces are twisted with emotion, people are crying. TV footage shows relatives interrupting tears and intimate conversations to deal with encroaching media. Interviews reveal that for many family members media intrusion has made an already unbearable situation even worse.

It seems that the media’s conduct at Pike River crossed an ethical line. In my view, they have also crossed a legal one. There is a good argument, first, that some members of the media have committed the tort of breach of privacy. The tort’s first requirement is that the relatives had a reasonable expectation of privacy in respect of the events depicted in the images. This is almost certainly established. Courts have made it clear that individuals have a right to be left alone if they are experiencing something traumatic, distressing or humiliating, even if they are in a public place at the time. Leaving a meeting at which one has been told that there is no hope of finding one’s loved ones alive is a paradigmatic example of that situation. The tort’s second requirement is that the publicity given to the images be ‘highly offensive’ to an objective, reasonable person in the shoes of the individual being photographed. A number of factors make this coverage offensive. The photographs were published in the immediate aftermath of the tragedy; they were close up, detailed, and showed the subjects in a raw emotional state. In many cases, the photographs were published in spite of the subject’s objection to their being taken. Some showed children whom courts are particularly astute to protect. It is highly unlikely that relatives were told that publication was imminent. Most people, it is suggested, would find being treated find being treated in that way highly offensive.

Media defendants are therefore likely to be liable unless they can establish that the relatives’ right to be left alone at this moment of grief was outweighed by an overriding ‘legitimate public concern’ in seeing the material. It is not enough to show that there is a general public concern in the Pike River tragedy itself nor that that the public is interested in seeing these kinds of images. Media defendants would have to show that there was a good reason for publishing these images and that the public interest in them outweighed the relatives’ competing right to privacy. The media’s usual argument that publication of the images was justified because they brought home the enormity of the situation is particularly unconvincing here. Few people lack the imagination to understand the despair relatives would feel on receiving news of the deaths after six anxious days of waiting. And there is no suggestion that the country was not taking the situation seriously. Government had already signalled its intention to launch a commission of inquiry. The defence would be unlikely to succeed.

Damages are available under the tort of privacy – the most substantial award so far has been $25,000. But there are costs and risks associated with bringing an action which can deter all but the wealthiest of claimants. (One would like to hope that this was not a consideration when the media decided to publish the images.) Other, more accessible, outlets for redress are also available. If privacy was breached in a television broadcast, any member of the public can make a complaint to the Broadcasting Standards Authority (the BSA). Principle 3(iii) of the BSA’s Privacy Principles provides specific protection against an intrusion which takes place in public if ‘the individual whose privacy has allegedly been infringed was particularly vulnerable’ and the disclosure was highly offensive to an objective reasonable person. Both requirements would seem to be satisfied here. Privacy Principle 7 also requires that ‘children’s vulnerability… be a prime concern to broadcasters’ and that broadcasters satisfy themselves that ‘the broadcast is in the child’s best interests’. Filming a child leaving that meeting is very unlikely to meet that test. The Press Council also give some redress for print media intrusions although their powers are less extensive than the BSA’s and they are in general less inclined to use them.

Families of the lost men will currently have more immediate concerns than the law of privacy and, even with the passage of time, might not wish to bring an action. However, it is important to register that intrusive media conduct is not a necessary incidence of modern life. On the contrary, it is an infringement of a legally protected right to be left alone at times of significant distress and trauma. 

Topics: Broadcasting Standards Authority, General, Press Council, Privacy tort | Comments Off on Pike River privacy breach


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