HSV Melbourne Investigation Report 3053

Investigation Report No. 3053

Background

• On 16 May 2013, the Australian Communications and Media Authority (the ACMA) received a complaint concerning a segment of Today Tonight called ‘Ferocious Family Feuds’ broadcast by Channel Seven Melbourne Pty Ltd (the licensee) on 22 March 2012.
• Today Tonight is a half-hour current affairs program broadcast on weeknights on the Seven Network.
• The segment focused on two separate instances of a parent lending their adult child money and the child subsequently refusing to repay the money.One of those instances involved a father lending his son $70,000 several years ago to start a business. At the date the segment was broadcast, the son had repaid $11,500.
• The complainant is a relative of the father and son. Her complaint is that, during the broadcast, her photographic image was broadcast without her prior knowledge or consent. The photograph was a group shot, taken at the son’s wedding, and showed (from left to right) the father, son, the son’s bride in her wedding dress, and the complainant.
• The complaint to the licensee, made by a solicitor on the complainant’s behalf, submitted that the segment showed a ‘blatant disregard’ for her privacy:

…our client had nothing to do with the alleged dispute. However, Channel 7 made absolutely no effort to hide our client’s face or to explain that [she] had nothing to do with the dispute... [1]

• The licensee has not disputed the complainant’s assertion that it did not obtain her consent before broadcasting the photograph. However, the licensee respondedthat:

The image you refer to appears on screen for approximately two seconds ... [the report] does not name your client, nor does it in any way refer to her, either at the time the photo is shown, or at any time in the report. Moreover, we consider that the report makes it abundantly clear that the dispute is between [the father] and his son.

• Relevant extracts from the complainant and licensee’s submissions are at Attachment A.
• The ACMA has considered the licensee’s compliance with clause 4.3.5 of the Commercial Television Industry Code of Practice 2010 (the Code):

4.3.5 In broadcasting news and current affairs programs, licensees must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast.

4.3.5.1 Subject to the requirements of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child’s parent or guardian) is obtained prior to the broadcast of the material.

Assessment

• This investigation is based on complaint correspondence exchanged between the complainant and the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

• In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable viewer’.

Australian courts have considered an ‘ordinary, reasonable viewer’ to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal.That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[2]

• The ACMA asks what the ‘ordinary reasonable viewer’ would have understood the program to have conveyed. It considers the natural, ordinary meaning of the language used, context, tenor, tone, inferences that may be drawn, and in the case of the presentation of factual material, any relevant omissions.
• Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Codes.

Issue: Material relating to a person’s personal or private affairs, or which invades an individual’s privacy.

Finding

The licensee did not breach clause 4.3.5 of the Code.

Reasons

• As set out in the ACMA’s Privacy Guidelines for broadcasters 2011(the Privacy Guidelines), the ACMA assesses compliance with clause 4.3.5 of the Code by considering:

-Was a person identifiable from the broadcast material?

-Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?

• If the answer to both of the above questions is yes, then there is a potential breach of clause 4.3.5 of the Code.
• The ACMA will then ask was the person’s consent obtained; was the material readily available from the public domain; and was the invasion of privacy in the public interest?If the answer to any of these questions is yes, then there was not a breach.

Whether a person was identifiable from the broadcast material

• In its response to the complainant, the licensee submitted that:

To the extent that your client was identified by viewers, it would only be by those who recognised her – family and friends- rather than from any material shown in the report.

• While the photograph was only shown for approximately two seconds and the complainant was not named during the broadcast, the ACMA notes that the image was a relatively close-up photograph of the four people involved and the complainant was clearly visible.
• In this case, the ACMA considers that the complainant was identifiable for the purposes of clause 4.3.5 of the Code.

Whether material was used that related to a person’s personal or private affairs, or invaded a person’s privacy

• Clause 4.3.5 comprises two tiers, only one of which need be satisfied by the broadcast material; it must relate to a person’s personal or private affairs, for example, by disclosing personal information; or invade a person’s privacy, for example, by intruding upon their seclusion in more than a fleeting way.
• In this case, the photograph was a posed group shot taken at the son’s wedding. The broadcast did not use material of the complainant such as footage of her in a private space in circumstances where she would have had an expectation that she would not be observed by others.
• The ACMA also considers that the image of the complainant was fleeting.
• As such, the ACMA does not consider that the photograph invaded the complainant’s privacy.
• The next issue to consider is whether the material related to the complainant’s personal or private affairs.
• The Privacy Guidelinesstate that:

Personal information can include facts about a person’s health, personal relationships, financial affairs, sexual activities, and sexual preferences or practices. It can also include information about a person’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, criminal record and other sensitive personal matters.[3]

• The complainant submitted that she had nothing to do with the initial loan from the father to the son or the subsequent dispute and that the licensee ‘disregarded’ her privacy by broadcasting the photograph.
• The ACMA understands that the photograph taken of the complainant at the son’s wedding was personal to her. However, for a possible breach of clause 4.3.5 to have occurred, the ACMA must determine that the broadcast disclosed the complainant’s personal information.
• In the licensee’s response to the complainant, it submitted:

In the absence of any other information about your client being included in the segment, we are confident that the material was presented in accordance with our obligations under the Code. Insofar as privacy is concerned, there is no “personal information” about your client disclosed in the photograph or report, as there are no facts about your client’s health, personal relationships, financial affairs, sexual activities or practices or any of the other matters listed in the guidelines.

• The ACMA considers that the complainant’s relationship with the father and son, and their dispute could, in certain circumstances, be regarded as the complainant’s personal or private affairs. However, the ACMA considers that the broadcast did not disclose facts or information about the complainant’s personal or private affairs, including her personal relationships, for the following reasons:

-The complainant was not named in the broadcast and, specifically, there was no reference to her relationship to the father or son

-The complainant’s relationship with the father and son was not apparent from the photograph; she was standing next to the bride, and it was unclear from the photo which, if any, party she was related to

-The photograph was shown so briefly that it is unlikely that a viewer who did not know any of those depicted would have made that connection

-The broadcast did not disclose any further facts about the complainant, for example concerning her associations with the father and son, orconnectingher with their alleged dispute.

• While the ACMA considers that the complainant was identifiable from the broadcast, the broadcast material did not disclose personal information nor intrude upon the complainant’s seclusion in more than a fleeting way.
• Accordingly, the ACMA finds that the licensee did not breach clause 4.3.5 of the Code.

Attachment A

Complainant’s submissions

The complaint to the licensee, made by a solicitor on the complainant’s behalf, submitted that:

...Our client had nothing to do with the alleged dispute. However, Channel 7 made absolutely no effort to hide our client’s face or to explain that [she] had nothing to do with the dispute brought by the [father] against his [son].

This blatant disregard by Channel 7 of our client and her privacy is very serious.

Licensee’s submissions

The licensee stated in its response to the complainant that:

The report you refer to concerned family feuds and included a brief segment regarding the dispute between [father and son]. You have raised concerns about the inclusion of an image in the report, which depicts your client at [the son’s] wedding.

The image you refer to appears on screen for approximately two seconds at 00:58 seconds into the report. It does not name your client, nor does it in any way refer to her, either at the time the photo is shown, or at any time in the report. Moreover, we consider that the report makes it abundantly clear that the dispute is between [the father] and his son. The following statements made by the reporter supports this view:

“In 2003, [the father] lent his boy $70,000 ...”

“With retirement on the horizon, [the father] needs the money back ...”

“The outstanding amount the [the son] owes his dad is ...”

“[reporter to son] ... I just want to talk to you about the money your dad claims that you owe him ... how could you do that to your dad ... are you ever going to pay him back?”

In the absence of any other information about your client being included in the segment, we are confident that the material was presented in accordance with our obligations under the Code. Insofar as privacy is concerned, there is no “personal information” about your client disclosed in the photograph or report, as there are no facts about your client’s health, personal relationships, financial affairs, sexual activities or practices or any of the other matters listed in the guidelines.

To the extent that your client was identified by viewers, it would only be by those who recognised her – family and friends- rather than from any material shown in the report. It is reasonable to assume that the family and friends of your client would have known of her divorce from [the father]. On this basis they must have known that the financial arrangement between [the father and son] had nothing to do with your client ...

ACMA Investigation Report 3053 – Today Tonight broadcast by HSV Melbourne on
22 March 20121

[1]The complaint was received by the licensee on 27 March 2013. As the licensee received the complaint more
than 30 days after the date of the broadcast, this was not a valid complaint under clause 7.2 of the Commercial Television Industry Code of Practice 2010. However, the ACMA notes that the licensee provided the complainant with a substantive response, and the ACMA is conducting this investigation under section 170 of the Broadcasting Services Act 1992 (Cth).

[2]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167.

[3]The ACMA notes that, under the Privacy Act 1988 (Cth), ‘personal information’ includes any information from
which a person’s identify can be ascertained or about an identifiable person. However, actions taken by a media organisation in the course of journalism are exempt from that Act.