BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(ii) of the Broadcasting Act 1989
The Edge – broadcast conversation with listener – hosts had told listener that she was not on air – broadcast her cellphone number – listener complained that broadcast breached her privacy and was unfair – broadcaster upheld the complaint – action taken allegedly insufficient

Findings
Standard 3 (privacy) – action taken insufficient – upheld

Standard 6 (fairness) – action taken insufficient – upheld

Order
Section 13(1)(d) – payment to the complainant for breach of privacy $1,500

This headnote does not form part of the decision.

Broadcast

[1] On Wednesday 27 August 2008 on The Edge radio station, a telephone conversation between the hosts and a listener was broadcast between 5pm and 6pm. The listener expressed concern that the hosts were making inappropriate remarks about people from other countries, such as India and America.

[2] After some discussion the listener terminated the conversation. One of the hosts said, "If you would like to learn to be a better person, 021..." and then gave the next three digits of the listener’s cellphone number. He was interrupted by the other host who told him not to give out the listener’s phone number, but he then gave the last three digits of the number.

Complaint

[3] RW, the listener who had spoken to the hosts, made a formal complaint about the broadcast to RadioWorks Ltd, the broadcaster. She explained that, after hearing certain comments on the radio station, she had written to the studio to ask that they stop making fun of people from other countries. The hosts then telephoned her, and she had asked whether she was on the radio. They told her that she was not.

[4] The complainant said that she had received approximately 60 text messages after the broadcast of her cellphone number, including the following:

Hey I really thought wat u said on the radio yesterday was a lot of shit you fucking slut.
Go bak 2 the usa douchbag.
Educated? Your retarded.
Ur a real egg u dnt know shit bout our country so pis off bak 2 ur own at least we dnt go round shoting poor innocent kids in schools.

Standards

[5] RW nominated Standards 3 and 6 and guideline 6f of the Radio Code of Broadcasting Practice, which provide:

Standard 3

Broadcasters should maintain standards consistent with the privacy of the individual.

 

Standard 6

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Guideline 6f
No telephone conversation should be recorded or broadcast unless the recipient has been advised that it is being recorded for possible broadcast, or is aware (or ought reasonably to have been aware) that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.

Broadcaster's Response to the Complainant

[6] RadioWorks agreed that the hosts should not have broadcast the complainant’s phone number and that Standard 3 (privacy) was breached in this respect. It also found that the hosts’ actions in phoning RW and telling her that she was not on the radio, when in fact she was, and also broadcasting her telephone number, breached Standard 6.

[7] Accordingly, RadioWorks upheld the privacy and fairness complaints.

[8] The broadcaster said that, as a result of RW’s complaint, the programme director had been spoken to and had reprimanded the staff members involved. RadioWorks wrote:

...all involved extend sincere apologies to you for the inconvenience this has caused. In light of the steps taken the [Standards Committee] is confident that this host will not repeat this behaviour again.

Referral to the Authority

[9] Dissatisfied with the action taken by RadioWorks, RW referred her complaint to the Authority under section 8(1B)(b)(ii) of the Broadcasting Act 1989. She stated that the consequences for the hosts were insufficient, and requested that her name remain private.

Broadcaster’s Response to the Authority

[10] RadioWorks stated that the Authority should not uphold RW’s complaint if it agreed that the action taken by the broadcaster was appropriate to recognise the acknowledged breach of broadcasting standards. It submitted that the response had been adequate for the following reasons:

• a genuine apology had been tendered by both the host and the station
• an on-air mention was not sought and would not be appropriate as the complainant did not want any further references made to her
• the host had been spoken to by his manager and the breach was not sufficiently serious for the broadcaster to take any further disciplinary action
• the complainant had not incurred any costs as a result of the breach and had been invited to tell the broadcaster if she had done so, so that consideration could be given to "making good" any loss.

Authority's Determination

[11] 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.

Action taken complaint

[12] In the Authority’s view, the actions of The Edge hosts amounted to serious breaches of the fairness and privacy standards. The hosts lied to RW about whether the phone call was being broadcast, and gave out her telephone number for the purposes of harassment (which subsequently occurred). It also notes that this is the second time a serious breach of the privacy standard has occurred involving this particular programme and its hosts (see Decision No. 2006-112).

[13] The broadcaster has advised the Authority that the host who had given out RW’s phone number was reprimanded by his manager and that the breach was "not sufficiently serious" to take any further disciplinary action. Taking into account the nature of the breaches, the Authority disagrees, and it is not satisfied that the broadcaster has taken sufficient action to ensure that similar breaches will not recur.

[14] Accordingly, the Authority upholds the complaint that the action taken by RadioWorks was insufficient.

Name suppression

[15] Given that it has upheld the complaint, and taking into account the nature of the broadcast, the Authority agrees that it is appropriate that the complainant’s name should be withheld from the decision.

For the above reasons the Authority upholds the complaint that the action taken by RadioWorks Ltd in upholding a complaint that an item on The Edge on Wednesday 27 August 2008 breached Standards 3 and 6 of the Radio Code of Broadcasting Practice was not sufficient.

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

[17] RW submitted that the Authority should order RadioWorks to pay $5000 costs to the Crown and $5000 compensation to her for breach of privacy.

[18] RadioWorks wrote:

The staff member in question was spoken to by his manager and it was made clear to him that a repeat of such behaviour would not be tolerated... Perhaps this was not made sufficiently clear in the Standards Committee decision where the committee explained that further disciplinary action (apart from the censure) was not considered appropriate.

[19] The broadcaster reiterated that it had offered to compensate the complainant for any costs associated with the breach of broadcasting standards, but that RW had confirmed that "she was not out of pocket" as a result.

[20] The Authority has taken into account the submissions on orders. It accepts that the disciplinary action taken by RadioWorks was more serious than indicated in the broadcaster’s initial response. In these circumstances, it considers that an order of costs to the Crown is not appropriate.

[21] However, the Authority is of the view that the action taken was insufficient given the nature of the privacy breach. It acknowledges RadioWorks’ offer of compensation, but notes that this was restricted to actual financial loss the complainant may have incurred as a result of the breach of her privacy. The Authority considers that this was inadequate. The provision in section 13(1)(d) of the Broadcasting Act 1989 which allows for compensation for a breach of privacy recognises that such breaches are always personal and unique, as they result in hurt and humiliation and a loss of dignity for the individual affected.

[22] In this case, the complainant was subjected to abuse and mockery through her cellphone as a result of her telephone number being broadcast, and she complained that her privacy was "violated" as a result. The Authority considers that the breach of privacy was sufficiently serious to justify some form of compensation, and it now orders RadioWorks to pay $1500 to the complainant.

[23] The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in making the above order. For the reasons outlined above, it considers that ordering RadioWorks to pay compensation to RW for the breach of her privacy is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders RadioWorks Ltd to pay to the complainant costs in the amount of $1,500, within one month of the date of this decision, by way of compensation for the breach of her 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.

Signed for and on behalf of the Authority

Joanne Morris
Chair
17 February 2009

Appendix

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

1.      RW’s formal complaint – 28 August 2008
2.     RadioWorks’ decision on the formal complaint – 26 September 2008
3.     RW’s referral to the Authority – 3 October 2008
4.     RadioWorks’ response to the Authority – 16 October 2008
5.     RW’s submissions on orders – 23 December 2008
6.     RadioWorks’ submissions on orders – 13 January 2009