The Press Council considered a complaint by Osher Günsberg about an article published by Daily Mail Australia on 5 September 2016 headed “The Bachelor host Osher Gunsberg shows off his 'Bali belly’ as he goes shirtless while filming finale of reality TV show on Indonesian island”.
The article referred to the complainant as “never [having] a hair out of place”, but who “showed a very different side of himself” and “revealed his portly frame and unkempt hair”. The article featured three photographs of the complainant shirtless, in at least one of which he appeared to be dressing or undressing.
The Council’s Standards of Practice require publications to take reasonable steps to ensure factual material is presented with reasonable fairness and balance, and provide a fair opportunity for subsequent publication of a reply if necessary (General Principles 3 and 4); and to avoid intruding on a reasonable expectation of privacy, causing or contributing materially to substantial distress or risk to health or safety (General Principles 5, 6), or publish material gathered by unfair means (General Principle 7)—unless doing so is sufficiently in the public interest. Privacy Principle 1 notes that public figures do not forfeit their right to privacy altogether, and intrusion into their right to privacy must be related to their public duties or activities.
The complainant said that although he was a host of entertainment programs on television, he had never allowed photographs to be taken of him shirtless. He said he had experienced mental illness for a long time and weight gain was a side effect of the medication for the illness. He said he is involved in an organisation concerned with the stigmatisation of those with mental health issues.
The complainant said he was in Bali filming a television program. He was living in a secure hotel and the first time he set foot outside the hotel was on a day off, when he was driven for two hours to a remote village for snorkelling. Shortly after arriving he noticed a scooter pull up and then drive on.
He sensed the rider or passenger may have been a photographer but did not see a camera or them photographing him. He said there was no private place to change into his wet suit and he did so in a side street. He said due to the 30-degree heat and his wetsuit being a full one, he did not put the top part of the wet suit on as he walked the short distance to the boat. He remained there for some minutes checking the diving gear to ensure it was safe and aside from that, he was not deliberately walking around shirtless. On his return to Australia, he was approached by a person who said he had taken some photographs of him, implying that these photographs depicted him unfavourably.
When he saw the article, including the three photographs and the “Bali belly” heading, he was caught unaware and felt shamed and bullied because of weight gain and because he was on medication which caused that gain.
He said the publication should have been aware of how it would affect him, given his earlier public comments about his problems in these areas. It should have asked for his comment before publication. He said the article was not fair and balanced. It omitted key facts about his circumstances. It had unreasonably intruded on his privacy, caused him substantial offence and distress and contributed to prejudice against people with mental illness being overweight due to medication.
He said the publication published material which had been obtained by deceptive or unfair means.
He said he spoke out about the article on a radio program he co-hosts but did not contact the publication directly to complain about the article and did not want to have alterations to it or a right of reply to the article. He said this was because it would attract more attention to the story, reward the publication for its article and allow the publication to make further comment.
The publication said the article was light-hearted and primarily focused on the photographs.
The reference to “Bali belly” was a pun based on his being in Bali and showing his belly, and was not intended as an insult.
It said the article was fair and balanced and did not omit key facts. Much of the story was devoted to the complainant’s relationship with his weight and detailed his preference for now leading a healthy lifestyle. The publication said these aspects were based on the complainant’s willing discussions about them in the media, effectively inviting public commentary on such subjects. The publication included previous comments by the complainant about his mental health and weight concerns and so considered it unnecessary to seek comment. It exercised judgement and omitted material it otherwise could have included.
The publication said that as a celebrity who hosts primetime entertainment shows with a significant television presence and social media following, the complainant is a public figure. It said as with all celebrities, he is the subject of constant publicity for both his involvement in the shows he hosts as well as his private time. In such circumstances, paparazzi photographs would not be unexpected, which it said appeared to be the case here, with the complainant seemingly looking into the lens for one of the photographs. It said every celebrity knows they are open to being photographed and it is not reasonable to think the complainant would be ‘blindsided’ by being photographed.
It said the pictures of the complainant were not commissioned by it but supplied unsolicited by a reputable picture agency. They were not improperly obtained but taken on a popular public beach as indicated by the other people in the photographs. The complainant was in full view of members of the public and at close enough range, coupled with the circumstance that in one photograph he appears to be looking at the photographer, to suggest that the complainant had seen the photographer. The publisher said it gave careful consideration to whether to publish the photographs and noted there was no private activity taking place on the beach, and one of the photographs showed the complainant apparently surveying the beach shirtless.
The publication said the complainant has not been concerned about protecting privacy in relation to his fluctuating weight because as recently as last year he made public jokes about this, describing himself as “chubby”, and it was unreasonable for the publication to assume the article would cause him substantial distress. The publication did not argue that any intrusion of privacy or distress was in the public interest.
It said the complainant had not raised any concerns with it before making the complaint to the Council, and it was willing to make some changes to the article.
The Council accepts the complainant has spoken publicly about his weight concerns and the mental condition requiring medication which contributes to those concerns. It considers the publication took reasonable steps to ensure opinions expressed in the article were based on accurate factual material and key facts were not omitted. Accordingly, General Principles 3 and 4 were not breached.
The Council accepts the complainant has not exploited shirtless images of himself. The photographs were taken at a beach far away from the complainant’s filming activities on a day off, on his only day away from a private hotel, and the Council accepts that he did not see a camera taking photographs. The Council considers that while the complainant is a public figure, he has not forfeited his right to privacy altogether.
The Council considers the subject matter of the article did not relate to the complainant’s public activities. Photographs of a celebrity will frequently not breach a reasonable expectation of privacy. However, given the fairly remote location, the care exercised by the complainant in the past to not be photographed shirtless, his lack of alternatives in the circumstances and the covert nature of the photographs, he retained a reasonable expectation of privacy which was intruded upon by the photographs and the references to “Bali belly”. There was no public interest to justify such an intrusion. Accordingly, the publication breached General Principle 5 and Privacy Principle 1.
The Council considers the complainant’s history of mental illness and weight gain are in the public domain as a result of the complainant’s own doing and are well known. But by referring to “Bali belly”, and using the photographs in the manner it did, the article went beyond those matters to ridicule the consequences of his mental illness medication and was likely to cause substantial offence or distress to the complainant for concerns he acknowledged. In this respect, the publication failed to take reasonable steps to avoid causing offence, distress or prejudice to the complainant, without a justifying public interest. Accordingly, the publication breached General Principle 6 in this respect.
As to General Principle 7, the Council notes the publication did not commission the photographs which were provided unsolicited by an agency. While the Council accepts that the complainant did not see the photographer taking the photographs, the Council is not satisfied that the photographs were gathered by deceptive or unfair means. Accordingly, the Council considers the publication did not breach General Principle 7.
Relevant Council Standards
This adjudication applies the following General Principles of the Council.
Publications must take reasonable steps to:
3. Ensure that factual material is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts.
4. Ensure that where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach of General Principle 3.
5. Avoid intruding on a person's reasonable expectations of privacy, unless doing so is sufficiently in the public interest.
6. Avoid causing or contributing materiality to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest.
7. Avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest.
Privacy Principle 1: Collection of personal information:
In seeking personal information, journalists should not unduly intrude on the privacy of individuals and should show respect for the dignity and sensitivity of people encountered in the course of gathering news. In accordance with Principle 7 of the Council's Statement of General Principles, media organisations should take reasonable steps to avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest. Generally, journalists should identify themselves as such. However, journalists and photographers may at times need to operate surreptitiously to expose crime, significantly antisocial conduct, public deception or some other matter in the public interest. Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities.