Case Number: 2484

Council Meeting: FEBRUARY 2016

Decision: Not Upheld

Publication: Taranaki Daily News

Ruling Categories: Confidentiality


Aarron Jacobsen complained about an article published by Fairfax Media on Stuff.co.nz (online) andTaranaki Daily News (print) on 9 September 2015.He said that the article breached Principle 2 (Privacy), 7 (Diversity and Discrimination), 8 (Confidentiality) of the New Zealand Press Council Statement of Principles.

The articles covered the Human Rights Review Tribunal decision on a complaint made by Mr Jacobsen against a dental technician Mr Zhou, who refused to treat him.Mr Jacobsen alleged that the service was not offered because of his HIV status.The complaint was dismissed by the Tribunal and the articles covered the background to the complaint and decision by the Tribunal.

The Complaint

Mr Jacobsen complained that he was not made aware by the Human Rights Review Tribunal that details of his case and subsequent decision would be made public.He believed that his privacy in relation to his health issues had been breached by the Tribunal publishing it on their website.Fairfax Media then covered the Tribunal decision in its articles.Mr Jacobsen argued that Fairfax therefore breached a number of Press Council principles particularly in relation to privacy.Notwithstanding the decision to publish made by the Tribunal, there was no public interest in his case or his health situation.

The Response

Mr Jacobsen complained to the Taranaki Daily News and an email exchange occurred between the complainant and Ryan Evans, Taranaki Regional Editor, Fairfax Media.

The regional editor had considered the complaint and advised Mr Jacobsen of Fairfax’s view on 19 November that they did not consider they had breached the complainant’s privacy.The Human Rights Review Tribunal and its decisions are publicly available on its website. The ruling of the Tribunal does not mention name suppression and Fairfax would not, as a rule, self-suppress judicial information.

Moreover, the regional editor argued that the matters raised in the Tribunal decision were of public interest, and in the public interest Fairfax should report on it.The case raises important questions for both medical practitioners and those patients suffering serious illnesses or disabilities.

He noted that Mr Jacobsen felt that if the decision had been reversed it may have been in the public interest to publish, but surely the issue Mr Jacobsen raised is either in the public interest or not in the public interest regardless of the outcome.

In regards to the complaint about breaching Press Council principles 7 and 8, the regional editor argues that Mr Jacobsen is not a confidential source.Moreover, the Tribunal case was already in the public domain and the article was reporting on the details of the case.The article therefore did not breach the discrimination and diversity principle.

The Discussion

The Council acknowledges the challenges that come with Mr Jacobsen’s health status and also for it now being in the public arena.The case brought to the Human Rights Review Tribunal by Mr Jacobsenwas dismissed because the Tribunal ruled Mr Zhou did not unlawfully discriminate takinginto account Mr Jacobsen’s health status but rather that health status was relevant to Mr Zhou making a medical decision.That medical decision was based on Mr Zhou recognising he did not have the appropriate experience or skills to undertake the procedure.

It is unfortunate that the process around the Tribunal’s judgments was not fully understood by Mr Jacobsen.He believes if he had, he would have asked for name suppression

The Press Council does not have any jurisdiction over the Human Rights Review Tribunal.It can only deal with the complaint made to Fairfax Media about its articles which cover the Tribunal’s decision.

It is important to note the open justice principle in which Tribunal hearings operate unless requests for name suppression are successful.It is with this in mind that Fairfax media covered the decision in its articles.We agree with the regional editor that self-suppression of legal decisions is not appropriate.

Notwithstanding the Tribunal decision being made public, the Council is of the view that the case does raise very important medical questions for medical practitioners and those with serious illnesses and there was a public interest in publishing this finding.

We acknowledge that the publication did seek comment from Mr Jacobsen although without response.The Council believes this might have provided an opportunity for Mr Jacobsen to make his case.

The articles do not breach principles 2, 7 and 8.

The complaint is not upheld.

Press Council members considering the complaint were Sir John Hansen, Liz Brown, Chris Darlow, Jenny Farrell, Sandy Gill, Tiumalu Peter Fa’afiu, John Roughan, Marie Shroff, Mark Stevens and Tim Watkin.


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