AB AGAINST RNZ

Case Number: 3303

Council Meeting: August 2022

Decision: Extra Decision

Publication: Radio NZ

Principle:

Ruling Categories:

Overview

  1. Radio New Zealand published an article on March 1, 2022, headlined Covid-19: No freedom yet for ‘bunker babies’. The woman, whose comments were the basis for the story asked for anonymity but says this request was not met. She complains under principles (2) Privacy, (8) Confidentiality and (12) Corrections.

The Article

  1. The story reported the comments of a woman concerned that her child, and other babies born during the pandemic, were living semi-reclusive lives and were missing out on social interaction. 
  2. The woman was identified by a first name only and a pseudonym was used that was very similar to the woman’s real name.  Only the last letter of her name was different. The woman’s hometown was reported as was the fact that her son was born just eight months earlier.

The Complaint

  1. The complainant, who is named in this decision as AB, said that when she contacted RNZ to suggest the story about under 5s during the pandemic, she made it clear that she did not want her name used in the article.
  2. She did not want to be identified for personal reasons and RNZ agreed that she would not be named. There was no discussion whether another name could be used.
  3. However, the story had used a first name that was like hers and one that she was often called. It also reported her locality and her son’s age. She understood that all of these were personally identifiable information under the Privacy Act. The combination of information had led people outside of her household to identify her in the article.
  4. She was baffled that the pseudonym had been chosen when its purpose was to try and protect her privacy.
  5. She contacted the journalist who apologised and said the article would be changed immediately. It took over two hours for it to be changed.

The Response

  1. RNZ acknowledged the complainant’s concern that it had used a name so similar to her own first name and acknowledged it had not been the best pseudonym.
  2. Out of an abundance of caution the name was quickly changed to “Susan” and RNZ believed this resolved the complaint.
  3. RNZ defended the time it took to amend the article. Given the workloads and constraints in the newsroom, the volume of material being processed and the shortages of staff “two hours is more than reasonable to turn around such a request.”
  4. RNZ said news activities were not subject to the Privacy Act or its privacy principles.
  5. RNZ argued that publishing the fact that a woman has an eight-month-old baby and lives in a particular locality would not be viewed as highly objectionable to an ordinary or reasonable person.
  6. The pseudonym had been changed quickly, the reporter involved in the story had apologised to the complainant and corrective action was taken in a reasonable time frame.

The Discussion

  1. The complainant believed RNZ breached the Media Council’s Principles of privacy and confidentiality. Principle (2) says in part:
Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications.
  1. And Principle (8) says in part:
Publications have a strong obligation to protect against disclosure of the identity of confidential sources.
  1. In the first instance the Council notes that the choice of pseudonym was careless. It begs the question - why did the reporter use a pseudonym so similar to the subject’s real name?
  2. It is understandable that the complainant believed RNZ had failed to honour her request that she did not want her name used in the article and that her right to privacy had not been respected.
  3. It is not known how many people might have identified her from the story but clearly some people outside her household did.
  4. She did not want this to happen and she says the disclosure caused her harm. The Media Council has no information to dispute her point and, besides, there is no requirement for her to prove that harm was done to establish her case.
  5. The Council does not accept RNZ’s response that the information “would not be viewed as highly objectionable to an ordinary or reasonable person.” It is not a question that this information might be objectionable. The issue is whether AB wanted to be identifiable to people who read the article, and the understanding reached with the journalist that she would not be identified.
  6. The fact that some people, or even one person, identified her proves her privacy was breached.
  7. The Confidentiality Principle relates to the protection against the disclosure of the identity of confidential sources. It is generally regarded as a necessary protection for people who would suffer consequences if they were named as a source but can extend to people who speak to the media relying on a statement that they will not be named, even without there being obvious disastrous consequences if the statement is not honoured.  It is not for the media to decide whether they can breach an agreement not to publish.
  8. On the face of it, this was not a story where it would be expected that harm would be done by publication, but as we have already noted we accept the complainant’s statement that the story had caused her harm.
  9. The Council, therefore, finds this story breached its Privacy and Confidentially Principles.
  10. The final issue to be considered is whether RNZ dealt with this matter swiftly enough. The Council commends RNZ for its response. The reporter apologised immediately when the issue was raised and the article was amended by changing the pseudonym, removing the locality and the age of the child.
  11. The complainant said it took two plus hours before this was done and RNZ responded saying that two hours was a reasonable turnaround.
  12. As the Council has said in earlier rulings it places a high value on the willingness of publications to apologise and correct matters promptly. RNZ readily apologised and swiftly altered the story and the Media Council commends it for that.
  13. It may seem that the careless selection of a pseudonym was not a major error – it was a slip that many would forgive following a swift apology and correction. But even small mistakes can have consequences and cannot always be absolved with an apology.  Given the express failure to honour a promise not to name, the correction in this instance does not defuse the mistake.  Damage had been done – the complainant had been identified.


Decision:
Upheld on Principle (2) Privacy and Principle (8) Confidentiality, with dissent from two council members.  The complaint that the story breached Principle 12 (Corrections) is not upheld.

Council members considering the complaint were the Hon Raynor Asher (Chair) Jo Cribb, Ben France-Hudson, Judi Jones, Marie Shroff, Alison Thom, Hank Schouten, Jonathan Mackenzie, Rosemary Barraclough, Tim Watkin.

DISSENT (Tim Watkins and Jonathan Mackenzie):

While RNZ erred in its failure to hide AB’s identity as promised, it corrected that error and apologised in approximately two hours. If that error had not been corrected promptly as required under Principle (12) we would have supported an uphold. However, the error was not “significant” and regarding Principle (2) did not impinge on anyone’s grief or the rights of a child. RNZ dealt with its mistake in line with Media Council expectations. The Council should be encouraging media to act responsibly when it makes such mistakes. 

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