BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
ZM – host discussed a television item that had contained an interview with Ray Spring – host made various statements about Mr Spring and told listeners where to find his home address in the White Pages – allegedly in breach of law and order, privacy, balance and fairness standards

Findings
Principle 3 (privacy) – item disclosed complainant’s name and effectively disclosed his address in a manner that was highly offensive – no legitimate public interest in the disclosure – upheld

Principle 5 (fairness) – item breached standards of privacy which was also unfair – item encouraged listeners to harass the complainant – upheld

Principle 2 (law and order) – item did not encourage listeners to break the law – the host’s comments were not sufficiently explicit to promote, condone or glamorise criminal activity – not upheld

Principle 4 (balance) – item did not discuss a controversial issue of public importance – not 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]   During an item broadcast on ZM, on 29 August 2007, the host made a number of comments relating to the actions of a man called Ray Spring. Mr Spring had been interviewed on television the previous night. During the television interview, Mr Spring had discussed his dislike for cats and said that he had been trapping and drowning them.

[2]   The radio host briefly discussed Mr Spring’s television interview and voiced his outrage at the fact that Mr Spring was trapping and drowning cats. The host then played an excerpt of Mr Spring talking about how he drowned cats by trapping them in a cage and submerging the cage in a barrel of water. After this excerpt was played the host said:

...last night on Campbell Live something got me really upset…his name is Ray Spring...this guy wants to wipe out cats in Christchurch...if you are upset like we are, we suggest you send him a letter, a post card or perhaps something letting him know how you feel. We’ve tried to call him, he’s been on national TV telling us how he kills domestic cats in Christchurch, but in a cowardly fashion he’s changed his phone number, but he is publicly listed in the White Pages. In fact, on-line as well, you can go to I believe page ###…page ###...page ### of the White Pages. Ray Spring, S-P-R-I-N-G…and we suggest that if you feel how we do...that you send something to him to let him know that perhaps you’re not very happy about that…but Ray Spring the cat Hitler, is a cruel, cowardly, disgusting, sickening, shit bag with bad shoes and I’d really love to see him in a cage and immersed too...what a sick man.    

[3]   The broadcast was repeated at approximately 5.20pm that afternoon.

Complainant

[4]   Ray Spring made a formal complaint to The Radio Network (TRN), the broadcaster, alleging that the item had breached standards of law and order, privacy, balance and fairness.

[5]   Mr Spring stated that while he did not hear the broadcast, his son did and had told him that the item “sounded like an incitement to riot”. He maintained that the host had repeatedly given out his name and how to find him in the telephone book. The complainant said he had received a number of threatening phone calls that day and that a brick meant for his house had been mistakenly thrown through his neighbour’s window. Mr Spring also stated that his car had been damaged while it was parked on his street. He maintained that the broadcast had breached law and order standards as it had encouraged people to harass him.

[6]   The complainant argued that the radio broadcast was a “sustained attack on his privacy”. Mr Spring stated that while his name had been given out during his television interview and he had expected some calls from people wanting to discuss the cat issue, the radio broadcast had attacked and breached his privacy.

[7]   Mr Spring maintained that the item was unbalanced because ZM had not sought to obtain his views on the cat problem and that standards of fairness had been ignored.       

Principles

[8]   TRN assessed the complaint under Principles 2, 3, 4 and 5, of the Radio Code of Broadcasting Practice and Privacy Principles 4 and 8 of the Authority’s Privacy Principles. These provide:

Principle 2 (law and order)

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Principle 3 (privacy)

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

Privacy Principles

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.

8   Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

Principle 4 (balance)

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Principle 5 (fairness)

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Broadcaster's Response to the Complainant

[9]   TRN argued that Mr Spring had advocated against “the existence of cats” for a long time and that this had brought him considerable publicity and a public profile. The broadcaster maintained that the item did not advocate breaking the law but had suggested to listeners that they write to Mr Spring to let him know their opinions about his method of killing cats. It declined to uphold the complaint that the item had breached the law and order principle.

[10]   The broadcaster stated that while the broadcast did not specifically give out the complainant’s address or phone number, it did provide the page number in the White Pages where his address could be found. TRN argued that Mr Spring’s seeking of publicity “in the matter of cat euthanasia” made the matter one of public interest and that his views on cats were so strong that there was a legitimate right for people to let him know their feelings about his stance. The broadcaster found that the item had not breached Principle 3.

[11]   In response to the balance complainant, TRN argued that while it did not seek the views of Mr Spring, it had played extracts from his television interview the previous night. It believed that the complainant’s views on cats were well known and that he had received considerable print and internet media attention. The broadcaster maintained that it had only replayed the item on one other occasion. It declined to uphold the complaint that the broadcast was unbalanced. 

[12]   With respect to fairness, the broadcaster stated “based on Mr Spring’s adamant stance on the killing of cats, the strong antipathy of the host should not have come as a surprise”. It argued that the complainant gave “what many regarded as outlandish views on the killing of cats” and that “the host replied in kind”. TRN found that the item was not unfair to Mr Spring and it declined to uphold the complaint.   

Referral to the Authority

[13]   Dissatisfied with TRN’s decision, Mr Spring referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. The complainant reiterated that he had received “many threatening phone calls” and letters.

[14]   The complainant argued that the broadcaster’s definition of public interest was so wide that very few people would be entitled to privacy.

[15]   Mr Spring believed that playing selected extracts from his television interview did not provide balance to the item.

[16]   In terms of fairness, the complainant argued that people were entitled to hold opinions and have them heard, without broadcasters “generating a torrent of hate against them”.   

Broadcaster’s Response to the Authority

[17]   TRN pointed out that the complainant had never heard the broadcast and continued to “quote second hand versions”.

[18]   The broadcaster maintained that Mr Spring was well known and anyone could have looked in the Christchurch phone book to ring or write to him.

[19]   TRN argued that Mr Spring’s views had been widely canvassed in the media and that by playing the extract from his television interview the complainant’s attitude towards cats was clearly signalled.

[20]   The broadcaster considered that the complainant had not been silenced, as he had received prime time television exposure as well as considerable newspaper publicity. It stood by its decision not to uphold the complaint.

Authority's Determination

[21]   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.

Principle 3 (privacy)

[22]   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.

[23]   The Authority notes that, under privacy principle 4, it is not the mere disclosure of an individual’s name, address or telephone number that will amount to a breach of the principle; the disclosure must have been made in a manner that the objective reasonable person would find highly offensive. This principle was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public.

[24]   The first task for the Authority is to consider whether Mr Spring’s name, address or telephone number were disclosed in the broadcast. It notes that the programme’s host stated the complainant’s full name on more than one occasion (including spelling his surname out) and repeatedly referred listeners to the page number in the White Pages where his home address and previous phone number could be located. In these circumstances, the Authority concludes that the broadcast disclosed Mr Spring’s name and effectively disclosed his address for the purposes of privacy principle 4.

[25]   Second, the Authority must decide whether an objective reasonable person would find the disclosure of Mr Spring’s name and the White Pages’ information highly offensive. In the Authority’s view, the point of disclosing those details was to encourage listeners to harass the complainant. This was evident from the host’s vitriolic comments about Mr Spring, including calling him “cat Hitler”, “disgusting”, “sickening” and “shit bag” and the suggestions that were made about what listeners might do to show they disagreed with him. In these circumstances, the Authority considers that an objective reasonable person would find the disclosure of the complainant’s name and the White Pages’ information, which effectively disclosed his address, highly offensive.

[26]   A defence to a breach of an individual’s privacy is outlined in privacy principle 8, which states that “disclosing the matter in the public interest, defined as of legitimate public concern or interest to the public, is a defence to a privacy complaint”. The Authority considers that there was no legitimate public interest in disclosing the information about the complainant in the item. Accordingly, the Authority upholds the complaint that the item breached Principle 3 (privacy).

Principle 5 (fairness)

[27]   The fairness principle requires broadcasters to deal justly and fairly with any person taking part or referred to in an item. The Authority has found that the item breached the complainant’s privacy. It considers that, in doing so, the broadcaster also treated Mr Spring unfairly. The broadcast disclosed Mr Spring’s details and encouraged listeners to send something “letting him know how you feel”. This was accompanied by virulent personal abuse of Mr Spring, and the host’s clear intention was that listeners should harass Mr Spring. Accordingly, the Authority upholds the complaint that the item breached the fairness standard.

Principle 2 (law and order)

[28]   The Authority has stated on previous occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers or listeners to break the law, or otherwise promote, glamorise or condone criminal activity. The words “encourage”, “promote”, “glamorise” and “condone” are strong words and reveal that, to breach the standard, a broadcast must be unequivocal in its support of criminal activity.  In the Authority’s view, the host’s suggestions to listeners on this occasion did not go so far as to breach the law and order standard. For example, the host stated “…if you are upset like we are, we suggest you send him a letter, a post card or perhaps something letting him know how you feel”.

[29]   The Authority considers that while the host encouraged listeners to send negative feedback to Mr Spring, he was not so clearly in favour of listeners engaging in unlawful acts as to be said to be encouraging them to break the law, or to be promoting, glamorising or condoning criminal activity. Accordingly, the Authority declines to uphold the law and order complaint.

Principle 4 (balance)

[30]   The balance standard only applies to programmes which discuss controversial issues of public importance. This was not such a programme. The announcer’s comments, which are the subject of this complaint, were his reaction to an item on television the previous evening. They were made during a voice-break, an interlude between songs which was intended to entertain rather than inform. In the Authority’s view, the comments were not a discussion of a controversial issue. Accordingly, the Authority declines to uphold the balance complainant.

For the above reasons the Authority upholds the complaint that the broadcast of an item on ZM by The Radio Network Ltd on 29 August 2007 breached Principles 3 and 5 of the Radio Code of Broadcasting Practice.

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

[32]   Mr Spring stated that he believed the broadcast had been repeated a number of times during the afternoon of 29 August. He submitted that the broadcaster should be ordered to refrain from broadcasting for a period of a week, and that it should pay costs to the Crown in the amount of $5,000. Mr Spring stated that he had not parked his car outside his home in case it was vandalised by people who had heard the broadcast. It had subsequently been damaged by a neighbour who reversed into it. He submitted that the broadcaster should be ordered to pay for this damage, and also the cost of his neighbour’s broken window.

[33]   The complainant also argued that he should be awarded $5,000 compensation for the breach of his privacy.

[34]   TRN disputed Mr Spring’s contention that the broadcast was repeated up to seven times, stating that the broadcast was repeated only once. It noted that there was no evidence to suggest that the complainant’s neighbour’s broken window and his damaged car were related to the broadcast.

[35]   The broadcaster submitted that an apology to Mr Spring should be broadcast at the approximate time of the initial broadcast.

[36]   In response, Mr Spring stated that he did not want a broadcast apology as he thought this might “once again start the physical and verbal attacks” on him. He asked the Authority to confirm the dates and times of the broadcasts, and to ask TRN to confirm that “no other attacks of any sort were made by the station on 28, 29 and 30 August”.

[37]   TRN confirmed that, in addition to the original broadcast, the item was repeated once at approximately 5.20pm on 29 August 2007.

Authority’s Decision on Orders

[38]   Looking first at whether TRN should be ordered to pay compensation to Mr Spring for the breach of his privacy (section 13(1)(d) of the Broadcasting Act 1989), the Authority agrees that an award of compensation is appropriate.

[39]   In determining the amount of compensation, the Authority takes into account the fact that Mr Spring put himself in the public eye by appearing on Campbell Live and espousing his provocative views on controlling the cat population. However, although his views may not have been popular, he was entitled to express them without a radio broadcaster using the airwaves to encourage the public to harass him.

[40]   The Authority also takes into consideration that the broadcast did not go so far as to actually encourage violence or criminal behaviour (see paragraphs [28] and [29] above). The host stated “…if you are upset like we are, we suggest you send him a letter, a post card or perhaps something letting him know how you feel”. The Authority considers that this mild language and suggestion placed this broadcast towards the lower end of the scale for a breach of privacy principle 4.

[41]   Taking all of these factors into account, the Authority finds that it is appropriate to order TRN to pay $1,500 compensation to Mr Spring for the breach of his privacy.

[42]   The Authority has no jurisdiction to order TRN to pay Mr Spring for damage to his car, nor Mr Spring’s neighbour for the cost of her broken window.

[43]   The Authority notes that TRN has offered to broadcast an apology to Mr Spring. Given that the complainant has specifically requested that no apology be broadcast, the Authority declines to order a broadcast statement under section 13(1)(a) of the Broadcasting Act.

[44]   However, the Authority has taken the above offer into account in assessing whether an order of costs to the Crown would be appropriate. It has also taken into consideration the seriousness of the breach of Mr Spring’s privacy with reference to other privacy complaints in which costs to the Crown have been awarded. These have generally been situations involving the disclosure of private facts, or the intrusion into an individual’s solitude and seclusion with a hidden camera. The Authority finds that the breach of privacy on this occasion does not warrant an order of costs to the Crown in addition to the compensation to Mr Spring.

Bill of Rights

[45]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination and in ordering the payment of compensation to Mr Spring. The  Authority considers that its exercise of powers on this occasion 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.

Orders

Pursuant to section 13(1)(d) of the Broadcasting Act 1989, the Authority orders The Radio Network 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 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.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 April 2008

Appendix

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

1.            Ray Spring’s formal complaint – 15 September 2007
2.           TRN’s decision on the formal complaint – 26 September 2007
3.           Mr Spring’s referral to the Authority – 15 October 2007
4.           TRN’s response to the Authority – 2 November 2007
5.           Mr Spring’s submissions on orders – 20 February 2008
6.           TRN’s submissions on orders – 27 February 2008
7.           Further submissions from Mr Spring – 17 March and 27 March 2008
8.           Further information from TRN – 3 April 2008