BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A caller to a request session on Xtreme 100FM in Hastings at about 9.45pm on 31

July 1997 said the request was for a named person at a named school who was

described as a "friendless bitch" who was "hated by everyone".

Mrs B, the mother of the person named, complained to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast infringed

her daughter's privacy. Mrs B also complained to the broadcaster, H B Media Group

Ltd, that the comment was in bad taste and unfair to her daughter and that her

daughter had been taunted about it subsequently.

Both the announcer and the station's managing director apologised verbally and in

writing to the complainant. On this occasion because of the pressure of calls, they

explained, the station's strict policy of pre-recording requests was not followed.

Now, all calls were recorded before they were broadcast.

Dissatisfied with the broadcaster's response to the standards complaints, Mrs B

referred that matter to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaints and orders the

broadcaster to pay compensation to the complainant's daughter of $250, and costs to

the Crown of $250.

Decision

The members of the Authority have read the correspondence (summarised in the

Appendix). On this occasion, the Authority determines the complaints without a

formal hearing.

The dedication preceding the broadcast of a request on Xtreme 100 in Hastings at

about 9.45pm on 31 July went:

This is for C... B..., who's in the 6th form at .... . You're a bitch, everyone hates

you and you have no friends.

Mrs B, the mother of C B, spoke to the announcer on 1 August about the broadcast

and was told that he had a strict policy of pre-recording all calls and then using his

judgment as to whether to air the calls. However, on the evening in question he said

he had been very busy and the caller had been put to air live. He expressed his

"sincere and unreserved" apologies. The apologies were confirmed in writing. The

announcer was unable to supply a tape of the comment as the air check tape had since

been reused.

Mrs B complained to the Authority that the call was a breach of her daughter's

privacy in contravention of s.4(1)(c) of the Broadcasting Act 1989. Further, she

wrote, it breached the standards in the Radio Code of Broadcasting Practice relating to

fairness and good taste.

A teacher at the school where C B is a pupil has also written to the Authority. She

reported that she had spoken to the two girls who had made the dedication, who

maintained that their call had been pre-recorded, and that they had subsequently

listened to the request when it was broadcast.

Both the broadcaster and the school teacher hold adamant, but opposing, views on the

issue of whether the call was, or was not, pre-recorded. The Authority records this,

but does not consider that it is necessary to reach a decision on this point in its

determination of the complaint. The dedication outlined above was broadcast, and it

is this broadcast which Mrs B has complained about.

The Authority assesses the complaint under the following provisions. First, it is

alleged to be a breach of s.4(1)(c) which requires broadcasters to maintain standards

consistent with the privacy of the individual. Secondly, in view of Mrs B's letter and

the broadcaster's response, breaches of standards R2 and R5 of the Radio Code of

Broadcasting Practice are also claimed. They require broadcasters:

R2   To take into consideration currently accepted norms of decency and good

taste in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

R5   To deal justly and fairly with any person taking part or referred to in any

programme.

The broadcaster did not accept that the announcer acted in bad faith and, moreover,

pointed out that the announcer set standards of behaviour which were expected of his

younger audience. As for the standard R5 aspect, the broadcaster advised that every

caller was now recorded. Mr Richard Lay, the broadcaster's Managing Director,

advised Mrs B:

Once again I would like to apologise, and I hope the people involved have now

resolved their issues, and regret what they have done.

In view of the nature of the comments broadcast, the Authority is in no doubt that it

involved a breach of the privacy requirement in s.4(1)(c). Specifically, it considers

that it amounts to a contravention of privacy principle iv). The Authority applies a

number of principles it has promulgated when determining privacy complaints, and

principle iv) provides:

iv) The protection of privacy also protects against the disclosure of private

facts to abuse, denigrate or ridicule personally an identifiable person. This

principle is of particular relevance should a broadcaster use the airwaves

to deal with a private dispute. However, the existence of a prior

relationship between the broadcaster and the named individual is not an

essential criterion.

The Authority concludes that the broadcast contravened this standard.

The Authority also considers that the broadcast was in breach of standards R2 and

R5. It notes the safeguards now in operation at Xtreme 100. However, whether or

not the call was pre-recorded on 31 July, standard R5 was contravened. The

requirements of standard R2 refer to the standards of the broadcast, and not the

attitude of the broadcaster. The standards imposed by R2 were not achieved in the

dedication which was broadcast on 31 July.

For the above reasons, the Authority upholds the complaints that the broadcast

by H B Media Group Ltd on Xtreme 100, of a dedication at about 9.45pm on 31

July 1997, breached s.4(1)(c) of the Broadcasting Act 1989, and standards R2 and

R5 of the Radio Code of Broadcasting Practice.

Having upheld a complaint, the Authority may impose orders under s.13(1) and

s.16(4) of the Broadcasting Act 1989. Because of the vulnerability of the young

woman who was abused, the Authority considers the breach to be a serious one. It

believes that broadcasters which target a youth audience must be aware of their

immaturity and need to take special care to protect both victims and perpetrators

from the consequences of rash and immature acts. In view of the hurtful remarks

contained in the broadcast, the broadcaster is ordered to pay compensation of $250 to

the complainant's daughter.

The broadcast was on an open line programme for which, under the Radio Code,

broadcasters are required to retain tapes for a period of 35 days. This complaint

involves a breach of two standards. The Authority also bears in mind the absence of a

tape when it requires the broadcaster to pay costs of $250 to the Crown.

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, H B Media Group Ltd, as

broadcasters of Xtreme 100, is ordered to pay compensation to Mrs B's daughter

in the sum of $250.

Pursuant to s.16(4) of the Act, the broadcaster is ordered to pay costs to the

Crown in the sum of $250.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
13 November 1997

Appendix

Mrs B's Complaint to the Broadcasting Standards Authority – 12 August 1997

Mrs B of Napier complained to the Broadcasting Standards Authority on behalf of her

17 year-old daughter about a breach of the privacy standard committed by the

broadcaster Xtreme 100FM of Hastings at about 9.45pm on 31 July 1997.

Explaining that a music request show was broadcast at the time, Mrs B said a request

referred to her daughter in the following way:

This is for C...B..., who's in the 6th form at ... . You're a bitch, everyone hates

you and you have no friends.

Mrs B stated that she had spoken to the announcer on 1 August who had said that

because he had been "flat out", the caller had been put straight to air. He apologised

but said that there was nothing else that he could do. Mrs B argued that it was both a

breach of privacy and the standard of good taste, adding that her daughter's friends

had also heard the comments.

Xtreme 100FM's Response to the Authority – 21 August 1997

The announcer on the evening of 31 July (Jason Reeves) wrote to the Authority

expressing "sincere and unreserved apologies" for the broadcast.

Noting that he had been hosting night-time radio for three years, the announcer said

that, in a busy moment, he had broken his policy of pre-recording all phone calls to

ensure that offensive material was not broadcast. When Mrs B telephoned the

following evening and expressed concern because of the taunts her daughter had

experienced, the announcer said that he had explained what had occurred and offered

his apologies. She had, he added, accepted the apologies and because she did not

know what else she could do, he had given her his supervisor's telephone number.

The announcer enclosed a fax for a request which contained the sort of material

received which was not put on air and, he concluded:

Again, please accept this as my unreserved apology for a momentary lapse in

my procedure that has had more than unfortunate consequences.

Mrs B's Comment to the Authority – 25 August 1997

On Mrs B's behalf, a teacher at the school C B attended, contested two aspects of the

reply. First, she said that she had been told by two people involved with the call that

the message did not go out live. Secondly, the teacher believed that as a broadcaster

was obliged to hold a tape recording of all open line programmes for 35 days, a tape of

the item should be available.

In a letter to the Authority received on 1 September, Mrs B referred to the station's

claim that the broadcast was live and stated that the girl who lodged the request had

said that the message was pre-recorded. Further, the station manager had advised her

that tapes were kept for one month.

Mrs B repeated her complaint that the broadcast breached her daughter's privacy and

was unfair and in bad taste.

H B Media Group Ltd's Response to Mrs B on the Standards Complaint –

4 September 1997

The Group's Managing Director, Richard Lay, informed Mrs B that the station did

not keep tapes of broadcasts. He said, as the announcer had advised, that the

broadcast was live. As for the good taste aspect of the complaint, he wrote:

The call was taken in good faith, and that faith was abused by another school

girl. Jason Reeves has always been decent and treated his callers with respect,

as well as controlling the level of behaviour for his younger audience. I believe

some parents should be more in control of what their minors are up to.

Referring to the fairness aspect, Mr Lay stated that every caller was now recorded

and, furthermore, he intended to speak to the school to explain that Xtreme 100FM

was a fun music station, and not a platform for verbal hatred. He concluded:

Once again I would like to apologise, and I hope the people involved have now

resolved their issues, and regret what they have done.

Mrs B's Response – 10 September 1997

On Mrs B's behalf, the teacher stated that the caller and her friend had told her (the

teacher) that they had listened to the message after they phoned it in. The teacher

said:

They were both very clear about this, and I challenge the aspersion cast on the

students' credibility.

Mrs B's Referral to the Broadcasting Standards Authority – Received 17

September 1997

Dissatisfied with the broadcaster's response to the standards complaint, Mrs B

referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

On the basis of what the girl who made the request had said, she believed that the

request was pre-recorded. She also enclosed a letter to her from Mr Lay, as Managing

Director, dated 29 August, in which he wrote:

Further to our conversation of yesterday I would like to apologise to you and

your daughter for any grief the incident may have caused you. As I have said

previously, I sincerely regret this incident, as does the announcer involved,

Jason Reeves. We have now put in place strict policies for the recording of

telephone calls to prevent this happening again. I would also like to express my

regret that young people choose to use our business as a vehicle for their

opinions, we are a radio station in operation to play music and advertising, the

option we give our listeners to contribute has been abused and we have taken it

very seriously.