Investigation Report No. 3143
File no. / ACMA2013/1586Licensee / Channel Seven Queensland Pty Ltd
Station / STQ – Regional Queensland
Type of service / Commercial Television
Name of program / Seven Local News
Date of broadcast / 15 July 2013
Relevant Legislation/Code / Clauses 4.3.5 and 4.3.5.2 of the Commercial Television Industry Code of Practice 2010
Date finalised / 14 March 2014
Decision / No breach of clauses 4.3.5 and 4.3.5.2
Background
· In November 2013, the Australian Communications and Media Authority (the ACMA) commenced this investigation into a complaint concerning a news item reported on Seven Local News, broadcast by Channel Seven Queensland Pty Ltd (the licensee) on 15 July 2013.
· The news item reported on a man who died as a result of a work site accident and included various photos of the deceased (M) and his partner and their infant son. The segment also included an interview with two of M’s friends. A transcript of the news segment is at Attachment A.
· The complaint, made by a relative of M, is that:
o the news item showed photos of M, including photos with his partner and their son, without any prior contact with his partner or family
o the news item included an interview with a ‘so called friend’ outside the school M attended without ‘formal permission’ from his family or the school
o the family wasn’t warned of the news item before it was broadcast, which caused the family ‘grief, pain and hurt’
o M’s son, aged 14 months at the time, was named in the broadcast.
· In her complaint to the ACMA, the complainant indicated that she did not receive a response from the broadcaster. According to the licensee, its response, which was dated 9 October 2013, was initially sent to the complainant by post. The complainant was subsequently provided with a copy of the licensee’s response by email.
· The licensee responded to the complainant that the photos were obtained from an open Facebook page and, as the family declined to be interviewed, the news team interviewed M’s friends.
· The submissions made by the complainant and licensee are at Attachment B.
Matters not pursued
· There appears to be some dispute as to whether the broadcaster contacted M’s family prior to the broadcast. The ACMA notes that the complainant has asserted that the family were not contacted for interview and the broadcaster did not warn the family of the broadcast or seek their permission to interview M’s friends.
· However, there is no requirement under the Code that the licensee must seek permission from the family to interview other people in relation to the accident or to provide the family with advance warning of the broadcast. As such, these aspects of the complaint are not pursued.
Assessment
· This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources have been identified where used.
· 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.[1]
· In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and inferences that may be drawn.
· Once the ACMA has applied this test to ascertain the meaning of the material broadcast, it then determines whether that material has breached the Code.
· 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;
4.3.5.2 for the purpose of this Clause 4.3.5, licensees must exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child. The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which discloses sensitive information concerning the health or welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so;
4.3.5.3 “child” means a person under 16 years.
· Consideration has also been given to the ACMA’s Privacy Guidelines for Broadcasters 2011 (the Privacy Guidelines)[2].
Issue 1: Privacy
Finding
The licensee did not breach clause 4.3.5 of the Code.
Reasons
· As set out in the Privacy Guidelines, the ACMA assesses the licensee’s compliance with clause 4.3.5 of the Code by considering:
o Was a person was identifiable from the broadcast material?
o 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 consider:
o Was the person’s consent obtained - or in the case of a child, that of a parent or guardian?
o Was the broadcast material readily available from the public domain?
o Was the invasion of privacy in the public interest?
· If the answer to any of these questions is yes, then there will be no breach found.
· The complaint is that the photos of M with his partner and young child were broadcast without the family’s consent.
Whether a person was identifiable from the broadcast material
· The ACMA notes that the broadcast presented several images of M, which included:
o a large image of M in the background at the beginning of the segment
o two close-up photos of M with his son
o one photo of M with his partner and son
o two black and white photos from a high school yearbook.
· The ACMA considers that these images, which were prominently displayed, clearly identified M, his partner and their young son.
Whether material was used that related to a person’s personal or private affairs, or invaded a person’s privacy
· The ACMA considers that the material broadcast did not ‘invade an individual’s privacy’ in the sense of intruding upon a person’s seclusion.
· An invasion of a person’s private affairs or seclusion can occur in some circumstances in a public place, including a publicly accessible internet site.
· In this case the footage did not include images of a person engaging in activities that he or she would not expect to be observed or overhead by others (the broadcast of which a person of ordinary sensibilities would find offensive) for example, images of the family grieving.
· However, the ACMA considers that in the context of a broadcast concerning the death of a person, family photographs which identify family members of that person may disclose facts about their personal or private affairs, including their personal relationships.
· Information about an individual may be about their ‘private’ affairs even if the information is not secret or confidential. Images do not need to be of an intimate, embarrassing or sensitive nature in order to disclose personal information.
· Here the information was not displayed so fleetingly that M’s partner’s and son’s identities and the fact of M’s death were not revealed.
· The ACMA considers that in broadcasting the photographs, the licensee used material relating to the partner and son’s personal or private affairs.
Was consent obtained
· The ACMA accepts that the licensee did not obtain the consent of M’s partner for the use of the photographs of herself and their son in the broadcast.
Was the broadcast material readily available from the public domain
· The licensee has indicated that all the photos presented during the news segment were sourced from M’s open Facebook page. The ACMA accepts that the Facebook page was accessible to the public at the time of the broadcast.
· A person creating a Facebook page or posting material on Facebook can choose the extent to which it is shared, by utilising privacy settings. So, the use of privacy settings or other indicators of intention will be relevant to any assessment of whether the use of such material in a broadcast has breached clause 4.3.5 of the Code.
· In this case, the photographs were published on an open Facebook page that did not contain any privacy settings to prevent other parties, including the media, from accessing the photographs.
· The ACMA acknowledges the complainant’s concern that the photographs were broadcast without the consent of M’s family and the news segment, which was presented without any warning to the family, caused the family pain and grief.
· The purpose of the open Facebook page appears to have been to allow interested individuals to view photos posted on that page. In this circumstance, the ACMA is of the view that the absence of privacy settings means that the licensee did not breach clause 4.3.5 of the Code as the material was already available from the public domain at the time of broadcast.
· This finding does not mean that licensees are free to broadcast any material available on the internet without risk of breaching the Code. While the ACMA considers that the use of privacy settings on social networking sites is an important consideration it is not determinative.
Public interest
· As the ACMA has found that the material used in the broadcast was already in the public domain, it is not necessary to determine whether there was an identifiable public interest reason for broadcasting the material.
· Accordingly, the licensee did not breach clause 4.3.5 of the Code in broadcasting the photographs.
Issue 2: Privacy of a child
Finding
The licensee did not breach clause 4.3.5.2 of the Code.
Reasons
· Clause 4.3.5.2 of the Code recognises the vulnerability of children and requires licensees to ‘exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child’.
· This clause also requires that ‘the consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family, or a report which discloses sensitive information concerning the health or welfare of a child [...]’
· The complaint is that the broadcast included photographs of M’s young son and referred to his first name.
Whether material was used that related to a child’s personal or private affairs in the broadcast of a sensitive matter concerning the child
· As noted above:
o The broadcast clearly identified M’s infant son as it included two close-up photos of M with his son. M’s friend also referred to M’s son by his first name.
o The photographs of the child used in the broadcast disclosed personal information about him, being his identify and personal relationships, in connection with facts about his father’s death.
o The Facebook page from which the photographs were sourced was an open page that did not contain any privacy settings designed to prevent other parties from accessing the photographs.
· The absence of privacy settings will not absolve the licensee of its responsibility to turn its mind to the nature of material sourced from the public domain, having regard to the specific circumstances of the broadcast.
· In this case the licensee had a separate and higher obligation to exercise special care concerning the use of the photographs of a child under clause 4.3.5.2 of the Code.
· The ACMA notes that the photos were not inherently sensitive, in that they depicted M and his family in everyday poses that are typical of a family album.
· While M’s death is a matter which would be likely to affect his son’s general welfare, the report did not focus on the health or welfare of M’s child.
· The photographs and other material in the broadcast did not disclose sensitive matters concerning the child such as health issues, his financial welfare, details of his parents’ lifestyle or further details of his current and future care.