GRAEME HART AGAINST HERALD ON SUNDAY

Case Number: 2048

Council Meeting: SEPTEMBER 2008

Verdict: Not Upheld with Dissent

Publication: Herald On Sunday

Ruling Categories: Privacy
Children and Young People
Misrepresentation, Deception or Subterfuge

Mr and Mrs Graeme Hart, through their lawyer, complained to the Press Council that an article in the Herald on Sunday reporting on renovations to their home, and more particularly the photographs accompanying that article, breached their privacy.
A 10-member meeting of the Press Council, in the absence of one member, divided equally between those for upholding and those for not upholding the complaint. The Chairman exercised his casting vote to not uphold the complaint.
Background
Mr and Mrs Hart lodged an application with the Auckland City Council for consent to make alterations to their home. The application was accompanied by floor plans which were described as being extremely precise.
The Herald on Sunday obtained the makeover plans from the Auckland City Council (any member of the public can do this). The newspaper attempted to speak to Mr Hart about the renovations. He declined to do so. However, a business associate contacted the newspaper on Mr Hart’s behalf, asking the editor not to publish the floor plans because the degree of detail disclosed in those plans raised security issues. The editor agreed that the extent of the renovations could be reported without publishing the actual plans. However, he did ask to speak to Mr Hart about his security concerns. That request was declined.
The story was published on 24 February 2008. The front page featured a picture of the house with the headline: “Our richest man’s swanky renovations: EXTREME MAKEOVER OF NZ’S MOST EXPENSIVE HOME”. The story which appeared on page 8 with the headline “$20m mansion’s makeover” covered the estimated value of the property and the nature, scale and probable cost of the proposed renovations. The story is dominated by four aerial photographs showing the house from various angles, under the sub-headline, “Refurbishing New Zealand’s Most Expensive Home”. Two of the photographs are overlaid with text boxes, containing brief descriptions of different aspects of the planned renovations, with arrows pointing to relevant areas of the house.
Complaint
Mrs Hart telephoned the editor on 26 February to complain about the publication of the location of the renovations. On 27 February, a lawyer, acting on behalf of Mr and Mrs Hart, wrote a letter to the editor complaining that the story and, in particular the photographs, were a breach of privacy. The letter said that the article provided a “detailed identification of the interior layout of the home, including spaces that would not normally be known to anyone who had not been invited to enter the house”. It claimed there was no public interest in the renovations. Particular umbrage was taken with a text box arrow indicating the location of a reading room, and a new bedroom for grandchildren.
The letter also complained that the photographs appeared to have been obtained by subterfuge.
Dissatisfied with the editor’s response, the Harts then complained to the Press Council on grounds of breach of privacy (Principle 3). Principles relating to the interests of children and young people (Principle 5) and subterfuge (Principle 9) were also raised in support of the privacy complaint.
Further correspondence submitted that the Harts were entitled to a “zone of privacy” with respect to their personal and family life and maintained there was no public interest to justify the article.
The Hart’s complaint is that the article, in the way that it combined that information with photographs of the house and the text box arrows indicating where and how it would be renovated, was an invasion of their right to solitude and seclusion within their own home.
The Newspaper’s Response
The editor denies any breach of privacy or subterfuge. The newspaper’s position is that Mr Hart was said to be New Zealand’s richest man, is a public figure, that his home is noteworthy because of its value and that the scale and cost of the renovations was newsworthy. The planned renovations to Mr Hart’s home were expected to cost more than a million dollars, which is three times the price of the average New Zealand dwelling. Newspapers all over the world publish photographs of the homes of people in the public eye.
In this case, the photographs were from the sister publication, the New Zealand Herald’s archives. And because they did not zoom in on the premises, it was not possible to see inside the house. The newspaper had not “spied upon the Harts”. Further, the photographs did not show the relationship of the house to public roads and the address was not reported. The editor also pointed out that the arrow to the planned grandchildren’s room had pointed to the second floor roof in a generic way and did not report the details of precise location.
The editor also pointed out that no one had raised privacy concerns prior to publication but he had modified the form in which the newspaper published the information provided in the consent application in direct response to concerns raised. The floor plans had not been published for reasons of security, and instead, arrows had been used to draw attention to the various parts of the home where the renovations were to take place. The editor would have given Mr Hart further opportunity to comment and, if necessary, make adjustments to the article prior to publication, but Mr Hart declined the offer to speak to him.
The Not Uphold Decision
The Statement of Principles is not a rigid code. As the preamble says:
There are some broad principles to which the Council is committed. There is no more important principle than freedom of expression. In a democratically governed society the public has a right to be informed, and much of that information comes from the media. Individuals also have rights and sometimes they must be balanced against competing interests such as the public's right to know. Freedom of expression and freedom of the media are inextricably bound...
The broad principle relating to privacy (principle 3) is expressed in these terms:
Privacy
Everyone is entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of matters of public record, or obvious significant public interest.
Publications should exercise care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not directly relevant to the matter reported.
Those suffering from trauma or grief call for special consideration, and when approached, or enquiries are being undertaken, careful attention is to be given to their sensibilities.
The two situations specifically noted – criminal offending and trauma – illustrate the importance of context. The question of whether the Herald on Sunday article breached the Harts’ “privacy of person, space or personal information” is a question of fact; there is no presumption of a ‘zone of privacy’.

Nor can the privacy principle be looked at in isolation. We take the view that freedom of expression must prevail unless a limitation on that freedom is demonstrably justified. This approach recognises that freedom of expression is the most important principle. It is also consistent with the New Zealand Bill of Rights Act, which affirms that fundamental right to freedom of expression – including the right to impart information through publication of a newspaper. The first question is therefore whether the complainants can establish grounds to restrict publication.

The Harts claim breach of privacy. But everything in the article, including the photographs and information imparted by way of text boxes and arrows pointing to parts of the house, was publicly available. The photographs were not taken especially for the story; they were archived aerial shots that do not attempt to zoom in on the private interior spaces of the house or the people who live there. The interior of the house is not visible in the photographs. There may be one or possibly even two people visible in the grounds but they are details so small and out of focus that it is not possible to identify anyone. No private fact was exposed in the publication of the article.

There was no subterfuge.

Principle 5 (children and young people) does not assist the Harts. The only reference to the grandchildren, so central to the Harts’ concerns, was in a text box summary. No children were identified in the story (in contrast to Case 2019) and the Press Council has not been given any detailed evidence as to how their interests bear on the complaint. For example, there is no reference to the number of grandchildren, their names and respective ages, the timing and frequency of visits.

The editorial decision to refrain from publishing the detailed floor plans and instead summarise the renovations by way of text boxes and arrows pointing to approximate locations, provided sufficient recognition and protection of the Harts’ interests, whether they be classified as security issues or a desire for privacy. Grounds to limit the newspaper’s right to publish have not been established.

In light of our finding that the Harts have not established a privacy interest, we do not need to balance privacy and public interest in this case. However, we note that the general law relating to privacy is in a state of flux and important issues such as the nature and limits of “public interest”, particularly as it relates to “celebrity journalism”, are yet to be settled. The Press Council is charged with promoting freedom of expression and, in our opinion, it should be slow to give ground to privacy or any other development that would inevitably see freedom of expression diminished; it certainly should not be in the vanguard of change.
Press Council members who voted to not uphold this complaint were Ruth Buddicom, Keith Lees, Penny Harding, Aroha Beck and Alan Samson.

The Uphold Decision
This case raises a key issue inherent in the Press Council’s Principle 3: what is properly a matter of the public interest as against the right of privacy? Principle 3 states:

Everyone is entitled to privacy of person, space and personal information and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of matters of public record or obvious significant public interest.

Mr Hart is a wealthy man. Like any other citizen, however, when he proposed to alter his house, the plans were submitted to the local authority for approval. Those members of the Press Council who wish to uphold this complaint do not consider that either of these factors justified intrusion into the Harts’ private space. Building plans put before the local authority are certainly not classified documents. They are open to scrutiny for technical reasons and to serve the interest of openness in government. While technically such details are matters of the public record, it does not automatically follow that a person meeting the requirements of building laws and bylaws should have to face wide public exposure of those details elsewhere. Public interest principles for such publication must be met. Further, details in such public registers are not usually available on a free-for-all basis. Special effort, and payment of a fee, may be needed for members of the public to access them.

Nor does a person’s wealth in any way mean that rights to privacy have been forfeited. It is contended by the newspaper that Mr Hart had talked in public about his business affairs and Mrs Hart had been photographed at social functions. The inference presumably is that they had thereby courted publicity and could not claim a right of privacy. But this would mean that there could be virtually no boundaries around private space. Everyone appears in public and can be photographed in public. The point in this case is that it is widely recognized that Mr Hart does not give interviews or otherwise publicise his personal and family life and the same goes for Mrs Hart.

Equally the obligation to respect privacy does not depend on whether or not a complainant has specifically raised that issue. An obligation to respect privacy is just that.

The Press Council has previously ruled that a New Zealander’s home, like an Englishman’s, is his castle. That case (no.929) was to do with the publication, without notification to the owners, of interior photographs taken during a tour of homes opened to the public for charity purposes. The photographs were taken openly during the course of the tour; the act of publication, however, was an embarrassment to the charity concerned as well as a plain infringement of the right to privacy inside a home.

In this case the photographs have apparently been taken from a distance. But the availability of modern technology does not in itself justify the intrusion into the private space that makes possible. Although no significant details of the interior are on display the newspaper has chosen to show the house from the air and from all sides. Two photographs are overlaid with arrows which unquestionably open a window on the private lives of Mr and Mrs Hart – to do with how they will entertain and where their grandchildren will sleep. The justification was that there would be public interest in renovations on the scale proposed. But if so the editor should surely have made the effort to get photographs which actually demonstrated the work being done – trucks, cranes, scaffolding. Then the pictures might have had relevance to the story. Instead the editor drew from the archives of a sister newspaper photographs which gave no lead as to when and why they had been taken.

In case 929, the Press Council noted that

“Privacy issues must be balanced against the public interest. There is however an important distinction to be made between what is interesting to the public and what is in the public interest. No doubt many members of the public are interested in other peoples’ houses but that is not to say that it is in the public interest to publish information which the owners would rather not be published. It was thoughtless to impinge in this way on the private realm of individuals ….”

Was there a public interest in renovations of the Hart’s house such as to justify overriding the family’s right to privacy? Those who would uphold this complaint say ‘no’. They note that the Australian Press Council has recently determined that for a matter to be of public interest it must involve a matter capable of affecting the people at large, so that they might be legitimately interested in or concerned about, what is going on, or what may happen to others. This case does not fit that definition.

There is widespread concern now about invasion of privacy and about the use of the ‘public interest’ as justification. Public interest issues are not about what rich people propose to do to their houses unless they affect other people. That does not apply in this case. What might be of general or even undue interest to some members of the public is not a justification in itself for intrusion into the private realm.

The privacy questions in this case are bound up with the global onset of celebrity journalism. This is now a fact of everyday life. The growing trend in some sections of the media to cater to the often prurient public interest in the lives of the rich and famous, has unquestionably pushed the boundaries of what was in earlier generations accepted as the right of individuals to privacy and seclusion in their own space. But again there is a distinction to be made between those who court publicity and those who shun it. Mr and Mrs Hart are plainly protective of their private lives – as is their right. The fact that the family in question is wealthy cannot be used to justify a different, and in this case lesser, privacy entitlement. That is discriminatory and opens the way for further invasion of the zone of privacy of other citizens who stand out from the norm.

The Harts have also raised security issues and the associated matter of care and consideration of the interests of children or young people and subterfuge. Clearly they were upset that one of the arrows used to overlay the photographs points to the general area of the house to be occupied by grandchildren. It is not clear why the Herald on Sunday should have taken this liberty. That information can certainly be regarded as prejudicial to the interest of children and their security. It is accepted that the editor tried to make contact with Mr Hart and after discussions with an associate attempted to mitigate the security issues by declining to publish the floor plans. But the arrows are still intrusive. There is no case to answer on subterfuge.

The central issue here is to determine the balance between the right to privacy and the public’s right to know. Questions to do with security and consideration for children are also to be considered. It is the view of the following members of the Press Council that no public interest was served by the publication and treatment of these photographs. They represent an unacceptable intrusion into the private space of Mr and Mrs Hart.

Council members who voted to uphold the complaint were Barry Paterson, Lynn Scott, Kate Coughlan, Clive Lind and Denis McLean.
John Gardner took no part in the consideration of this complaint