Complaint under section 8(1)(b) of the Broadcasting Act 1989
KFC Drive-by show – random prank phone call – host called the same number twice – sang a song and then suggested the man was rude for hanging up – allegedly in breach of law and order, social responsibility and fairness standards
Principle 2 (law and order) – no evidence that the host condoned criminal behaviour or encouraged criminal activity – not upheld
Principle 5 (fairness) – unable to determine in the absence of a recording – decline to determine
Principle 7 (social responsibility) – subsumed under Principle 2
This headnote does not form part of the decision.
 On the KFC Drive-by show between 3pm and 7pm on 27 April 2007, the host dialled a random telephone number from the phone book belonging to the “Johnson family”. He had a caller ready to sing a song down the phone as soon as the call was answered. The man who answered the call hung up the phone as it became evident that the call was a prank.
 The host then phoned the same number again and suggested that the man was rude for hanging up before the caller had finished singing. The man terminated the call. The host was eager to telephone a third time but was stopped by his co-host who felt that the man was obviously upset by the calls.
 Liz Talaepa made a formal complaint about the broadcast to The Radio Network Ltd, the broadcaster. She felt that the host’s practice of making prank calls was a form of harassment which had breached Principle 2 (law and order) of the Radio Code. She also argued that it had breached Principle 7 (social responsibility) as the host, who was seen as a role model to young New Zealanders, was setting a poor example to the station’s target audience.
 Ms Talaepa stated that harassment was against the law, and that she understood that people could not be recorded and broadcast without their consent.
 Principles 2, 5 and 7 and guideline 5a of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
No telephone conversation will be recorded or broadcast for the purpose of news, current affairs or any other programme, unless the recipient has been advised that it is being recorded for possible broadcast, or is aware that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.
In programmes and their presentation, broadcasters are required to be socially responsible.
 Ms Talaepa referred her complaint to the Authority under s.8(1)(b) of the Broadcasting Act 1989. Although TRN responded to a different formal complaint she had made about the practice of making prank phone calls, it had not responded to her complaint about the “Johnson family” call.
 Ms Talaepa referred to Principles 1 (good taste and decency), 5 (fairness), and 6 (accuracy) in her letter. She particularly noted guideline 5a to the fairness standard and contended that the debate lay in what was considered to be “legitimate use of humour”. In the complainant’s view, the person who had answered from the Johnson family residence did not find the prank funny, and it was not “legitimate use of humour”.
 Referring to guideline 2a to Principle 2 (law and order), Ms Talaepa said that the practice of random calling sent the message to Flava’s young audience that it was acceptable because it was “funny”. Her concern was that the audience was impressionable and likely to imitate the host’s behaviour.
 TRN noted that there had been some confusion over Ms Talaepa’s complaint because she had sent a number of emails to the station manager at Flava about an earlier broadcast. Accordingly, it had overlooked her complaint about the “Johnson family” call and no longer had a recording of that broadcast. It accepted the complainant’s description of the broadcast.
 TRN made some general comments in response to Ms Talaepa’s concerns about prank calls. It stated that Ms Talaepa’s concerns did not fall within Principle 2 (law and order), but considered the complaint under Principle 7 (social responsibility). TRN maintained that the host had used legitimate humour and wrote:
 The members of the Authority have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing. Although a recording of the broadcast was not available, TRN has agreed to the complainant’s description of the broadcast which is outlined in paragraphs  and .
 The Authority has stated on a number of occasions that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see for example Decision No. 2006-051).
 The Authority notes an offence is committed under section 112(2)(a) of the Telecommunications Act 2001 by any person who:
…uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient.
 As a starting point, the Authority wishes to make it clear that the question of whether the host actually committed an offence under this section of the Telecommunications Act 2001 is a matter outside of the Authority’s jurisdiction. That is a matter for the courts to determine.
 For the record, the Authority expresses its distaste for the practice of prank phone calling. However, it notes that there is nothing in the complainant’s description of the broadcast that suggests the host was aware of the above law, or condoned breaking that law. Further, there is no indication that he encouraged listeners to engage in criminal activity. In these circumstances, the Authority considers that Principle 2 was not breached.
 In the Authority’s view, Ms Talaepa’s concerns about the use of a telephone to disturb and harass people have been addressed appropriately in its consideration of Principle 2 above. Accordingly, the Authority subsumes the Principle 7 complaint into its consideration of the law and order standard.
 In the absence of a recording, the Authority is not aware of the words used in the exchange between the host and the caller, or the caller’s reaction. Therefore it is unable to assess whether the recipient of the call was treated fairly. In these circumstances, the Authority cannot assess whether the broadcast complained about breached Principle 5. Accordingly, it declines to determine this part of the complaint under section 11(b) of the Broadcasting Act 1989.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
14 August 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Liz Talaepa’s formal complaint – 27 April 2007
2 Ms Talaepa’s referral to the Authority – 15 May 2007
3 TRN’s response to the Authority – 28 May 2007
4 Further response from TRN – 21 June 2007