Case Number: 2627

Council Meeting: OCTOBER 2017

Decision: Not Upheld with Dissent

Publication: New Zealand Herald

Ruling Categories: Confidentiality


The complainant (who has a current protection order in place) has laid a complaint about a recentNew Zealand Herald article published in print and online which included a photograph of herself and her children taken in a public place and without her consent. The complainant alleges that two Press Council principles have been breached:

  • Principle 2: Privacy
  • Principle 8: Confidentiality

The article was discussing the amount of rain that had fallen across New Zealand since January 2017 and carried a photo of the complainant and her children; in the image the complainant and one of her children are holding umbrellas. The photo is superimposed on a graphic depicting monthly rainfall in New Zealand.

The photograph was taken in a public place in August 2017 by a NZ Herald photographer.

The complainant has said that if she had been approached by the photographer she would not have consented to her photograph being taken or published as she currently has a protection order in place.

The Complaint

The complaint is based on a NZ Herald article with the headline: A sodden year – and more on way: Twelve months of rain since January as yet another miserable bout of heavy falls and gales closes in.

The article focuses on the amount of rain that has fallen since January 2017 and included a photograph of the complainant and her children, which was taken in a public place but without the complainant’s consent.

The complainant learned about the photograph when a work colleague showed her the newspaper article, “This is a picture of me and my children on our once in a blue moon family outing. It came as a big shock to me when I returned to work from a two-day course and a work colleague handed this copy to me.”

The complainant currently has a protection order in place and for this reason she has said that she would not have agreed to the photograph being taken, “…but [the] fact that your photographer did not ask if it was ok and if he did he would have found out I would have refused due to the fact there is a Protection Order out.”

The complainant expressed the concern she had for her family’s safety, “You could only [imagine] how I might be feeling right now with the facts of this may now open a big can of worms around the safety of my family.”

The complainant posed the following question about keeping her family safe in her original complaint, “My question to you is, how would you keep me and my family [safe] now that I have been identified as being in Auckland and we know this is a small place?”

The complainant acknowledged that photographers can take photographs in a public place, “I understand that photographers have the right to take photos in a public place, but the only thing that indicates a public place here is it states Auckland.” Further, the complainant discusses being identifiable in the image, “I appreciate that photos can be taken in public places if individuals are not identifiable and in this case, we are and have been identified, this was not a photo of people at the All Blacks Game or Christmas in the park.”

The complainant requested that any online publication be removed, “Also if this has been published on any websites could it be removed.”

In later correspondence in reply to the editor’s response, the complainant disputes that the photographer was 50 metres away.

The complainant does not agree that the image was removed in good faith because she says she had “Contacted the News Room with advice that someone would call in an hour, [but that] did not happen”. She says that she had to make two calls to the Press Council for the email address for the NZ Herald and by the time she connected with theHerald via email the image had been removed.

The Response

In a response to the complainant on 8 September, Senior Newsroom Editor at New Zealand Herald, Oskar Alley acknowledged that the complainant had contacted the photo editor and he was able to advise that the photograph had been immediately removed in good faith which was an hour before the complainant contacted Mr Alley, “I am aware that you spoke this morning to our photo editor and explained this background. As a result, I immediately removed the graphic containing the image from our website.” The photograph was also removed from the database which means it cannot be republished.

Mr Alley confirmed the complainant’s knowledge that “photographs can be taken in a public place”.

Mr Alley explained that the “Photograph was taken by a New Zealand Herald photographer in [a public place] during the month of August.” The photograph of the complainant and her children was “taken from a considerable distance of some 50 metres and with a long lens.” Mr Alley has explained that the “photographer was not in a position to approach the complainant for her details because of the distance involved.”

The photograph of the complainant was taken because of the “looming storm clouds in the background, with the people smaller in the foreground.”

Mr Alley has stressed that the photograph was taken “in a highly public place visited by many thousands of people a day.”

The photograph was published three weeks after it was taken as part of a graphic for explaining Auckland rainfall for the year.

Mr Alley does not agree with the complainant that Auckland is a “small place”. Instead he has referred to Auckland as being “a very large region”. He further comments “that there was no information in the article to enable a reader to narrow down the exact location.”

In terms of defining the exact location, Mr Alley has said that the “caption details do not identify in any way where the image was taken.” He further explains, “because the background sky fills so much of the frame there is nothing to identify the location… it is simply presented as a strip of grass.”

In response to the complainant’s question about how she and her family could be kept safe, Mr Alley forwarded a link to the police website on protection orders information which includes what to do in the event of a breach of a protection order.

The Discussion

The complainant has alleged that a photograph taken of her and her children in a public place breachesPrinciple 2: Privacy – this principle refers to privacy of person, space and personal information.

The principle sets out that everyone is normally entitled to privacy of person, space… and that these rights should be respected by publications. There is an exception and that is where there is a “significant matter of public record or public interest”. Reporting on the amount of rain fall since January 2017 could not be categorised as being a significant matter of public record or public interest.

However, as we have previously noted, the photograph was taken in a public place where privacy expectations are obviously reduced. The Council also notes theHerald’s responsible and immediate action in removing the photo from the online story and its archives once the particulars of this case were made known to them.

As the photographer had not obtained consent, perhaps the complainant and her children could have been made less prominent in the image. While we acknowledge that this incident has made the complainant feel vulnerable as there is a protection order in place, there is very little detail that identifies exactly where the photograph was taken. Also, the photograph was produced a few weeks after it was taken.

On this basis, the Press Council does not uphold this complaint.

The Council does however wish to highlight that wherever possible, when children are involved, the photographer ought to obtain consent. The Council acknowledges that in this complaint the complainant and the children are identifiable and the protection of children is a paramount consideration.

The complainant also alleges that Principle 8 – Confidentiality has been breached. This principle refers to the protection against disclosure of the identity of confidential sources. As this principle doesn’t directly relate to this complaint, as the complaint is about a photograph taken in a public place without consent, this principle is not upheld.

The complaint was not upheld with one member, Liz Brown, dissenting from this decision.

Press Council members considering this complaint were Sir John Hansen, Liz Brown, Jo Cribb, Chris Darlow, Jenny Farrell, Marie Shroff, Vernon Small, Mark Stevens and Christina Tay.

John Roughan took no part in the consideration of this complaint.


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