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Moore and Television New Zealand Ltd - 2013-093 [2014] NZBSA 15 (1 April 2014)

Last Updated: 12 April 2014

Moore and Television New Zealand Ltd - 2013-093

Members

Peter Radich (Chair)
Mary Anne Shanahan
Leigh Pearson
Te Raumawhitu Kupenga

Complainant

Justin Moore of Auckland

Standards

(3) Free-to-air TV Code: Privacy

Dated 1st April 2014

Number 2013-093

Programme Sunday

Channel/Station TV One

Broadcaster Television New Zealand Ltd

Where fields have dotted lines beneath them, you can call up other decisions with the same information.

Summary [This summary does not form part of the decision.]

An item on Sunday reported on an incident in which an innocent civilian was attacked by a police dog when a police dog handler failed to follow correct protocol. The Authority did not uphold the complaint that the broadcast of footage of the dog handler, taken from another programme series, breached his privacy. A combination of factors meant that Mr Moore did not have a reasonable expectation of privacy with regard to the footage, including that it was filmed in a public place, and he had already consented to its release into the public domain as part of a reality television series.

Not Upheld: Privacy

Introduction

[1] An item on Sunday reported on an incident in which an innocent civilian, X, was attacked by a police dog when a police dog handler failed to follow correct protocol. X expressed dissatisfaction at the way the incident was handled by police and called for greater police accountability and oversight. The item contained footage of the police dog handler and his dog taken from an episode of the reality series Dog Squad. His surname and rank were also disclosed. The programme was broadcast on 17 November 2013 on TV ONE.

[2] Justin Moore, the police dog handler, made a direct privacy complaint to this Authority, alleging that the use of the Dog Squad footage to ‘put a face to a name’ without his permission was a breach of contract and a breach of his privacy.

Jurisdiction

[3] This complaint raises two distinct issues: a contractual issue and a privacy issue. The former relates to an agreement between the police, TVNZ and the production company, entered into at the time of filming, prohibiting the use of the footage without permission other than for the Dog Squad programme. The alleged unauthorised use of the footage in Sunday, apparently in breach of that agreement, is outside our assessment of the privacy standard. While it potentially raises fairness issues, no complaint was made under that standard (meaning we are unable to consider it), and ultimately this is a contractual matter for the parties or the courts to resolve, not this Authority.

[4] Our determination is therefore limited to whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the complainant’s privacy breached?

[6] The privacy standard (Standard 3) states that 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, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[7] When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the complainant’s name, occupation and rank were disclosed in the Sunday item, along with footage of him, he was clearly identifiable.

[8] Privacy principle 1 of the Authority’s Privacy Principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[9] Mr Moore argued that the use of his image numerous times in the item upset and distressed his family and the police. He was aware that his name and occupation would be discussed in the programme, saying ‘I accept the nature of the programme and the reason for reporting it’.

[10] TVNZ argued that Mr Moore’s identity in regards to the incident was not a private fact because his name was released by the police, and his image was in the public domain. It maintained that the story was in the public interest as it related to Mr Moore’s breach of the police dog handling protocol and the alleged mishandling of the incident. It was in the public interest to identify Mr Moore, and the footage did not identify him any further than the release of his name and rank, it argued.

[11] The complaint is specific to the broadcast of Mr Moore’s image, not any other identifying details given in the Sunday programme. The issue therefore is whether the broadcast of Mr Moore’s image, in and of itself, breached his privacy.

[12] While a person’s photograph or image can amount to a private fact,[1] in order to establish a breach of privacy, there must be a reasonable expectation of privacy in that photograph or image.[2] This will depend on a range of considerations, including, but not limited to, the place where the filming occurred, the footage captured, the profile of the person, and the way the footage was obtained.[3] Looking at these factors, we find that Mr Moore did not have a reasonable expectation of privacy in regard to his image as captured in the footage because:

• the footage was filmed in a public place
• it showed Mr Moore in police uniform carrying out his duties as a police dog handler
• Mr Moore is a police officer responsible for serving and protecting the public
• the footage was filmed specifically for inclusion in a reality TV series about the work of officials carrying out their public duties in connection with law and enforcement issues
• it was broadcast on nationwide television in Dog Squad so had already been released into the public domain
• there was public interest in the Sunday item and broadcasting the footage therein.
  

[13] While Mr Moore may have harboured an expectation that the footage would only be used in Dog Squad, we reiterate that this is a contractual matter between him and the production company. It is not relevant to our assessment of whether the privacy standard was breached.

[14] Accordingly, we decline to uphold the privacy complaint.

Name Suppression

[15] Mr Moore requested that his name be suppressed in the decision. Name suppression is granted rarely, usually in cases where an individual’s privacy has been breached, or in other exceptional circumstances. We do not consider that any such circumstances exist in the present case, particularly given that Mr Moore’s name has already been publicised.


For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich


Chair


1 April 2014

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1 Justin Moore’s direct privacy complaint – 8 December 2013

2 Mr Moore’s request for name suppression – 16 December 2013

3 TVNZ’s response to the Authority – 10 January 2014
4 Mr Moore’s final comment (including attachments) – 26 January 2014

[1] Hosking v Runting [2003] 3 NZLR 385 (CA).
[2] Ibid, per Tipping J at paragraph [249].
[3] DS and Television New Zealand Ltd, Decision No. 2011-144.