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Pike River privacy IV

By Steven | 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 | 39 Comments »

39 Responses to “Pike River privacy IV”

  1. ross Says:
    December 19th, 2010 at 6:45 am

    The BSA wrote about this complaint:

    “Privacy is recognised as being a special and important right, which is reinforced by the fact that Parliament gave the Authority the power to award compensation for breaches of privacy (section 13(1)(d) of the Broadcasting Act 1989), but for no other standard”.

    In this instance, the BSA declined to award compensation. Who would the Authority have compensated?

  2. Steven Says:
    December 19th, 2010 at 12:04 pm

    Presumably the members of the family whose privacy was violated. The complainants themselves cannot get damages. I think it’s happened before that the BSA has sent damages to someone when the complaint was from someone else, though I can’t remember the case.

  3. pmcgregor Says:
    July 26th, 2011 at 11:07 am

    Hi Steven

    The link to this BSA decision does not work. What is the name of this case?

  4. Steven Says:
    July 26th, 2011 at 11:11 am

    Rae, Shaare and Turley v TVNZ

    http://www.bsa.govt.nz/decisions/show/2487

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