BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The first name and the address (on two occasions) of a man seen kicking a dog on the

street were given by a caller to Newstalk ZB at about 10.50am on Friday 10 February

1995. In an item broadcast at about the same time on 16 February, RNZ explained

that the earlier programme, by giving the address, had breached the station's privacy

policy and apologised to the people at the address named.

Mrs B, as the occupier of the address which was broadcast, complained directly to the

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

the broadcast breached her husband's and her privacy. She also complained to Radio

New Zealand Ltd that the broadcast breached a number of standards, including the

ones requiring that people referred to be dealt with fairly and that standards of good

taste and decency be maintained.

Explaining to the Authority that the broadcast did not breach the privacy requirement

in the Broadcasting Act, and to Mrs B that the standards had not been breached,

principally because her husband had not been identified, RNZ declined to uphold the

complaints. Dissatisfied with RNZ's decision on the complaint alleging a breach of

standards, Mrs B referred it to the BSA under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upheld the complaints that the broadcast invaded

Mr and Mrs Bs' privacy and that RNZ had not dealt with her fairly.

Decision

The members of the Authority have listened to a tape of the broadcasts on 10 and 16

February and have read the correspondence (summarised in the Appendices) which

includes a transcript of the 16 February broadcast. As is its practice, the Authority

has determined the complaints without a formal hearing.

Mr B's effort to discipline his dog on the street across from his home was considered

by a neighbour to amount to animal abuse. She apparently expressed that opinion to

the SPCA, the Police, on Radio Pacific and on Newstalk ZB. Mrs B complained to

Radio Pacific and to RNZ that broadcasting the neighbour's call, which included the

Bs' address, was a breach of privacy and a number of other broadcasting standards.

Radio Pacific has been unable to trace the call and the complaint against it has been

withdrawn.

At the Authority's request, RNZ considered the complaint about the alleged breach of

privacy (made under standard R11 of the Radio Code of Broadcasting Practice) as a

complaint under s.4(1)(c) of the Broadcasting Act which requires broadcasters to

maintain standards consistent with the privacy of the individual. In an additional

complaint to RNZ, Mrs B argued that standards R12 and R13 of the Code had been

transgressed. In view of the allegations contained in the complaint, RNZ also assessed

that complaint under standards R2 and R5.

Privacy

As Mrs B adopted the procedure which allows a complainant to complain directly to

the Authority in regard to a privacy complaint, the Authority dealt with this matter

first. An allegation that a broadcast breached an individual's privacy is the only

complaint which may be made directly to the Authority. All other complaints must

be made first to the broadcaster.

With regard to the privacy complaint, Mrs B reported that when she discovered that

the neighbour had telephoned Newstalk ZB about her husband's actions, she had also

called and had been told that their address had been given on air. She said as well that

the broadcaster had admitted in a later broadcast that it had been wrong to broadcast

that information, and she had been sent a tape of the broadcast and the apology. Mrs

B pointed out that the apology referred to the broadcast of the address – not about the

incorrect information given by the neighbour, or the abuse about animal abusers

directed at her husband by both the caller and the talkback host. In her letter of

complaint to the Authority, Mrs B concluded:

We are very distressed that such a one-sided and false accusation of cruelty to

our pet was made so public. Ron Sneddon from Newstalk ZB has been

extremely rude to me during the various phone contacts, as he feels that he has

taken sufficient action. I was not allowed to speak on air to Newstalk ZB to

defend my husband and put forward our side of the story.

In its report to the Authority on the privacy complaint, RNZ examined the complaint

under the five principles applied by the Authority when it determines complaints

which allege a breach of privacy. As for principle (i) (recorded below) which states

that private facts should not be disclosed, RNZ said that the (incorrect) first name and

the address of the person seen to be kicking a dog did not amount to the disclosure of

"highly offensive" private facts. Regardless of principle (i), it continued, principles

(iii) and (iv) (also recorded below) were applicable and they state that the report of an

event in a public place and the discussion of a matter in "the public interest" are

defences to an individual's claim to privacy.

Nevertheless, RNZ stated that it was concerned about aspects of the broadcast and:

... it sought to address the matter of concern, privacy, directly and rapidly with

its wider listening audience, through the on-air statement of 16 February. This

action was taken to reinforce the message that such information was

unacceptable in that potentially it could be used partially to identify and

individual.

RNZ concluded:

The Company believes this privacy complaint to be the resort of an individual

who has variously sought what she describes verbally and in writing to the

Company as "visible compensation", an apology and who has threatened legal

action. In the circumstances the station has taken the most appropriate steps to

resolve the issue.

In her response, Mrs B disputed aspects of RNZ's report and said that she had

sought a right of reply immediately and for RNZ to say now that she declined the

opportunity was "a blatant lie". She concluded:

All we wanted from Newstalk ZB or Radio New Zealand was a chance to put

our side on air (which is now of course impossible), a personal apology to my

husband and some sort of compensation ie a dinner for two or a bunch of

flowers. We said this to Mr Sneddon [of RNZ] who said he might do that if we

didn't go to the Broadcasting Standards Authority. But by that time he had

been so rude we wanted to write to you. Mr Hereford [of RNZ] also said he

would arrange some sort of small compensation. To date we have not even

received a reply from Radio NZ as to them breaching certain Programme

Standards.

As will be apparent, the two aspects of the complaint – privacy and standards –

overlap. The other matters raised will be considered in the next section. At this point

the Authority, is required to determine whether broadcasting the Bs' address and Mr

B's (incorrect) first name and his public actions amounted to a breach of privacy.

The relevant privacy principles state:  

i)    The protection of privacy includes legal protection against the public

      disclosure of private facts where the facts disclosed are highly offensive

      and objectionable to a reasonable person of ordinary sensibilities.

iii)   There is a separate ground for complaint, in addition to a complaint for the

      public disclosure of private and public facts, in factual situations involving

      the intentional interference (in the nature of prying), with an individual's

      interest in solitude or seclusion. This intrusion must be offensive to the

      ordinary person but an individual's interest in solitude or seclusion does

      not provide the basis for a privacy action for an individual to complain

      about being observed or followed or photographed in a public place.

iv)   Discussing the matter in the "public interest", defined as a legitimate

      concern to the public, is a defence to an individual's claim for privacy.

A person's address, in itself, cannot usually be described as a private fact. However,

its disclosure is a means of identifying a person. While not as strong a method of

identifying someone as a name, or better still, a name and an address, it allows the

person informed to establish the person's identity or, at least, to know where to find

the person. Mrs B said the address was sufficient identification for two people to

send them anonymous abusive letters.

The other requirement in principle (i) is the disclosure of "offensive" facts. While a

description of the public event witnessed, and a case against animal abusers in general

during a broadcast, would not endanger the privacy principles, the description of a

specific person as an animal abuser is one which would make the person of ordinary

sensibilities recoil.

On Newstalk ZB on 10 February, the information given about a specific event was

linked to an address and, as a result, identified the occupant at a named address as an

animal abuser. Whereas each piece of information in itself would not have

contravened the requirement for privacy, ie either a description of the event, or giving

the address in such a way as not to relate it to "highly offensive" facts, the Authority

concluded that the combination of these two items amounted to a breach of s.4(1)(c).

It did not accept that the information disclosed could be excused on public interest

grounds under principle (iv).

The Standards

As noted in the introduction, Mrs B alleged that the broadcast contravened standards

R12 and R13 and RNZ, in addition, assessed the complaint under standards R2 and

R5. 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.

            R12       To correct factual errors speedily and with similar prominence to the

                        offending broadcast or broadcasts.

            R13       To act responsibly and speedily in the event of a complaint and when an

                         accusation of unfairness is found to be correct, to provide appropriate

                         redress as early as possible after the original broadcast.

Mrs B alleged that the standards had been contravened as the caller had been

encouraged to repeat the address, that the item was incorrect factually and that RNZ's

process in dealing with the complaint was inadequate.

RNZ dealt with the complaint under each of the nominated standards. Under standard

R2, it argued that the person referred to was not identifiable and the language was

acceptable. The only factual error (to which standard R12 applied) was that the kick

aimed at the dog, in fact, through luck, missed its target. With regard to the process,

RNZ insisted that, taking into account the threat of legal proceedings, it had dealt with

the complainant responsibly and speedily.

With regard to the standard R5 aspect of the complaint, RNZ maintained that as no

member of the B family was identified, that the standard had not been contravened.

A considerable amount of the correspondence focuses on the interaction between

RNZ and Mrs B. Mrs B insisted that she had not been given a right of reply – an

early request – and described RNZ's claim that such a right was offered as a "lie".

RNZ stated that it had apologised to Mrs B, which she dismissed as "offhand and

insincere". She acknowledged that she had sought advice from a legal friend, but

maintained that should RNZ have expressed genuine regret "we would have dropped

the whole matter".

Although these matters could be regarded as a possible allegation in regard to standard

R13, they are matters which in the Authority's opinion are not relevant to the alleged

breach of the standards. It is apparent that there has been some misunderstanding

between Mrs B and RNZ, but it would now be difficult to determine exactly the cause

of the dissension. However, while RNZ might have acted cautiously because of a

perceived threat of legal proceedings, there is no evidence of any irresponsibility

which could justify a finding that standard R13 had been breached.

As well as not upholding the interaction between Mrs B and RNZ as a breach of

standard R13, the Authority accepted RNZ's submission that standards R2 and R12

were not contravened.

However, it disagreed with RNZ about standard R5. RNZ said that as no one had

been identified, no one could have been referred to unfairly. As the Authority stated

when it discussed the privacy complaint, it accepted that giving a person's address on

air could amount to identification. In this instance, the caller was asked to repeat the

address to ensure that it was broadcast clearly. In addition, a brief description of the

occupant was also given. In these circumstances, the Authority decided that sufficient

information had been given to identify the person referred to.

As the one-sided (and angry) description of an identified person's activities was

broadcast, in the Authority's opinion, the item amounted to a breach of the

requirement in standard R5 to deal with people referred to justly and fairly.

For the reasons given above, the Authority upholds the complaint that the

broadcast by Radio New Zealand Ltd of an item on Newstalk ZB at about

10.50am on 10 February breached s.4(1)(c) of the Broadcasting Act 1989 and

standard R5 of the Radio Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may impose an order under s13(1) of the

Broadcasting Act 1989.

The Authority accepts that a letter of sincere apology to the Bs from RNZ in

February, possibly accompanied by some flowers, could well have been sufficient

recompense. Indeed, it feels that a letter of apology could still well go some way to

reduce the antagonism felt by the Bs towards RNZ.

Moreover, despite not upholding any aspect of the complaint as a breach of

broadcasting standards, RNZ had earlier accepted that the broadcast of Bs' address

contravened its internal rules. As a result, it broadcast an "unreserved apology" for

broadcasting the Bs' address and it sent a tape of the broadcast to the Bs.

Understandably, the Bs remained dissatisfied as the apology did not encompass Mr

B's actions. A description of those actions, they felt, had been incorrectly and

inappropriately broadcast.

Although that action was taken following a breach of RNZ's on-air practices – not in

response to a breach of broadcasting standards – the Authority accepts that it was

sufficient action to redress both the breach of privacy and standard R5. Accordingly,

it does not intend to impose an Order.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
21 September 1995

Appendix I

Mrs B's Privacy Complaint to the Broadcasting Standards Authority –
7 March 1995

M B of Wellington complained to the Broadcasting Standards Authority that an item

broadcast by Radio New Zealand Ltd on 10 February breached the requirement in

s.4(1)(c) of the Broadcasting Act 1989 – repeated as standard R11 of the Radio Code

of Broadcasting Practice – which requires broadcasters to maintain standards

consistent with the privacy of the individual.

As background, she noted that on 4 February 1995 her husband had attempted to kick

their dog after it had nearly been run over outside their home. A woman witness had

abused her husband for kicking the dog and had accused him of being a wife-beater.

On 10 February, Mrs B had spoken to the witness who said that, in addition to

ringing the SPCA and the police, she had telephoned Radio Pacific and Newstalk ZB

and given the Bs' address across the air. (Radio Pacific were unable to find a recording

of the call on the days it was said to be made and the complaint against it has been

withdrawn.)

Mrs B said she telephoned Newstalk ZB on 10 February and was told that the woman

had called that morning and had given the address on air. RNZ, she added, admitted

that it had been wrong to do so and broadcast an apology. However, Mrs B

continued, the apology was "grossly inadequate" as the host had accepted the

accuracy of the caller's comments and had encouraged her to give the address on a

second occasion. She concluded:

We are very distressed that such a one-sided and false accusation of cruelty to

our pet was made so public. Ron Sneddon from Newstalk ZB has been

extremely rude to me during the various phone contacts, as he feels he has

taken sufficient action. I was not allowed to speak on air to Newstalk ZB to

defend my husband and put forward our side of the story.

RNZ's Response to the Authority – 16 April 1995

In its report to the Authority, RNZ provided the following information. It agreed that

at about 10.50am on 10 February, an announcer who hosted talkback on a casual basis

had not only allowed a caller to give the address of a person who was said to have

kicked a dog but had asked her to repeat it and has also expressed some strong

negative opinions about animal abusers.

On Monday 13 February, RNZ continued, Mrs B had spoken to Mr Ron Sneddon,

Manager of Newstalk ZB in Wellington, whose offer at the time of a right of reply was

declined. After investigating the complaint, on 16 February, Newstalk ZB twice

broadcast a statement setting out the station's policy to preclude the broadcast of

certain private information and a copy of the tape and a transcript were sent to Mrs

B.

Mrs B had continued to express her dissatisfaction and, in addition to complaining to

the Authority about a breach of privacy, she also complained to the broadcaster

alleging a contravention of some other broadcasting standards.

RNZ then proceeded to assess the privacy complaint against the five privacy

principles enunciated by the Authority. On the basis that the information disclosed

was not highly offensive to a reasonable person and that the event occurred in a public

place, RNZ maintained that a breach of the principles had not occurred. Moreover:

Further, it sought to address the matter of concern, privacy, directly and

rapidly with its wider listening audience, through the on-air statement of 16

February. This action was taken to reinforce the message that such

information was unacceptable in that potentially it could be used partially to

identify an individual.

The Company believes this privacy complaint to be the resort of an individual

who has variously sought what she described verbally and in writing to the

Company as "visible compensation", an apology and who has threatened legal

action. In the circumstances the station has taken the most appropriate steps

to resolve the issue.

RNZ enclosed copies of the correspondence between itself and Mrs B. It included a

transcript of the explanation of the broadcaster's privacy policy which apologised to

the "couple whose address was broadcast".

Mrs B's Final Comment – 1 May 1995

Mrs B responded in some detail to RNZ's report. She disagreed that the host was a

casual employee and she described the offer of an immediate right of reply on-air as "a

blatant lie". She added that when she first complained she had wanted a right of reply

to counter the untrue account that had been given.

The apology which was broadcast, she added, was insufficient as it did not apologise

for the contents of the call. She repeated her complaint that the call breached a

number of broadcasting standards but that RNZ had not responded to that matter.

As for the privacy complaint, she pointed out that RNZ did not know that her

husband's first name had been given incorrectly and argued that the information

disclosed was highly offensive. Mrs B expressed surprise that the host had allowed

Newstalk ZB's privacy rules to be broken.

With regard to the incident when the dog was allegedly kicked she said she had also

telephoned the SPCA and the witness's account of the event contained in her

telephone call to Newstalk ZB – a week after the event – was grossly exaggerated. She

concluded:

We feel that such a one-sided version of the story that gives an address cannot

be in the public interest. When I first rang Newstalk ZB on Friday 10th at

about 12 midday the producer said to me that if she had known what the

woman was going to say she would not have let the call go ahead.

All we wanted from Newstalk ZB or Radio New Zealand was a chance to put

our side on air (which is now of course impossible), a personal apology to my

husband and some sort of compensation ie a dinner for two or a bunch of

flowers. We said this to Mr Sneddon who said he might do that if we didn't

go to the Broadcasting Standards Authority. But by that time he had been so

rude we wanted to write to you. Mr Hereford [of RNZ] also said he would

arrange some sort of small compensation. To date we have not even received a

reply from Radio NZ as to them breaching certain Programme Standards.

RNZ's Response to the Complainant's Final Comment – 4 May 1995

A copy of Mrs B's final comment to the Authority was sent to the broadcaster and,

in its reply, RNZ advised that the talkback host who accepted the call was a casual

announcer and a relative newcomer. It insisted that Mrs B was offered an immediate

right of reply and that the Manager of Newstalk ZB twice apologised directly to Mrs

B. RNZ commented:

What Mrs B fails to recognise is that we have been somewhat constrained by

her threat of legal action. She will claim, as she has already, that she didn't

threaten this at all. But I have a file note handwritten by Richard Hereford

which says "that they (the B's) were taking legal advice with a defamation suit

in mind". Their first correspondence with the Company warned of "a problem

of monumental proportions". With Mr Hereford's vast experience in these

matters I have no doubt the threat was made. Any delays that she perceives in

our responding would have occurred because of the threat of legal action. Such

threats mean we take a different approach to our responses, including

wherever necessary seeking our own legal advise.

Mrs B's Second Final Comment – 1 June 1995

In her letter referring to RNZ's response on the standards complaint to the Authority,

Mrs B referred again to the privacy issue. Her address was published and repeated

and her husband was identified as the male occupant of that address. He was

described as a big person and his first name was given (incorrectly). As a result of the

broadcast, they received two hate letters. The breach of privacy, she maintained, was

RNZ's most serious breach.

Appendix II

Mrs B's Standards Complaint to Radio New Zealand Ltd – 6 March 1995

M B of Wellington complained to Radio New Zealand Ltd that an item broadcast on

Newstalk ZB at about 10.50am on 10 February 1995 breached standards R12 and R13

of the Radio Code of Broadcasting Practice.

The broadcast which gave rise to the complaint is explained in Appendix I under the

heading Mrs B's Privacy Complaint to the Broadcasting Standards Authority.

RNZ's Response to the Formal Complaint – 15 May 1995

In its report to Mrs B, RNZ pointed out that the call broadcast on 10 February came

from a member of the public, not a professional journalist. It then assessed the

complaint under the following standards (adding two to those nominated by Mrs B):

Standard R2:    As none of the language used on air was unacceptable and as the person

referred to was not identified, RNZ declined to uphold the complaint under this

heading.

Standard R5:    As no identifiable member of the B family was referred to, RNZ did

not accept that standard R5 had been breached. RNZ added that the caller had used an

incorrect first name which added weight to its contention that a member of the B

family was not identified.

Standard R12:  Taking into account the correspondence, only one matter could be

considered to amount to a factual error. That was whether the kick aimed at the dog

"connected". As Mrs B accepted that the kick missed through luck, RNZ considered

that standard R12 had not been contravened.

Standard R13:  RNZ maintained that it had dealt with Mrs B responsibly and

speedily. The Bs had not taken up the offer to broadcast a correcting statement which

would have corrected only the name given – Sean not Dave – and that his kick, which

was intended for the dog, had in fact missed.

Declining to uphold the complaint, RNZ concluded:

The Committee believes that the broadcast of such a statement could rightly be

considered less than helpful; explanation and apologies for any upset caused

by the broadcast was provided with minimum delay to Mrs B. These actions

were subsequently considered "inadequate" by the Bs who were also seeking

some form of "visible compensation". The Committee noted that a statement

by the complainant indicating the possibility of legal action terminated further

action or consideration by Newstalk ZB. In the circumstances the Committee

finds that that R13 was not breached.

Mrs B's Complaint to the Broadcasting Standards Authority – 1 June 1995

Dissatisfied with RNZ's response, Mrs B referred the complaint to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Referring to her response to RNZ's response to her privacy complaint (summarised in

Appendix I as Mrs B's Final Comment), she began:

I would first of all like to say that I stand by everything I said in my letter to

you dated 1 May. We were NOT given the right of reply over this incident

which we feel is one of the biggest faults of Radio NZ. They are now saying

that they did give us the right of reply but it is just not true. It comes down to

my word against Mr Sneddon's but besides a sincere apology the only other

thing we wanted was to put our side of the story on the air as fast as possible.

Mr Sneddon, she noted, had "thrown in" an offhand and insincere apology and offered

flowers of a similar gift "if I didn't take the matter further". Advice had been sought

from a legal friend but if someone at RNZ had expressed genuine regret "we would

have dropped the whole matter".

She then dealt with the specific standards.

Standard R2:    The standard was breached as the caller was given credibility and

encouraged to repeat the address. That was not, she wrote, in good taste.

Standard R5:    Her husband had been identified as the male occupier of the address

given and as they were not given a right of reply, he had not been dealt with fairly.

Standard R12:  Describing the caller as a "known stirrer", Mrs B accepted that her

husband acted out of panic and was in the wrong but the account given by the caller

was untrue and should have been corrected.

Standard R13:  Her husband was identified in a broadcast which gave incorrect facts

and, she added:

We also feel here the announcer's attitude was not helpful and he did

encourage the woman to use certain language and repeat our address and also it

was him who suggested that my husband may have been going to hit the

woman.

After dealing with the privacy aspect of the complaint (discussed in Appendix I), Mrs

B said they would like a sincere apology in writing from RNZ's senior staff and her

husband wanted a personal phone call of apology from the announcer.

RNZ's Response to the Authority – 11 August 1995

Apologising for the delay in responding caused by the current heavy work load, RNZ

maintained that the broadcast had not breached the Authority's privacy principles.

With regard to the principle dealing with the public disclosure of private facts, RNZ

wrote:

The incidents recounted by an eyewitness took place in public, observable and

observed from a public thorough-fare. No facts not in that category were

referred to.

RNZ then explained that its policy in the privacy area was more restrictive than the

Authority's and, as a result, it had broadcast an apology as the item had breached its

internal guidelines. Furthermore, all staff had been reminded that talkback broadcasts

were to exclude names and addresses.

Noting that it had nothing to add on the point, RNZ repeated that the broadcast had

not breached standard R2. Standard R5 had also not been breached, RNZ maintained,

as insufficient identifying particulars had been broadcast. RNZ also reiterated that the

item was not a news broadcast by a professional journalist and thus did not breach

standard R12.

As for standard R13, RNZ recorded the information gathered by the station when

reacting to the complaint. It said apologies were made by the station manager and

offers were made to Mrs B to make an on-air statement but they were declined. RNZ

denied that flowers were offered if Mrs B did not go to the Authority, adding:

To the contrary, Ms B was advised to approach the Authority, and encouraged

to consider alternatives such as a formal complaint to the Company. Mr

Sneddon feels strongly on this point, rightly noting that such an approach is

entirely out of keeping with the Company's normal approach to such matters,

and that he would consider publication of such an allegation by Mrs B an

actionable personal defamation.

RNZ's Mr Hereford acknowledged that a gift of flowers was raised in a telephone

discussion he had had with Mrs B. However, RNZ continued, it was understandable

that informed conciliatory gestures were suspended when legal action was threatened.

It concluded:

The Authority will appreciate that the Company is in a difficult position, for it

is unwilling to contradict a complainant so flatly. Nevertheless, it does not

appear unfair to cite what are matters of record and signed reports.

Mrs B's Final Comment – 5 September 1995

By telephone, Mrs B advised that she did not retract from any aspect of her

complaint. She had sought a right of reply early in the proceedings but it was offered

only after it had become irrelevant through the passage of time. Her husband, she

admitted, had been in the wrong when he tried to kick the dog but the broadcaster, she

maintained, breached the standards when the talkback host encouraged the caller to

abuse the family and had asked her to repeat the address.