BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

APNA 990 broadcast a segment disclosing that a named company allegedly owed it money and asking for the director of that company to 'contact us [as soon as possible] to sort out the account'. The Authority upheld the complaint that the broadcast breached the privacy of the company director because a debt is a private matter between the debtor and the person or company to whom the debt is owed. The disclosure was highly offensive as the complainant could reasonably expect the debt to remain private, and there was no public interest in disclosing it to the public at large.

Upheld: Privacy

Orders: Section 13(1)(d) $1,000 compensation to the complainant for breach of privacy; Section 16(4) $1,000 costs to the Crown

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Introduction

[1]  During a segment on APNA 990, comments were made about a company that allegedly owed the radio station money, which have been transcribed in English as follows:

[Company name] owes money to Radio APNA 990. The company signed a contract in 2011 for which the payment is long due now. If any families of this business is [sic] listening to Radio APNA then please convey the message to the director to contact us [as soon as possible] to sort out the account. We can arrange an option to settle the account.

[2]  VR, the director of the company, complained that the broadcast breached his privacy.

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

[4]  The comments were broadcast on 7 March 2014. The members of the Authority have read a transcript of the item (as it was broadcast in Hindi), and have read the correspondence listed in the Appendix.

Preliminary issue

[5]  In response to the complaint, the broadcaster maintained that it had previously 'spoken to [Authority staff] regarding this segment... and we were told it may not likely breach any of the standards of [the] Broadcasting Code'.

[6]  APNA was not advised by the Authority that the segment was unlikely to breach broadcasting standards. Written correspondence from 2011 shows the broadcaster was informed that the Authority was unable to 'pre-vet the programme to tell you whether or not it would breach standards'. The Authority indicated that, 'Ultimately it is an editorial decision for APNA to make, with regard to the Radio Code' and advised APNA to contact a lawyer for further advice. It is the responsibility of broadcasters to familiarise themselves with the Codes and to ensure programmes adhere to the requirements of the standards.

Was the complainant's privacy breached?

[7]  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. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[8]  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 The privacy standard only applies to individuals and the question here is whether the complainant was identifiable through the reference to his company. We think that he was. The complainant is the sole director of the company and he was identifiable to anyone who knew that he owned this company, which was likely within a tight-knit Indian community. Not all of these people would have been aware of the fact his company was allegedly indebted to APNA.

[9]  Privacy principle 1 of the Authority's privacy principles has the widest application to alleged breaches of privacy. 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]  The issue is whether the alleged debt owed by the complainant's company to the broadcaster was a 'private fact'. A 'private fact', for the purposes of privacy principle 1, is information which a person would reasonably expect to remain private.²

[11]  The complainant argued that announcing his company's name and alleged unpaid account on air breached his privacy. He explained that he had not paid the account because his advertisement had allegedly not been broadcast on APNA 990.

[12]  The broadcaster said the complainant was not named and no personal information was disclosed that 'could be potentially prejudicial to the parties'. It asserted that names of businesses were 'already public given that most of the company details are readily available and accessible online through various sites and [the] companies office'.

[13]  We are satisfied that the disclosure of a contractual debt between two individuals (who may represent respective companies) is a private fact. While the Companies Office register lists details about specific companies including the company address and directors, it does not list debts owed by or to those companies. This information is private between the debtor and the person or company to whom the debt is owed, which is consistent with previous decisions of this Authority.³ There is an expectation that the details of one's financial affairs, including debts, will not be broadcast to a national audience.

[14]  The next question is whether the disclosure of the alleged debt owing to APNA would be considered highly offensive to an objective reasonable person in the complainant's shoes. We find that it would. We acknowledge the broadcaster's contention that, 'We mean no harm to any businesses nor [is] this an attempt to ridicule... [but] it is our attempt in getting [them] to contact us after our other strategies of getting hold of them becomes futile'. However, an apparent lack of intention to cause harm does not mean that actual harm will not result. It is our view that the facts disclosed were highly offensive and objectionable to a reasonable person as this was a private matter between the complainant and the broadcaster, and there was no public interest in the disclosure.

[15]  We consider that the actions of APNA in using the airwaves to call on a private business debt amounted to an inappropriate use of airtime. The right to broadcast carries with it privileges and responsibilities, including reasonable consideration of anyone who might be affected by a broadcast. We think that the broadcaster abused this privilege and overlooked its responsibility to maintain standards and to preserve VR's right to privacy.

[16]  Accordingly, we uphold the complaint that Standard 3 was breached.

Name Suppression

[17]  As we have upheld the complaint that the company director's privacy was breached and private facts were disclosed, we find it appropriate to suppress VR's details in the decision.

For the above reasons the Authority upholds the complaint that the broadcast by APNA Networks Ltd of an item on 7 March 2014 breached Standard 3 of the Radio Code of Broadcasting Practice.

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

Submissions on provisional decision and orders

[19]  APNA argued that it 'had no intention to breach any standards or cause stress to any persons' but rather wanted to 'get the address and whereabouts of the person concerned'. It considered it had been 'forced' to broadcast the item because it had exhausted all other avenues to collect the debt. It argued that its broadcast was akin to a 'missing person' appeal and that it did not reveal any private facts. It claimed that the complainant was attempting to use the BSA process to avoid paying his debt, and said 'it would be unfair to see the BSA issuing a judgment which would enable the client to escape its dues with the company'. It assured the Authority that it would broadcast an apology 'if in any way [the broadcast] has harmed/hurt the complainant', but did not consider this to be the case.

[20]  The complainant argued that he was never 'evasive' towards APNA and that he had taken steps to resolve the debt dispute with APNA before they broadcast the item. He considered APNA's actions amounted to 'blackmail' and it should be 'punished as per law'.

Authority's decision on orders

[21]  Having upheld the privacy complaint, we consider it warranted to compensate the complainant for the breach of his privacy. In all the circumstances, and taking into account previous privacy cases, we have reached the view that an award of $1,000 compensation is appropriate.

[22]  While recognising APNA's assurance it would broadcast an apology if ordered to do so, a broadcast statement or apology is inappropriate as it would only serve to re-broadcast the material which breached the complainant's privacy and compound the damage caused to him.

[23]  Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. APNA's submissions suggest it does not fully understand the privacy standard or why the broadcast of personal debt information was inappropriate and contravened the privacy principles. In our view APNA's misuse of airtime and subsequent insistence that this was justified amounts to a serious departure from broadcasting standards. In all the circumstances, we find that an order of costs to the Crown in the amount of $1,000 is appropriate.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(d) of the Act, the Authority orders APNA Networks Ltd to pay to the complainant costs in the amount of $1,000 within one month of the date of this decision, by way of compensation for the breach of his privacy.
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.
2. Pursuant to section 16(4) of the Act, the Authority orders APNA Networks Ltd to pay to the Crown costs in the amount of $1,000 within one month of the date of this decision.

This order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 April 2015

Appendix

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

1      VR's direct privacy complaint – 22 March 2014
2      APNA's response to the complaint – 13 May 2014
3      VR's response to the Authority – 21 May 2014
4      APNA's response to the Authority (including transcript) – 25 November 2014
5      APNA's submissions on the provisional decision and orders – 19 February 2015
6      VR's submissions on the provisional decision and orders – 23 February 2015

¹ See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

²Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)

³ M and TV3 Network Services Ltd, Decision No. 2000-132, Radfords and Television New Zealand Ltd, Decision No. 2003-017