BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

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

The complainant made a direct privacy complaint about a discussion on Chinese Voice Radio, alleging that it breached her child’s privacy because it disclosed details of her dental treatment. The Authority found that the broadcast did not breach any individual’s privacy, as no one was identifiable in the broadcast. The complainant’s concerns about the dentist’s actions and the disclosure of details about the treatment were more appropriately dealt with by other agencies.

Not Upheld: Privacy

---

Introduction

[1]  During NZ Life, a talkback programme on Chinese Voice Radio 99.4FM, the hosts discussed allegations made by a caller about a dentist who treated her child. The programme subject to complaint was broadcast on 13 February 2014.

[2]  CK, the caller, made a direct privacy complaint to this Authority, alleging that the broadcast breached her child’s privacy.

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

[4]  The members of the Authority have read transcripts of the relevant broadcasts and the correspondence listed in the Appendix.

Background

[5]  The comments made by the hosts in the 13 February broadcast, which is the subject of this complaint, related to a discussion on the same programme a few days earlier on 10 February. In the earlier discussion, the hosts relayed the caller’s story about taking her young daughter to the dentist to have her tooth extracted, and the dentist’s alleged unprofessional behaviour. The caller had contacted the radio station to have her story made public, provided that no one, and particularly her daughter, was identified. The allegations were that the dentist did not allow the complainant to accompany her daughter in the operating room, did not wear a mask, pinched her daughter and told her to swallow blood following the tooth extraction.

[6]  In the 13 February broadcast, one of the hosts said that he had since visited the dentist concerned where he had viewed a recording of the consultation and operation involving the complainant’s daughter. The host described the content of the recording and expressed his view that the dentist had acted appropriately. No person was named or otherwise identified in either broadcast.

Scope of complaint

[7]  CK made a direct privacy complaint to this Authority, as permitted by the Broadcasting Act 1989. In her final comment, she sought to raise other standards in addition to privacy, saying that her concern was that the host misled the audience by providing ‘untrue information about my daughter’s experience during the dental treatment’. She referred to the controversial issues, accuracy, fairness, and responsible programming standards.

[8]  Only privacy complaints can be made directly to this Authority; complaints under other standards must be directed to the broadcaster in the first instance. As the complainant did not lodge a separate complaint with the broadcaster raising additional standards within 20 working days of the broadcast, we have no jurisdiction to consider those standards now. Accordingly, we limit our determination to whether the privacy standard was breached.

Did the broadcast breach any individual’s privacy?

[9]  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.

[10]  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

[11]  The complainant maintained that lots of people had contacted her as a result of the broadcast, questioning her about her daughter’s version of events. She referred to privacy principle 6 of the Authority’s Privacy Principles, which states:

Children’s vulnerability must be a prime concern to broadcasters, even when informed consent has been obtained. Where a broadcast breaches a child’s privacy, broadcasters shall satisfy themselves that the broadcast is in the child’s best interests, regardless of whether consent has been obtained.

[12]  World TV argued that the hosts did not mention any names or otherwise identify anyone in the broadcast complained about or in the earlier broadcast. The objective of the programme was to alert listeners that ‘they needed to be careful when having tooth extraction’, it said.

[13]  While children’s vulnerability must be a prime concern to broadcasters, we agree with the broadcaster that in this case no one was named or otherwise identified in the broadcast subject to complaint (or the earlier broadcast) to enable identification of the complainant’s daughter, or any other person referred to. The hosts were careful not to disclose names and in fact they explicitly stated a number of times that they were conscious of protecting the identities of everyone involved. While some people may have identified the complainant’s daughter from the information broadcast, causing them to question CK about the host’s comments, these people were most likely limited to her family and close friends who already knew about the incident.

[14]  Accordingly, we find that no individuals – including the complainant’s daughter – were identifiable in the broadcast as required by the privacy standard, and we decline to uphold the complaint.

Final comments

[15]  In our view, the complainant’s concerns about the dentist’s alleged actions at the time of the operation and his subsequent use of the recording are not matters of broadcasting standards, and more appropriately dealt with through other avenues. We note that she has lodged complaints with the Health and Disability Commissioner and the Dental Council in regard to the treatment of her daughter, and with the Privacy Commissioner in regard to the use of the recording. These are the appropriate agencies to deal with these matters.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
17 June 2014

Appendix

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

1                  CK’s direct privacy complaint – 18 February 2014

2                 Further comments from CK – 20, 23 February 2014

3                 World TV’s response to the complaint (including attachment) – 10 March 2014

4                 CK’s final comment (including attachments) – 20 March 2014

5                 World TV’s final comment – 21 March 2014

6                 Further comment from CK – 14 April 2014

7                 Transcripts of broadcasts

See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]