Peter A Clarke

The New Zealand 60 minutes has been the subject of an adverse finding by the Broadcasting Authority in NS and SKY Network Television Ltd – 2015-032.

FACTS

On 18 May 2015, and 21 May 2015,  60 Minutes featured  a story about tragic driveway accidents involving children. Part of the story focused on the death of an 18-month-old boy, and the subsequent struggles of his mother. The mother also discussed her other son, S, and photos and footage were shown of him [1]. NS, S’s father, made a complaint alleging that the broadcasts breached S’s privacy [2] .

The 18 month old infant died in his mother’s arms in 2009 in a provincial city after being run over in a driveway by the reversing car of a relative. The mother had another son, S, by a previous relationship [6]. As a result of her son’s death the mother, who had been a capable person became addicted to drugs and her life fell to pieces. She became a prostitute and  lost custody of S to the child’s father. She later became drug-free and began an association with a church. Her story of rescue and rehabilitation generated interest which she told to media outlets such as Woman’s Weekly and the New Zealand Herald. In these stories there was mention of S but never in conjunction with mention of his mother’s drug-taking and prostitution [7].

In the  60 Minutes story one of the deaths the subject of focus was the death of the boy in question and the subsequent struggles of the mother with drugs and homelessness and her prostitution. The mother was featured extensively in the programme and she spoke about her other son, S, and photos and footage of him were shown [8].

The father was concerned that S might suffer because of the information revealed about his mother in promotions. he feared that there could be pressure from others at school and other upsetting consequences. He contacted the broadcaster to express concerns about the broadcast and to make the point that he had not consented to it taking place. He said that the broadcaster agreed to remove photos and video of S and his name from future screenings. There then followed a further promo and a further screening on 21 May 2015. SKY made a mistake of keeping the image of S, which had been removed from still photographs, in photographs in promos. His first name and footage of him was still shown in the repeat broadcast. The father lodged a direct privacy complaint about both episodes and the promo [9].

DECISION

Under Standard 3 broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental well being and reputation, and their ability to develop relationships and opinions away from the glare of publicity [11].

To establish a breach it was necessary to show that S was identifiable.  He was. Private facts about S were revealed, being  his connection with his mother when she was having serious difficulties in life. The disclosures were also found to be highly offensive to an objective reasonable person [13].

Whether the disclosure was highly offensive depends on the protection to which children are entitled. S, now aged nine, is a school boy who has had a difficult life. He was entitled to be kept free from unnecessary additional pressures and problems in life which may have resulted from the programme, including the cruel and unfair pressures that children sometimes face from their peers. It was not necessary or indeed important for him to have been identified in the programme. The programme could have been just as powerful without his identified presence [14].

The mother gave her consent for S’s image to be used.  While usually parents may give consent to what would otherwise be a breach of the privacy of their child, the BSA said there will be situations where the consent of one or both parents is not enough. There are situations where a broadcaster will be able to see that notwithstanding the consent of one or both parents, it would be wrong to breach the privacy of a child. In an overall way, when what would be a breach of a child’s privacy is being considered, broadcasters must satisfy themselves that the broadcast is in keeping with the child’s best interests regardless of consent [16] .

Here the consent of S’s father was not obtained even though the broadcaster knew that S was living with his father.  This should have raised the question of the father’s consent. Because of these particular circumstances, the question of S’s interests should have arisen in the mind of the broadcaster regardless of consent. The question should always be asked, ‘could any harm to this child arise from what we are about to do?’ If the answer is ‘yes’ or ‘possibly yes’ then ways in which this harm can be avoided should be explored. Children should be seen as individuals in their own right and not as attachments to their parents. The broadcasts were not in keeping with the best interests of S [17].

The broadcaster’s claim of freedom of expression did not justify the breach of S’s privacy especially in circumstances where this could have been easily avoided [18].  Rights arising under the principle of freedom of expression are not absolute [19].

An award of compensation was regarded as justified. The award of $1,500 compensation to the complainant for the breach of his son’s privacy was deemed appropriate with a note that “..We have had regard to the high value of the programme otherwise..”

The orders made were:

Pursuant to section 13(1)(d) of the Act, the Authority orders SKY Network Television Ltd to pay to the complainant costs in the amount of $1,500 within one month of the date of this decision, by way of compensation for the breach of his son’s privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

ISSUE

The decision highlights the different criteria that applies to children in privacy cases.  Sixty Minutes was lax in the way it dealt with the issue.  The producers were aware of the issue and partly responded to the concerns.  The award is disappointingly miserly.  Hardly sending a strong message to malefactors.