BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
Marcus Lush Breakfast Show – host disclosed the street address of the house where the television programme Outrageous Fortune was filmed – allegedly in breach of privacy

Findings
Principle 3 (privacy) – no “identifiable individual” – right to privacy attached to the individual not to the house – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   During the Marcus Lush Breakfast Show, broadcast on Radio Live on the morning of 11 February 2008, the radio host discussed the lack of famous film and television set locations in New Zealand that people can visit and pay homage to. He told viewers that he had received an email informing him of the street address of the house used as the fictional West family’s residence in the television programme Outrageous Fortune.

[2]   At approximately 8.20am, the host said on air:

...don’t know if anyone has told you but the Outrageous Fortune house is [street address, suburb]. Can we get that on Google Earth? [Suburb] South by the way.

Go along the... motorway, come off at [suburb] South turnoff, take the first street on your right. That’s [street name]...

So that’s where it is... [street address, suburb].

[3]   Later, at approximately 8.46am, the host discussed how he would pay for a tour which paid homage to Outrageous Fortune, which involved going “to the house in whatever road it is, I’m not allowed to say”. He said “it’s a distinctive looking house. They must have known that people were going to know where it was on the internet. And I’m sure if I could Google ‘Outrageous Fortune house address’ it would come up...”

Principles

[4]   Principle 3 of the Radio Code of Broadcasting Practice is relevant to the determination of this complaint. The complainant referred to privacy principle 4 in its original complaint; RadioWorks assessed the complaint with reference to privacy principles 1 and 4. These provide:

Principle 3 Privacy

In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.

Privacy Principles

1.     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.

4.    The protection of privacy includes the protection against the disclosure by the
       broadcaster, without consent, of the name and/or address and/or telephone number
       of an identifiable individual, in circumstances where the disclosure is highly offensive
       to an objective reasonable person.

Referral to the Authority

[5]   South Pacific Pictures Ltd (SPP), on behalf of the individual who lived at the property, referred a privacy complaint about the programme directly to the Authority, under section 8(1A) of the Broadcasting Act 1989.

[6]   SPP maintained that in the course of producing and promoting Outrageous Fortune, it has gone to great lengths:

...to ensure that neither the actual street address nor the actual location of  the property used as the West family house is disclosed to the public... to protect the privacy of the individual who lives at that property.

[7]   SPP concluded that the disclosure breached the requirement in the Radio Code that broadcasters maintain standards consistent with the privacy of the individual. It argued that, in particular, the broadcast amounted to a disclosure by a broadcaster, without consent, of the address of an individual (privacy principle 4).

Broadcaster’s Response to the Authority

[8]   RadioWorks argued that in all privacy complaints it must first be decided whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. RadioWorks maintained that Principle 3 did not apply because no individual was identified or identifiable as a result of the broadcast. It accepted that, given the street address of the “Outrageous Fortune house” was given on air, the address of the house was identified, but it said that no information was provided about ownership or occupation.

[9]   RadioWorks argued that, even if Principle 3 applied, no private facts were disclosed in a manner that was objectionable. It considered whether the programme disclosed private facts about, or relating to, the occupant of the house. RadioWorks argued that:

...the BSA accepts that, save for in exceptional circumstances, the disclosure of a name and/or an address does not usually amount to the disclosure of a private fact as such information can normally be obtained from records such as telephone directories and/or electoral roles.

[10]   RadioWorks considered that no exceptional circumstances existed in this case. It maintained that, even if the disclosure could be regarded as being of a private fact, the disclosure could not properly be described as being highly offensive to an objective reasonable person. The broadcaster concluded that the disclosure of the address of the “Outrageous Fortune house” did not breach privacy principle 1.

[11]   RadioWorks then considered whether privacy principle 4 applied. It noted that the principle prohibits broadcasters disclosing, without consent, “...the address... of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person”. RadioWorks asserted that the disclosure of the address of the house did not amount to the disclosure of the address of an identifiable individual. However, it argued that even if it did, the disclosure would not have been highly offensive to an objective reasonable person. It maintained that “there is nothing about the address that is offensive per se, nor were the circumstances of the disclosure offensive”.

[12]   RadioWorks noted SPP’s claim that it had gone to great lengths to protect the privacy of the individual who lived at the property. In response it said:

While these measures may be understandable precautions, presumably taken at the request of the occupant and/or the owner of the house, [RadioWorks] does not believe that they, or any private arrangement between SPP and the occupant and/or the owner of the house, are sufficient to support an expectation of/entitlement to privacy in this case.

[13]   RadioWorks agreed with Marcus Lush’s comment that, by allowing the house to be filmed, apparently for a reasonable fee (as ascertained from one of the callers during the broadcast), the occupant and owner of the property had:

... “made a pact with the Devil...” in that the house (which is distinctive in its own right) becoming a focus of public attention/curiosity was virtually inevitable – particularly given the series’ enormous popularity and burgeoning fan base.

[14]   RadioWorks concluded that:

Rather than being viewed as highly offensive [RadioWorks] considers that the disclosure, while objected to by SPP and the occupant of the house, is more likely to be regarded as somewhat unfortunate but unsurprising, if not inevitable, by objective, reasonable people...

In allowing the house to be used as an ongoing and distinctive film set location, the occupant of the house has forgone any expectation of privacy so far as the identification of the house is concerned.

[15]   The broadcaster declined to uphold the complaint that Principle 3 had been breached.

Further Comment from the Complainant

[16]   SPP commented on a number of aspects of RadioWorks’ response. First, it argued that RadioWorks’ interpretation of “identifiable” was incorrect. SPP maintained that privacy principle 4 required that the individual whose privacy had allegedly been interfered with was “identifiable”, not that they were “identified”. It said that while “disclosure of the street address of the house may not identify its occupant, it does make its occupant identifiable”.

[17]   With regard to what is “highly offensive”, SPP pointed out that Marcus Lush:

...highlighted the difficulties of living in a house that’s been used as a location for a successful TV series and then proceeded to encourage people to visit such a house and gave them information enabling them to do so. We consider this to be highly offensive to an objective reasonable person.

[18]   SPP contended that Marcus Lush or someone else at RadioWorks had realised that the disclosure was unacceptable, as he said on air the following morning, “Done a lot of thinking about the Outrageous Fortune house. We won’t be broadcasting the address again, I did it once, but we won’t do it again”.

[19]   In response to RadioWorks’ argument that once a person has agreed to their house being used as a location for a TV series, disclosure is “somewhat unfortunate but unsurprising, if not inevitable”, SPP maintained that, while it may be “inevitable” that people passing the house would recognise it, it was not “‘inevitable’ that their address will be broadcast on national radio and people encouraged to visit it”. It was for this reason that it was highly offensive to an objective reasonable person, SPP said.

[20]   With regard to RadioWorks’ submission that the occupant of the house, in agreeing to it being used as a set location, had “forgone any expectation of privacy so far as the identification of the house is concerned”, SPP argued that it must follow that Marcus Lush, by agreeing to be a radio presenter, had forgone any expectation of privacy so far as his identification was concerned, and that details of where and how to find him could be broadcast on national radio. SPP contended that “surely, individuals who agree to become involved in the media industry are still entitled to protection of their right to privacy”.

[21]   SPP maintained that if the disclosure in this case of a private address on national radio, and encouraging the public to visit it was considered acceptable, it would seriously compromise producers’ abilities to secure future locations, as well as this particular location for further series of Outrageous Fortune.

Further Comment from the Broadcaster

[22]   RadioWorks responded to each of SPP’s comments in turn. First, it maintained that the individual in question had to be identifiable from the actual broadcast, and that no individual was identifiable from this particular broadcast.

[23]   RadioWorks argued that although the radio host had shown some empathy towards the occupant of the house, he articulated to listeners that they had “effectively sealed their own fate” by allowing their distinctive house to be filmed as part of what has become an immensely popular local television programme. It said that the host was very much in tune with his listeners and believed they would not have found the disclosure of the address highly offensive. The broadcaster maintained that his comment that he had given considerable thought to the previous broadcast and the disclosure “was appropriate and professional but does not amount to an acknowledgment of any breach or of any wrongdoing”.

[24]   With regard to SPP’s comparison of the house with the host of the radio programme, RadioWorks argued that it was not “legitimate or valid”, because it is firmly established in privacy law that “anyone or anything associated with celebrity has, at the very least, a reduced expectation of privacy”, as a direct consequence of involvement with the media industry.

[25]   RadioWorks rejected SPP’s claim that acceptance of the broadcast would compromise producers’ abilities to secure filming locations, which it said would include many other considerations. It contended that some home owners would be very willing to be paid to have their house in the public spotlight.

Complainant’s Final Comment

[26]   The complainant contended that privacy principle 4 recognised that an individual could be “identifiable (if not identified) by the disclosure of an address alone”. There were numerous ways that a person could have identified this individual, it said, by visiting the address, talking to neighbours or looking at mail sent to the address.

[27]   It noted that in Decision No. 1995-099 the Authority had said that disclosure of an address “is a means of identifying a person...it allows the person informed to establish the person’s identity or, at least, to know where to find that person”.

[28]   SPP stated that, although the host may not have been encouraging listeners directly to harass the occupants of the house, he must have realised that encouraging listeners to undertake tours to the house would result in harassment of the occupants.

Authority's Determination

[29]   The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[30]   Principle 3 of the Radio Code requires broadcasters to maintain standards which are consistent with the privacy of the individual. Privacy principle 4 states that the protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

[31]   It is not disputed that the address of the “Outrageous Fortune house” was disclosed by the radio host during the broadcast. However, under privacy principle 4, the address would have to be linked to an “identifiable individual” before the broadcast could be said to have breached the privacy standard.

[32]   The occupant of the “Outrageous Fortune house”, in the Authority’s view, was not “identifiable” in the broadcast complained about. The broadcast was not concerned with the individual who lived in the house, but the house itself. The occupant was not named or referred to. Accordingly, the Authority considers that privacy principle 4 does not apply.

[33]   For the record, the Authority notes that privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public. The address of the Outrageous Fortune house was not disclosed for the purpose of encouraging members of the public to harass the individual who resided there, but rather to “pay homage” to the house.

[34]   RadioWorks also assessed SPP’s complaint under privacy principle 1. The Authority agrees with the broadcaster that, as the occupant of the house was not identifiable, and the item did not disclose any private facts about that individual, privacy principle 1 was not breached on this occasion.

[35]   Accordingly, the Authority declines to uphold the complaint that the broadcast breached Principle 3 (privacy).

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 July 2008

Appendix

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

1.           South Pacific Pictures’ direct referral to the Authority – 13 February 2008
2.           RadioWorks’ response to the Authority – 26 March 2008
3.           Further comment from SPP– 18 April 2008
4.           Further comment from RadioWorks – 19 May 2008
5.           SPP’s final comment – 5 June 2008