BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Talkback, hosted by Arch Tambakis, was broadcast on the Radio Liberty Network from

midnight until dawn in October and November 1995, and for a 36 hour marathon

session at Labour weekend.

Ms L complained to Radio Liberty Network about the offensive and threatening

language used by the host in the broadcast during and after the Labour weekend

marathon session. She also complained directly to the Authority under s.8(1)(c) of the

Broadcasting Act 1989 that the personal comments which referred to her in the

broadcasts at that time breached her privacy. She later complained (again under

s.8(1)(c)) that the broadcast on Radio Liberty on 14 November breached her privacy

when the host announced her name, address and telephone number.

Explaining that it did not intend to get involved in the personal affairs of the caller and

the host, Radio Liberty declined to uphold either of the complaints about the Labour

weekend session. In response to the complaint about the broadcast on 14 November,

Radio Liberty advised that the host had been told never to give out anyone's name,

address or telephone number without their consent. Dissatisfied with the broadcaster's

response to the language complaint, Ms L referred it to the Authority under s.8(1)(a) of

the Act for consideration at the same time as the two privacy complaints.

For the reasons below, the Authority upheld the complaint that the broadcast on 14

November 1995 breached Ms L's privacy and awarded compensation of $750.

Decision

The members of the Authority have listened to extracts from the broadcasts complained

about (supplied by Ms L) and have read the correspondence (summarised in the

Appendices). As is its practice, the Authority has determined the complaints without a

formal hearing.

Ms L complained to the Authority, under s.4(1)(c) of the Broadcasting Act 1989, that

some comments made on 28 October 1995 by the midnight to dawn talkback host on

Radio Liberty (Arch Tambakis) breached her privacy. Pursuant to that provision

broadcasters are required to maintain standards consistent with the privacy of the

individual. The basis for the privacy complaint, Ms L continued, were the host's

comments on air that she "stalked" him, and then cutting her off without giving her an

opportunity to respond. In addition, she wrote, the host gave her full name on air and

the name of the street in which she lived. Ms L sought an apology from Radio Liberty

and compensation of $100,000 for the humiliation incurred.

At the same time, Ms L complained to Radio Liberty about some of the language used

by the host during and subsequent to a marathon 36 hour talkback session during

Labour Weekend. She said that some of his comments to callers were offensively

abusive and some of his remarks to women were offensively suggestive. She alleged

that the language breached the requirement in the broadcasting standards to maintain a

standard of good taste and decency.

Describing the host's style as "unique", Radio Liberty declined to uphold the complaint

which alleged a breach of the good taste and decency requirement. As there was some

doubt as to the specific broadcast in which the language complained about was used,

and as the issues raised were considered to be subsidiary to the privacy matter, the

Authority declined to determine the complaint which alleged a breach of the good taste

and decency standard.

In regard to the complaint that the broadcast which gave her name and address had

breached her privacy, Radio Liberty in its letter to Ms L, expressed the opinion that

some aspects of a former personal relationship between Ms L and the host had

"coloured her judgment". It advised Ms L to consider "not listening any further to his

shows". In her comment to the Authority on Radio Liberty's letter, Ms L said her

involvement with the host was not the central matter.

There is some doubt as to the exact date on which Radio Liberty was alleged to have

broadcast Ms L's name and the street on which she lived for the first time. As there is

no doubt about the date of the second broadcast in respect of which Ms L again alleged

a breach of privacy, the Authority has subsumed the first complaint into the one which

refers to a broadcast during the early morning of Tuesday 14 November.

During the first weeks of November, the principal sponsor for Radio Liberty's midnight

to dawn talkback show withdrew its sponsorship.

Using the name of "Marie", Ms L rang the host to express her pleasure at the host's

misfortune. The following exchange took place (omitting the details complained about)

apparently shortly before either 1.00 or 2.00am on the morning of 14 November:

Host (Arch Tambakis:)   Marie, are you there?

Female caller:                Yes and you deserve everything that is coming to you –

Host:                             Yeah that's true isn't it?

Female caller:               – you little rat

Host:                             Yeah

Female caller:                 And I'm glad you're –

Host:                              Yeah that's for sure sweetheart. You're the bitch and the

                                      slut that ah, that ah stalks me too. Now, I think the

                                      Police better get hold of you, because you are a danger to

                                       yourself – Maria. Your name is ** ** and your address is

                                       ** Street and your phone number's *** ****. You're

                                       not from Wellington. You're not from anywhere.

                                       Well, I'll take Barbara after the news. Alright? 379 3300.

                                       Yeah I deserve everything I get because I wouldn't make

                                        love to you, you bloody stupid old bag. You're a tart.

                                         That's what you are. And ah, Wellington. She thought

                                         she'd get on straight away. What a joke.

Ms L complained that the above broadcast comments breached her privacy. She added

that she had received five unwanted telephone calls that night, one of which had adopted

a threatening tone, and said that the matter had been referred to Telecom's nuisance call

service. She sought a public apology, a retraction of the statement and increased

compensation for the humiliation suffered. She mentioned the sum of $250,000.00.

In its report to the Authority, Radio Liberty contended that the Authority's action in

responding to Ms L's complaints unjustifiably gave her some degree of legitimacy. The

more appropriate action on Ms L's part, it argued, was for her not to listen to the show

nor telephone the host. Radio Liberty commented that should the host "transgress any

more in this regard, then we will remove him from his shift forthwith".

Ms L then advised the Authority that on 23 November the host had again named her and

had described her as vengeful and unstable. He had also suggested that the elderly man

looked after by Ms L was in danger. Moreover, the host had told listeners that he had

arranged for Ms L to be certified the following morning. That, she explained, had of

course not occurred.

On that occasion, Ms L complained to the newly appointed Radio Liberty station

manager in Auckland and sought an urgent reply.

Ms L informed the Authority by telephone that Radio Liberty had advised her that it did

not intend to act on her complaint about the 23 November broadcast. However, she

continued, because of her concern for the elderly man, she had placed the matter in the

hands of the police. She also reported that she continued to receive unwanted calls.

The Authority has not received a formal complaint concerning the alleged remarks

broadcast on 23 November.

Ms L responded in writing to Radio Liberty's written comments noted above (when it

claimed that the Authority's response gave her an undeserved legitimacy) and

described them as arrogant and dismissive. In its response to those remarks,

Radio Liberty emphasised that the correspondence indicated that there had been a

relationship between Ms L and the host which had gone "sour". It also pointed out that

it was public knowledge (following an article in the "Listener") that the host had been

"fired".

The Authority's role was to decide whether the broadcast on 14 November 1995

breached the requirement in s.4(1)(c) of the Act (repeated in standard R11 of the Radio

Code of Broadcasting Practice) to maintain standards consistent with the privacy of the

individual. It could be argued that Radio Liberty's reference to a transgression

amounted to an acknowledgment that the standard had been contravened.

Because this is the first occasion on which the Authority has been required to determine

specifically whether the broadcast without permission of a caller's name and address by

a talkback host amounts to a breach of privacy, it decided to record its reasoning in full.

In an Advisory Opinion dated 25 June 1992, the Authority recorded five privacy

principles which it intended to apply when determining privacy complaints. Those

principles have been sufficient to deal with all the factual situations covered by

complaints since then and it received High Court approval in TV3 Network Services Ltd

v Broadcasting Standards Authority ([1995] 2 NZLR 720). However, the principles do

not cover the present situation.

In the Advisory Opinion, the Authority acknowledged that the principles enunciated

might require amplification or elaboration as different factual situations were

encountered.

The Authority was required by this complaint to decide whether the factual situation

disclosed amounted to a breach of s.4(1)(c). It noted that the host had used his position

as a broadcaster to abuse a caller. The Authority was of the view that any existing

relationship between the host and the caller was irrelevant. The host should not have

used his role as a broadcaster to deal with a personal dispute.

The host, not only without the caller's permission, gave her name address and phone

number but made other comments which, the Authority decided, were personalised,

reprehensible and totally unacceptable. Ms L had been abused, denigrated and ridiculed

and a public medium was used to deal with a private disagreement.

Under the Broadcasting Act, the Authority deals with a broadcaster which, in this

instance, is Radio Liberty. Under the Act, it is the broadcaster – not an individual host

or commentator – which is responsible for the material which is broadcast.

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

broadcast of comments about Ms L on the Radio Liberty Network on the

morning of 14 November 1995 breached s.4(1)(c) of the Broadcasting

Act 1989.

The principles enunciated in the 1992 Advisory Opinion were based on the Authority's

experience in determining a number of complaints which alleged a breach of privacy.

The Authority is reluctant to add new principles on the basis of one complaint.

However, it is inclined to the view that it may be appropriate to add new privacy

principles (by way of an Advisory Opinion) that a broadcaster's use of the public

airwaves to abuse and denigrate an identifiable person, and the disclosure of the name

and address, and/or telephone number, of an identifiable person without consent, will

each be regarded as a breach of s.4(1)(c) ( and, in the case of a radio broadcaster,

standard R11 of the Radio Code of Broadcasting Practice). The Authority will keep the

situation under review.

Having decided that the host's comments on this occasion amounted to a breach of

privacy by the broadcaster, the Authority considered whether it should impose an order

pursuant to s.13(1) of the Act. Under s.13(1)(d), it may order compensation to a

maximum of $5,000 when a broadcaster fails to maintain standards consistent with the

privacy of an individual. The Authority felt that some compensation was appropriate.

In deciding the appropriate amount, it was required to reach a balance between what it

believed were highly offensive remarks which were broadcast in breach of privacy, and

Ms L's own remarks on telephoning the host which could be considered to be

provocative. The Authority concluded that the sum of $750 was appropriate in the

circumstances.

Order

For the reasons set forth above, the Authority orders the Radio Liberty

Network to pay compensation to Ms L in the sum of $750.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
18 January 1996

Appendix I

Complainant L's Complaint to the Radio Liberty Network - 28 October

1995

Attaching a copy of a letter detailing the complaint addressed to the Broadcasting

Standards Authority, Ms L of Auckland complained to Radio Liberty Network about

some remarks made by the talkback host (Arch Tambakis) during and subsequent to a

marathon 36 hour talkback session during Labour weekend from 21–23 October 1995.

She also referred to previous unanswered correspondence with Liberty about the

midnight to dawn talkback which was also hosted by Mr Tambakis.

In the letter accompanying and detailing the formal complaint, addressed to the

Broadcasting Standards Authority, Ms L said the host on 24 October, described print

journalists as "a pack of apathetic bastards" as his marathon efforts were not reported.

On 27 October, Ms L continued, the host in response to a critical caller named John had

said to him:

You are shit. You are shit. You are shit. Go and wash yourself you stupid shit.

Ms L said her complaint alleged that the broadcasts complained about breached three

standards.

First, she maintained that the comments failed to maintain standards of good taste and

decency. That also happened, she said, as the host referred to women's breasts as

knockers, and boobs and spoke of fondling them and touching them with his tongue.

She continued:

He alludes quite blatantly to women performing oral sex on him and can be very

suggestive sexually towards women who are regular callers. His conversation is

not only overtly and unnecessarily sexual, but he punctuates it with swearing and

abuse if a caller happens to phone in and challenge him in any way, contradict him

or criticise him.

She stated that he referred to public figures who he considered had acted irresponsibly

as "low lifes" or "mongrels".

The standard requiring respect for the principles of law was the second one which Ms L

considered was contravened. The host, she added, on occasions threatened callers with

violence and challenged one, "Brian", to a fist fight. Moreover, he stated that he could

use the police to carry out his threats.

Privacy was the third standards matter raised and as complaints which allege a breach of

privacy may be made directly to the Authority, it is dealt with in Appendix II.

Radio Liberty's Response to the Formal Complaint – 6 November 1995

On behalf of the Radio Liberty Network, Dave Henderson responded to Ms L. He

began:

I am really at a loss to understand what you expect us to do about your problem

with Mr Tambakis. He is a talk show host with his own unique style. It seems to

me that it is elements of that style that you are objecting to, although it also

appears that some past or present personal relationship with Mr Tambakis is

obviously colouring your judgement and causing strain between the two of you.

Pointing out that the host was instructed to comply with the bounds of decency, Mr

Henderson said that the network had no desire to become involved in the personal lives

of either Ms L or the host. He concluded:

My best advice to you is that, given your past relationship with Mr Tambakis, you

should consider not listening any further to his shows.

Ms L's Complaint to the Broadcasting Standards Authority – 10

November 1995

Dissatisfied with Radio Liberty's reply, Ms L referred her complaint to the Broadcasting

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

Maintaining that the complaint was "not entirely personal", Ms L said her involvement

with the host was not the central matter.

Ms L said that Mr Henderson had not responded to the complaint and, in dismissing the

main issues, had adopted a sexist attitude.

Further Correspondence

The matters which this complaint specifically raised were not dealt with again in the

continuing correspondence (dealt with in Appendices II and III).

Appendix II

Complainant L's Complaint to the Broadcasting Standards Authority - 28

October 1995

Ms L of Auckland complained to the Broadcasting Standards Authority that some

comments broadcast by Radio Liberty on the talkback session between midnight–6.00am

 on 28 October (host: Arch Tambakis) breached her privacy.

Expressing the opinion that some of the host's comments were offensive, Ms L said

that he conducted a marathon talkback programme for some 36 hours during Labour

weekend. The comments complained about which refer to people other than Ms L are

dealt with in Appendix I.

As for her privacy complaint, Ms L stated that when she telephoned the host, he claimed

that she "stalked" him and, before she had a chance to respond, she was cut off. She

added that he also threatened to call the police and gave on-air her full name and the

street in which she lived.

Because of what she regarded as "blatant lies", she said that she had called in, using

other names, in an attempt to confront him. Ms L concluded:

I am now seeking a public apology from Radio Liberty regarding the lies, privacy

and human rights violations I have been exposed to at the hands of Mr Tambakis.

I am also seeking $100,000.00 financial compensation for the humiliation he has

put me through, the injustices of allowing me no right of reply to his statements

and stress associated with the uncertainty of what he might do next. The old

gentleman who I housekeep for and who Mr Tambakis publicly referred to as me

waiting for him to Ôcurl and die so I could get the inheritance' is the most

shocking, obnoxious abuse of power Mr Tambakis has sunk into. That particular

remark is unforgivable and untrue as Mr Tambakis well knows.

Radio Liberty's Report to the Authority – 6 November 1995

Radio Liberty's reply which dealt with the two complaints made in Ms L's letter of 28

October is summarised in Appendix I.

Appendix III

Complainant L's Privacy Complaint to the Broadcasting Standards

Authority – 16 November 1995

Ms L of Auckland complained directly to the Broadcasting Standards Authority about

the talkback session (host: Arch Tambakis) broadcast by Radio Liberty between

midnight–6.00am on 14 November.

By way of introduction, Ms L explained that some listeners, because of their dislike of

the host's talkback style, had arranged for the sponsor to cancel its support for the

show. The host had expressed his annoyance and, Ms L reported that, at about 1.00am

and using a false name, she had called and commented:

You deserve everything you get – you are a rat.

In response the host had given on air her name, her address and her confidential

telephone number and later had questioned her ability in her profession.

Ms L said that she had received five unwanted telephone calls that night, one of which

adopted a threatening tone. The matter was referred to Telecom's nuisance call service.

On 14 November, she added, the host had alleged that she was bitter towards him as he

had refused to have sex with her. She concluded:

So after releasing my details on air he attempted to justify his actions by restating

that I was stalking him, was jealous of him and he had refused me sexual

attention. These statements alone are defamatory and grossly untrue existing only

in Mr Tambakis fertile wishful thinking.

            I now seek a public apology for the above, plus a genuinely presented retraction

            of these statements, and I will be seeking an increase in my compensation claim

            for acute humiliation, lack of fair play (I had of course been cut off again and

            unable to respond) and potential harm to my livelihood. The amount I am now

            seeking is $250,000.00.

Further Correspondence

As the host had referred to her again at about 1.20am on 23 November, and had

described her as mentally unstable and repeated the allegations that she was vengeful,

Ms L complained on 23 November in writing to the newly appointed station manager of

Radio Liberty in Auckland. She expressed particular concern that the host had said that

the life of the elderly gent, for whom she cared, was in danger. Seeking an urgent

response, she added:

Once again Tambakis told his listeners that he was sending two police officers,

his lawyer, plus a doctor to certify me to my house at 0900 hours this morning. It

is now 1415 hours and none has turned up as yet. He issues these threats

continually but is unable to back them up with any either reasons or action.

Ms L advised the Authority of Radio Liberty's response in a letter dated 27 November

when she said that she had been informed, verbally, that Radio Liberty did not intend to

act. Because of her concerns for the elderly gent, she said that she had placed the matter

in the hands of the police. She also reported that she continued to receive unwanted

calls.

Radio Liberty's Response to the Authority – 24 November 1995

On Radio Liberty's behalf, Dave Henderson wrote:

The thing has been going on for some time, and the woman has written to me on

numerous occasions. As you know I have responded to her. The fact that you

lend her an ear seems only to legitimise her claims in her mind. Surely common

sense says that if she doesn't like Arch Tambakis, then she shouldn't listen to

him, let alone phone him. I'm sure it doesn't take much to figure out that there is

a lot more between these two than just radio host/caller relationship. Whatever

that "more" is, I can assure you I have no desire to know about. However,

should your sense of masochism reach that deep, then you are welcome to pursue

it.

The host has been told, he continued, that he was never to mention her name on air

again and that he was never to give out on air anyone's phone number or address

without their permission. He added:

You have my assurance that should Arch Tambakis transgress any more in this

regard then we will remove him from his shift forthwith and he can immediately

commence a career as a collection officer for New Zealand On Air.

Mr Henderson concluded by asking the Authority to "please desist from sending me

letters about this nonsense".

Ms L's Final Comment – 2 December 1995

When asked to comment on Radio Liberty's report from Mr Henderson, Ms L

described it as "extraordinary". She said that in the past Mr Henderson's attitude was

arrogant and dismissive and she referred to what she regarded as the host's unjustified

comments on air.

Ms L said that she had received an unwanted telephone call from a woman – apparently

a journalist – to whom the host had told some lies about her. She was concerned about

that woman's inquiries and questioned her credentials as a journalist.

Further Correspondence

Radio Liberty was sent a copy of Ms L's final comment for its information. In a letter

dated 12 December 1995, Mr Henderson replied on Radio Liberty's behalf. He wrote:

This nonsense is quite frankly unbelievable. I can't for a moment believe that you

are taking this women seriously. Whatever sort of idiot Arch Tambakis might be,

he certainly seemed to have this woman's measure. The brief reply that you

asked of her runs to three pages. I don't know what it is intended to be a final

reply to. She claims she has formal complaints against myself, Jolyon Firth and

Arch Tambakis. She then goes on to say she has complaints about Winston

Peters, Peter Williams, and some woman called Anne Gibson.

The obvious questions is, what is her point. She rang a talkback show hosted by

a person she has had some romantic liaison with. Clearly, the relationship turned

real sour. Any half-intelligent person would let it be at that. She doesn't.

Questioning, first, why she continued to listen to the talkback session, and secondly,

why she telephoned, Mr Henderson observed:

That anyone listened to Arch Tambakis at 3 o'clock is a complete mystery to me.

That anyone would have a physical relationship with him is an even greater

mystery to me.

He pointed out that it was now publicly known that Mr Tambakis had been "fired" from

Radio Liberty, commenting:

He was fired because he gratuitously bad-mouthed seemingly decent and innocent

people. Because we have certain standards to keep, he had to go.

As a way of resolving the complaint, Mr Henderson said Ms L was welcome to do a

midnight–dawn shift on Radio Liberty:

... and tell the world in intimate detail everything about her relationship with Mr

Tambakis.

In a reply dated 16 December, Ms L noted the above comments and advised she awaited

the Authority's decision.