BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

The George FM Breakfast show contained a discussion about the complainant’s use of the dating application Tinder, during which derogatory comments were made about him. The broadcaster upheld the complaint this was unfair. However, the Authority found that the action taken by the broadcaster was insufficient, as the apology broadcast by the show’s hosts was insufficiently specific or formal to effectively remedy the breach. The Authority ordered a broadcast statement including an apology to the complainant.

Upheld: Fairness (Action Taken)

Not Upheld: Privacy, Accuracy, Discrimination and Denigration, Responsible Programming

Order: Section 13(1)(a) broadcast statement including apology to the complainant

Introduction

[1]  The George FM Breakfast show contained a discussion about the complainant’s use of the dating application Tinder, during which derogatory comments were made about him. The host phoned the complainant without informing him that their conversation was on air. The content was broadcast between 7 and 8am on George FM on 7 May 2014.

[2]  Te Rama Durie complained to MediaWorks Radio Ltd (MediaWorks), alleging that he was unfairly identified, subjected to derogatory and untrue accusations, and not advised the telephone call was on air. He said, ‘The amount of flack I have been copping from colleagues, family and old friends is massive, as many of my circle of friends and acquaintances listen to the George FM Breakfast show’.

[3]  MediaWorks upheld the complaint that Mr Durie was treated unfairly and it apologised to him in its decision. It also broadcast an apology, delivered by the hosts, on 13 May. The broadcaster said it was confident the on-air apology was ‘appropriate and reasonable in relation to the offence that occurred’.   

[4]  Mr Durie referred his complaint to this Authority on the basis the action taken by the broadcaster, having upheld his fairness complaint, was inadequate. He also maintained that the broadcast breached his privacy, and was inaccurate, irresponsible, and discriminatory.

[5]  The issues therefore are whether the action taken by the broadcaster in regard to upholding the fairness complaint was sufficient, and whether the broadcast breached the privacy, accuracy, discrimination and denigration, and responsible programming standards, as set out in the Radio Code of Broadcasting Practice.

[6]  The members of the Authority have listened to recordings of the broadcast complained about as well as the apology, and have read the correspondence listed in the Appendix.

Was the action taken by the broadcaster in regard to upholding the fairness complaint sufficient?

[7]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[8]  The comments complained about began in a pre-recorded discussion between the host and his two female friends about the experiences one of them had with Tinder. The friend said she blocked ‘a guy’ from contacting her after he sent her to a restaurant that did not exist. The host asked what his name was. They repeated his first name several times and one of the friends referred to ‘naming and shaming’ him. The host stated, through bouts of laughter, ‘and alarm bells weren’t ringing… the dude’s name’s [mocking name]’. They laughed about the fact the complainant’s Tinder profile said ‘I love cuddling, and I love my mum’. Following the recording, the host said the story ‘should serve as a warning, so be careful out there’, and, ‘I mean what type of psycho sends someone to a restaurant that doesn’t exist and then doesn’t turn up... what a weird ego boost that is’.

[9]  Further comments were made about the complainant by a caller who alleged that he asked her ‘really inappropriate, creepy questions’ on Tinder, causing her to block him. The caller commented, ‘There are definitely weirdos out there’. The host warned listeners to ‘watch out for Te Rama’ in the Ponsonby, Auckland area, and said ‘a whole lot of girls have been texting through saying that they have had similar experiences with the guy’. The host noted that the man had been texting the station, and he called him to get his side of the story. Their conversation was broadcast on air without the complainant’s knowledge.

[10]  In our view, the comments made about Mr Durie amounted to a serious breach of the fairness standard. It was highly inappropriate for the host to single out the complainant and broadcast derogatory comments about him, in circumstances where he was identifiable by reference to his distinctive name and the inclusion of audio of his voice. The use of the complainant’s alleged actions as a topic for discussion persisted throughout the morning’s programme, and he was repeatedly referred to by his first name. While the complainant came across well in the phone call, which went some way to mitigating the harm to him, this does not excuse the broadcaster’s actions. We refer to the complainant’s comments about the negative impact of the broadcast:

My life and my personal dating circumstances were used (for cheap laughs, and to fill airtime). I feel that any person should have a right to live their life freely and happily – while not harming anyone else – without the threat of being singled out, have false accusations about them spread, their name bastardised, and be victimised on national radio.

[11]  We therefore agree with the broadcaster’s decision to uphold the complaint, and we emphasise our view that this was a serious departure from our fairness principles. Our task on this occasion is to determine whether the broadcaster acted sufficiently and appropriately once it upheld the complaint under the fairness standard, and specifically whether the apology broadcast the following week was adequate, given the nature of the breach.

[12]  The complainant argued that the action taken by the broadcaster, and specifically the on-air apology, was insufficient. He said he was ‘completely and utterly unhappy’ with the apology and with the fact he was not given more notice before it aired. In particular, he said the failure to name him made the apology ‘useless’, ‘weak’, ‘insincere and very vague, general and could be meant for anybody’. He argued that the apology should have recognised the accusations made against him were ‘unfounded’, and it should have been repeated over a few days. The complainant rejected the host’s contention in the apology that he thought his name was in fact a pseudonym.

[13]  MediaWorks outlined the events leading up to the apology, including the attempts made to contact the complainant to advise him of the apology and to seek his input. It considered the apology was ‘sincere and sufficient’ and it noted that broadcast apologies are generally reserved for more serious breaches. It said that Mr Durie was not named so as to minimise any further unwanted attention, and it did not consider the efficacy of the apology was reduced in this respect. The broadcaster stated, ‘considering the significant duration and content of the on-air apology, we are of the view that any listener who knew the complainant would have become aware that the broadcaster agreed he had been treated unfairly’.

[14]  The apology aired in the same timeslot five days after the initial broadcast due to problems making contact with the complainant (this was not the fault of the broadcaster). The hosts engaged in banter about how to pronounce a word, followed by the apology, as follows:

Host 1: Now we know this because we used to have a German intern who used to say “you’re saying it wrong”…      

Host 2: Everyone needs a German intern to help them on the straight and narrow, and speaking of which, we need to use this moment in time to offer a bit of an apology. We unfairly identified an individual in the last week or so and it was a bit of a mistake on our behalf and, well, we overstepped the mark. We shouldn’t have called him a creep or weirdo before getting his side of the story, and if you’re listening, mate, we are sorry about that, that was a stuff up on our behalf.

Host 1: And we shouldn’t have identified you by name.

Host 2: Yeah, that was a stuff up on my behalf. I actually thought the name was made up, I didn’t think that was your real name. I am actually really sorry about that. And we should have let you know that you were on air when we called you. Again, a mistake and we are sorry about that. It was never our intention to identify you in the piece. It was more talking about the perils of dating in Auckland.

Host 1: In the modern world in general… we are really sorry, mate.

Host 2: We are actually very sorry about that. [Followed by introduction to music track].

[15]  We appreciate that the content and tone of the apology and style of delivery were consistent with the usual manner of these hosts and content regularly broadcast on the George FM Breakfast show, and we think they were sincere in delivering the apology. However, given the gravity of the breach, in our view the apology fell short of being an adequate remedy. First, it did not have a formal introduction but instead was casually inserted between banter on a different topic and a music track. Second, the content of the apology was so vague that it could not possibly have achieved any meaningful remedy for the complainant and his reputation. While we accept the broadcaster’s reasons for not naming him, more specificity was required to at least link the apology to him, for example by reference to the Tinder discussion and/or the exact date of the broadcast. The flippancy of the host’s language also weakened the apology to some extent, and we think that more formal dialogue and treatment was required in order to recognise the seriousness of the breach.

[16]  There was some public interest in the subject matter of the broadcast and its warning about the pitfalls of using dating applications such as Tinder. However, we do not think there was sufficient value in focusing on one named individual whose actions were not particularly harmful. The segment’s objectives of humour and entertainment, although legitimate in some circumstances, did not in this case outweigh the real potential to cause harm to the individual named. We are therefore satisfied that upholding the action taken complaint is a justified limit on the broadcaster’s right to freedom of expression, given the nature of the breach and the broadcaster’s failure to properly address its impact on the complainant.

[17]  We therefore uphold the complaint that the action taken by MediaWorks in relation to the fairness complaint was insufficient.

Was the complainant’s privacy breached?

[18]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy 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.

[19]  Mr Durie argued that the broadcast revealed ‘private and damaging information about myself’ in a manner that was highly offensive. He said there is a ‘negative stigma surrounding the use of [Tinder], and for that reason it is largely kept as much a secret as possible’, and, ‘although the information on it is considered public, it is fair to say that nobody who uses it, wants the fact that they are a user of the application, to be aired to a huge part of their local population’. He said the broadcast had impacted negatively on his relationships and self-esteem.

[20]  The broadcaster agreed the complainant was identifiable because he was referred to by his first name which was unusual and his voice was broadcast. However, it did not consider that information relating to his Tinder profile or activity was private, noting that the application is accessible to thousands of users. Nor did it consider that another person’s comments and opinions of his behaviour were private or that the disclosure of this information would be considered highly offensive to an objective reasonable person, especially considering he explained himself on air.

[21]  The Authority’s Privacy Principles are set out in Appendix 1 to the Code. Privacy principle 1 is the most widely applied in privacy cases, and protects against the public disclosure of private facts. 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.²

[22]  The broadcast revealed the following information:

• the complainant uses Tinder
• information contained in his Tinder profile, namely, that it includes a photograph of him with his mum, and he describes himself as someone who ‘loves cuddling’, ‘loves his mum’, and treats women well
• he lives in the Ponsonby, Auckland area
• he was blocked by two women on Tinder because he sent one to a non-existent restaurant and stood her up, and he asked another ‘inappropriate and creepy’ questions; and
• ‘a whole lot of girls have been texting through [to the radio station] saying that they have had similar experiences with the guy’.

[23]  In our view, none of this information amounted to private facts, as envisaged by Standard 3. Tinder is a smartphone dating application which connects with users’ Facebook accounts, and uses their information including their profile pictures and interests, for other users to view. It employs location navigation services which enable users to swipe through the profiles of potential matches within their geographic area. As thousands of people use Tinder and anyone with a Facebook account can sign up, the contents of one’s profile are essentially public. In our view, where a person puts themselves out there by publishing private information in a public forum, it is no longer reasonable to assume that information is private. To find otherwise would be ignoring the reality that applications such as this are global information portals accessible to the public worldwide. Nor can users of such applications expect that their interaction with other users will remain private.

[24]  The broadcast also revealed the contents of the complainant’s telephone conversation with the host. Again, the issue is whether Mr Durie had a reasonable expectation that this conversation would remain private. We do not think that he did. The complainant sent a text message to the radio station in response to the accusations made by the women, and it was for this reason the hosts called him on his cell phone number, to give him an opportunity to explain himself. It was clear from the beginning of the call that he was expecting it and knew who he was talking to. The hosts reasonably believed he would have known he was on air and wanted to defend himself publicly. As a regular listener of George FM, the complainant should have known that he was engaging in a public forum when he sent a text message to the station without a specific request for confidentiality, and that his conversation with the hosts was likely to be used or reported in some way, even if he did not know he was on air at that time. Further, the complainant came across well, so we do not think the disclosure would be considered highly offensive. Nevertheless, we note that in terms of fairness the complainant ought to have been advised he was on air, and the broadcaster upheld this aspect of his fairness complaint.

[25]  As no private facts were disclosed in the broadcast, we decline to uphold the privacy complaint.

Did the broadcast breach the other standards raised in the complaint?

[26  As noted above, the complainant also referred his complaint under the accuracy, responsible programming, and discrimination and denigration standards. In summary, these are not applicable, or were not breached, because:

• George FM Breakfast is not a news, current affairs or factual programme to which the accuracy standard applies (Standard 5)
• the discrimination and denigration standard applies to sections of the community, not individuals (Standard 7)
• the complainant’s concern is harm to him personally, not harm to children or to the general audience, so the responsible programming standard is not relevant (Standard 8).

[27]  Accordingly, we decline to uphold the complaint that these standards were breached.

For the above reasons the Authority upholds the complaint that the action taken by MediaWorks Radio Ltd, having upheld a breach of Standard 6 of the Radio Code of Broadcasting Practice with respect to a segment on George FM Breakfast on 7 May 2014, was insufficient.

[28]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[29]  MediaWorks accepted the Authority’s decision to uphold the complaint on the basis the action taken was inadequate and specifically that the tone and structure of the apology required more formality. It offered to repeat the apology in the manner specified by the Authority, including naming the complainant if he wished. It maintained that no costs order was warranted, given that it upheld the fairness complaint and genuinely attempted to remedy the breach with an apology.

[30]  Mr Durie submitted that his name should be included in any apology ordered and he asked to be provided with a recording of the apology and to be advised of the intended broadcast at least 48 hours in advance. He specified what he considered the content of the apology should be. In addition, the complainant referred to the time taken to have his complaint determined and submitted that MediaWorks should be ordered to pay costs in order to send a ‘clear message to the broadcasters that this behaviour is absolutely unacceptable, and should never happen again’. He asked that any such costs go to charity.

Authority’s decision on orders

[31]  Given our findings, we consider a broadcast statement including an apology to Mr Durie for the unfair treatment of him, is appropriate. Our standard practice is for the wording of the statement to be drafted by the broadcaster and approved by the Authority, and for the statement to summarise the upheld aspects of our decision (rather than incorporating input from the complainant). We expect that the tone and placement of the apology will adequately recognise the seriousness of the breach and that Mr Durie will be referred to by name, in accordance with his wishes. The complainant will be advised by the Authority of the intended time and date of the broadcast and provided a copy of the final wording of the statement.

[32]  Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. While the breach of the fairness standard was serious, we have taken into account that MediaWorks upheld the complaint and attempted to remedy the breach by broadcasting an apology, albeit in a manner that we have found to be inadequate. We are satisfied that the broadcaster has demonstrated an understanding of why the decision was upheld, and has suggested steps to reinforce the relevant broadcasting standards requirements. We consider that this goes some way to mitigating the seriousness of the breach, and therefore find that an order of costs to the Crown is not warranted. In any case, we do not have the power under the Act to order costs to be paid to a charity.

Order

Pursuant to section 13(1)(a) of the Act, the Authority orders MediaWorks Radio Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during George FM Breakfast
• be broadcast at a time and date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• include an apology to the complainant for the unfair treatment of him.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair

3 December 2014

Appendix

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

1            Te Rama Durie’s formal complaint – 7 May 2014

2            MediaWorks’ response to the complaint – 14 May 2014

3            Mr Durie’s referral to Authority – 15 May 2014

4            MediaWorks’ response to the Authority – 12 June 2014

5            Mr Durie’s final comment – 26 June 2014

6            MediaWorks’ final comment – 11 July 2014

7            MediaWorks’ submissions on the provisional decision and orders – 1 October 2014

8            Mr Durie’s submissions on the provisional decision and orders – 29 October 2014

¹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

² Practice Note: Privacy as a Broadcasting Standard (Broadcasting Standards Authority, June 2010)