BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

Hosts and a guest on the Otago student radio station, Radio One, made comments about a well-known Dunedin resident, including that he had been in a psychiatric hospital, and that his parents locked him up as a child because he was slow and an embarrassment to them. The Authority upheld the complaint that this breached the man’s privacy. The information disclosed had the quality of private information whether or not it was true. It was sensitive in nature and attracted a reasonable expectation of privacy. The broadcaster accepted that the comments were unacceptable and in poor taste, so the Authority did not make any order, but encouraged Radio One to take remedial steps as it saw fit.

Upheld: Privacy

No Order

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Introduction

[1]  During a programme on Radio One 91FM, the University of Otago student radio station, the hosts and a guest made comments about a well-known Dunedin resident who goes by the nickname [X], as follows:

Host 1:  I was just getting distracted because [X] the hobo was trying to cross the road outside
            our studio
…

Host 2:  Does everyone know [X]? How well is [X] known?

Guest:   He is pretty renowned in Dunedin. I actually know the real story.

Host 1:   Do tell.

Guest:   His [real] name is [first name]. He used to be at [named psychiatric hospital] – my aunt
            used to look after him. He was slow as a child and his parents were embarrassed and
            locked him in a room from when he was like three to when he was like nine… it’s really
            sad… Then the government shut down all of the asylums and they just put them out into
            the community, and so he just cruises… but then he discovered the booze and that
            didn’t really help.

[2]  The programme was broadcast on the afternoon of 25 October 2013.

[3]  Carla Hill made a direct privacy complaint to this Authority, alleging that the broadcast of false information and private facts about X without his consent breached his privacy.

[4]  The issue is whether the broadcast breached the privacy standard, as set out in the Radio Code of Broadcasting Practice.

[5]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach X’s privacy?

[6]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[7]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.¹

[8]  The broadcast disclosed X’s nickname and that he is homeless. His alleged real first name was also given. As X is apparently well-known in Dunedin we are satisfied that this information made him identifiable for the purposes of the standard.

[9]  The next issue is whether the broadcast breached any of the Authority’s Privacy Principles.² Privacy principle 1 has the widest application to alleged breaches of privacy, and is the most relevant to this complaint. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[10]  Private facts are usually things which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.³ The broadcast disclosed the following claims about X:

• his real first name
• he spent time at a named psychiatric hospital
• he was slow as a child
• his parents locked him in a room for many years because he was an embarrassment to them.

[11]  In our view, this information, and particularly the linking of X’s real name and sensitive information about his background, is information in respect of which any person in his position would have a reasonable expectation of privacy.

[12]  The complainant indicated that some of these claims were untrue. This raises the issue of whether false information can constitute ‘private facts’ as envisaged by privacy principle 1. For the reasons expressed below, we consider that it is the quality of the information about a person which determines whether or not it is private, and not the veracity of the information.

[13]  While the Authority has not previously considered whether a false statement can be a ‘private fact’, it has determined that an ‘untrue implication’ does not amount to a ‘private fact’.⁴ An implication (for example broadcasting pictures of persons alongside stories they are not involved in) is different, in our view, from broadcasting an untrue statement. An untrue statement directly linking information to a person is more likely to be taken by the audience as truth, and the potential harm to the person referred to is greater than the harm flowing from a misleading implication, which by its nature is uncertain and requires an inference to be drawn by the audience.

[14]  The courts in New Zealand and overseas have found that false information is capable of being private and confidential, and we take this as guidance in assessing the scope of the protection afforded by the privacy standard. In P v D & Independent News Auckland Ltd, the New Zealand High Court said that whether or not information is true or false ‘does not rob it of the quality of being information’.⁵ In McKennitt v Ash, an English court said that the defendant could not deprive the claimant of his right to privacy by demonstrating that the information was untrue, provided the information was such as to attract the law of breach of confidence.⁶

[15]  It is therefore unnecessary for us to distinguish between the claims made about X in terms of their truthfulness or otherwise. Suffice it to say the broadcast disclosed information having the quality of private information, in respect of which a reasonable expectation of privacy existed.

[16]  Having found that the broadcast disclosed private information about X, the next issue is whether the disclosure would be considered highly offensive to an objective reasonable person, in X’s shoes.⁷ Given the sensitive nature of the information revealed, we are satisfied that the highly offensive test is met.

[17]  For these reasons, we uphold the complaint that the broadcast breached X’s privacy.

For the above reasons the Authority upholds the complaint that the broadcast by Radio One of comments on Radio One 91FM breached Standard 3 of the Radio Code of Broadcasting Practice.

[18]  Having upheld the privacy complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion.

[19]  Radio One acknowledged that the comments were inappropriate and said the hosts had been informed of the complaint and spoken to about allowing the conversation to unfold as it did. The broadcaster in its decision said, ‘While [X] is a publicly recognisable person in Dunedin and no doubt is subject to much unsubstantiated commentary and opinion, we believe he was disrespected by the guest who made the comments. As such, we have no inclination to defend what we believe to be comments made in poor taste’. Radio One offered to apologise to the complainant and X, and said it was prepared to accept any ruling by the Authority and to take any remedial steps imposed.

[20]  This decision provides guidance in terms of our expectations around the disclosure of this kind of information. We encourage Radio One to take such steps as it sees fit, such as offering a personal apology to those affected by the broadcast. Given that the broadcaster has accepted the inappropriateness of the comments and has offered to take remedial steps, we find that on this occasion no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
4 March 2014

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1                  Carla Hill’s direct privacy complaint to the Authority – 25 October 2013

2                 Radio One’s response to the Authority – 27 November 2013

²See Appendix 1 of the Radio Code.

³Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, 2011)

⁴See Harris and CanWest TVWorks Ltd, Decision No. 2005-049; Sumich and Penney and CanWest TVWorks Ltd, Decision No. 2006-078.

⁵P v D & Independent News Auckland Ltd [2000] 2 NZLR 591

⁶McKennitt v Ash [2006] EMLR 178 [78]

⁷See Andrews v Television New Zealand Ltd PDF (134.21 KB) CIV 2004-404-3536 per Allan J at paragraph 48.