BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

On the afternoon of 28 August 1995 the announcer on Wellington's Pirate FM (Derek

Archer) referred abusively to a nephew from Auckland who was visiting his two sons.

Making it clear that he intensely disliked the nephew whom he named, the announcer

threatened to inflict violence on him with a baseball bat. He also broadcast the address

where his sons were living with his former wife, whom he described as "the ex-slug".

Ms Archer complained to Pirate FM and the Broadcasting Standards Authority. To the

station, she alleged a breach of a number of broadcasting standards and, to the

Authority, she objected to her ex-husband's use of the air waves to conduct a personal

vendetta. She described the disclosure of her address as a breach of her privacy.

Pirate FM did not respond either to the Authority's request for comment on the privacy

complaint, or to Ms Archer's standards complaint (on matters other than privacy). After

60 working days had elapsed, she referred the standards complaint to the Authority. At

that time Mr Archer, on Pirate FM's behalf, declined to comment on the complaints on

the basis that the issues were before the courts.

For the reasons below, the Authority upholds both complaints and, in respect of the

privacy complaint, imposes an order for compensation for $1,500.

Decision

Because Ms Archer supplied the Authority with a tape of part of the broadcast on Pirate

FM on 28 August 1995, the Authority has been able to listen to the comments

complained about. The members have read the correspondence (summarised in the

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

formal hearing.

Although not the licensee, Derek Archer is the operator of and principal announcer at

Pirate FM which broadcasts in Wellington. The following are some of the on air

comments broadcast by Pirate FM on 28 August 1995 when Mr Archer was the

announcer:

The person who is associated with my ex-wife and her sister just beat the shit out

of my son. Guess what, I'm neither impressed nor amused. So unless you can

come up with a bloody good explanation right about now, she better start running

for frigging cover because we're about to send down people – down to ***

Avenue and believe you me – grandpa and the kids ...

Believe you me Nicholas [the sons' cousin], well I hope you're listening to me

down in *** Avenue because I'm on my way boy and I've got a baseball bat. It's

got your name on it. You touch one of my kids - I'll break you in half just for the

recreation of it. ...

It was all part of the plan he said, then he looked at the title deeds of the property

and went oh shit not only do we lose our houses and our cars and businesses but

if you get to sit down to pee – I'm talking about females here – if you sit down to

pee, you get to claim everything. That really pisses me off. ...

[Referring to Nicholas] Get the shit out of my house in *** and get the shit out of

the way of my children. ...

N....'s on the way down there to pick up Craig [his son] because I'm getting

really annoyed with the ex-slug and I use the term slug lightly – it's called the ex-

wife now she's the ex-slug – she made the course, now I will finish it. ...

Later, after announcing that Craig (his son) was with him in the studio:

And now Mathew's giving him [Craig] a drink. Don't give him bourbon mate, he

goes bleeding crazy. Mummy will be here shortly. You know, Mummy,

wearing about $9,000 worth of clothing and about $8,000 worth of jewellery on

each hand and she's saying – give me $10 extra a week. Yes. Craig, why are

you laughing. You know it is so true don't you. ...

Ms Archer (the announcer's former wife) complained about the above comments both to

the broadcaster and to the Authority. To the broadcaster, she stated that Mr Archer had

threatened members of her family and her, and had made derogatory comments about

women in general and about her in particular. She maintained that the comments

breached the standards of good taste and decency, the maintenance of law and order and

her privacy as an individual. She listed the following standards which she considered

had been contravened. The first five require broadcasters:

R2  To take into consideration currently accepted norms of decency and good

taste in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

R3  To be mindful of the effect any programme may have on children during

their generally accepted listening periods.

R6  To respect the principles of law which sustain our society

R11 To respect the privacy of the individual

R14 To avoid portraying people in a manner that encourages denigration of or

discrimination against any section of the community on account of gender,

race, age, disability, occupation status, sexual orientation or as the

consequence of legitimate expression of religious, cultural or political

beliefs. This requirement is not intended to prevent the broadcast of

material which is:

a factual

b the expression of serious opinion, or

c in the legitimate use of humour or satire.

The others read:

R22 The use of violence in any programmes should aim to sharpen not to blunt

human sensitivities and its inclusion can only be justified in the dramatic

context in which it is heard.

R29 When a programme is likely to disturb normal listeners to a station, or

significant segments of that audience, appropriate warnings shall be

broadcast.

R32 When programme content may contain material which may be sensitive to

children it shall be handled positively and responsibly by broadcasters.

Examples of such content include programmes relating to anger, sexuality,

violence, relationships, family conflict and alcohol and drug abuse to which

children may be sensitive.

Referring to the same broadcast, she complained directly to the Authority that the same

standards had been transgressed. She gave as the reason for complaining directly to the

Authority:

As Derek Archer is effectively (if not legally) the owner of the Licence and

controls the overall operation of the station, it is patently obvious that complaining

to the station will achieve nothing. Based on that and the fact that I consider the

on-air comments to be a serious breach of my privacy, I am also, by medium of

this letter, formally complaining to your Authority.

Alleging that Mr Archer had threatened to kill her and her lawyer in a broadcast

subsequent to the one complained about, she also wrote:

Please advise what your Authority is proposing to do to stop this. I would

suggest that the exceptional circumstances involved, whereby a broadcaster is

clearly intoxicated and using the airwaves to conduct a personal vendetta to

terrorise an individual member of the public, require the Authority to undertake a

review of its procedures and if necessary amend the Broadcasting Act to account

for such circumstances. In any event I would expect some conclusive urgent

action on your part to ensure that drunken outbursts will not be repeated.

Pursuant to the procedures set out in the Broadcasting Act 1989, the Authority accepted

the privacy complaint made directly to it under standard R11. It also advised Ms Archer

that the broadcaster had 60 working days in which to respond to the other aspects of the

complaint which alleged a breach of all the other nominated standards bar standard R11

(privacy).

The Authority sought the broadcaster's response to the privacy complaint. It did not

receive one. Further, Ms Archer did not receive a response to her standards complaint

(on the issues other than privacy) so after 60 working days had elapsed, she referred

those aspects of the complaint to the Authority under s.8(1)(b) of the Act.

The Authority again sought a reply from the broadcaster and, Mr Archer wrote:

I have no comment to make on this issue as it is currently before the courts along

with counter claims.

In her response to the Authority on this statement, Ms Archer advised that she

understood Mr Archer had been charged with intimidation in respect of the comments

on 28 August. It was, she wrote, a criminal matter to which "counter claims" did not

apply. She considered that the Police action reinforced her complaint about what she

said were breaches of broadcasting standards and urged the Authority to use its

maximum powers.

The Authority is aware that Mr Archer has pleaded not guilty to one charge arising from

the broadcast and the District Court hearing is set down for April. In view of

s.19A of the Broadcasting Act, the Authority considers that the complaints and the

criminal charges are distinct matters and intends to proceed to determine the complaints.

Privacy Standard

In its approach to the complaints, the Authority examines the privacy aspect first.

Decision No: 56/94 (dated 26 July 1994) it recalls, dealt with a complaint from Ms

Archer that a comment broadcast by Mr Archer on Pirate FM had been abusive. He

alleged, she said, that she enjoyed a plush lifestyle as a result of his financial

contributions to the family, and she complained that she was harassed and was called a

"silly bitch". The complaint on that occasion only alleged a breach of privacy. As the

comments which were broadcast did not contravene the privacy principles then applied

by the Authority, the complaint was not upheld.

Nevertheless, the Authority issued two Advisory Opinions as a result of that decision.

One was prepared expressly for Pirate FM and expressed the Authority's displeasure at

the broadcast. The other was addressed to all broadcasters and canvassed the issue of

broadcasts which disclosed private facts about an individual- which undoubtedly raised

privacy issues – and those where the broadcast involved untruths about an individual.

At that time, the Authority advised broadcasters that it intended to inform complainants

who alleged a breach of privacy that the issue raised might well be one of being referred

to unfairly and that a complaint should be made on that basis as well. It encouraged

broadcasters to adopt the same procedure.

The Authority has developed the applicable privacy principles since the above decision.

In Decision Nos: 1996-004–1996-006 (dated 18 January 1996), it proposed the

following two new principles. It would be a breach of privacy under the broadcasting

standards, first, when a broadcaster uses the public airwaves to abuse and denigrate an

identifiable person. Secondly, an individual's privacy would be breached by the

disclosure of the name and address, and/or telephone number, of an identifiable person

without consent. Disclosure of that information in the public interest would be an

explicit defence to the second new principle.

The broadcast considered in that Decision breached both the additional principles and

the complaint was upheld and an order for compensation imposed.

In the broadcast complained about on this occasion, Pirate FM used the airwaves to

abuse and denigrate identifiable people - the named nephew and the announcer's former

wife. Without consent, the broadcast disclosed the street address where the

announcer's family members were living and where his children were playing with the

named nephew. The complainant, the former wife, acknowledges in the complaint that

the address disclosed was hers. As the public interest defence is not relevant, the

Authority without hesitation concludes that the broadcast by Pirate FM on the afternoon

of 28 August 1995 breaches standard R11 of the Radio Code of Broadcasting Practice.

Standards – other than privacy

The Authority now considers the complaint that the broadcast breaches the other

nominated standards.

As the derogatory comments were directed at specifically named people, rather than to a

group or class of people, the Authority concludes that standard R14 (discrimination) is

not breached. While it understands why standards R22 (violence), R29 (warnings) and

R32 (sensitive material) were nominated, it does not consider them to be relevant. It

reaches a similar decision on standard R3 (protection of children) as Pirate FM is not a

station which is directed at the very young.

As many of the comments were not only abusive of the people referred to, but were also

expressed in a coarse and distasteful manner, the Authority believes that the good taste

and decency requirement in standard R2 was not complied with. Accordingly, it

upholds that aspect of the complaint.

Threatening violent behaviour shows contempt for the law and, consequently, the

Authority also upholds the aspect of the complaint which alleged a breach of standard

R6.

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

comments broadcast on Pirate FM on 28 August 1995 breach standards

R2, R6 and R11 of the Radio Code of Broadcasting Practice.

Having upheld a complaint, the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. The breaches include a breach of the privacy requirement

imposed by standard R11. Standard R11 repeats the requirement in s.4(1)(c) of the

Act. Section 13(1)(d) allows the Authority to impose an order directing the broadcaster

to pay compensation of a sum not exceeding $5000 to an individual whose privacy has

been contravened. Compensation can only be ordered for breach of privacy. The

comments made on air referred to people who were not involved with the specific

broadcast. Because of the crudity and the derogatory nature of the comments about the

complainant and the abuse of the nephew during the broadcast, together with the

disclosure of the complainant's address, the Authority imposes an order for

compensation of $1,500.

Order

For the reasons set forth above, the Authority orders Pirate FM to pay

compensation to Ms Archer in the sum of $1,500.

It is the Authority's usual practice not to publish the name of a complainant when

upholding a complaint which alleges a breach of privacy. However, given the

relationship between the announcer and the complainant in this instance, name

suppression would not be practical.

By way of general comment, the Authority expresses its strong displeasure about

broadcasters who use the air waves to deal with personal matters.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
7 March 1996

Appendix I

Ms Archer's Complaint to Pirate FM - 20 September 1995

Suzi Archer of Wellington complained to Pirate FM about some comments made by the

announcer (Derek Archer - her ex-husband) on 28 August 1995. During the broadcast,

she wrote, the announcer had threatened her and members of her family. He had said

that he was on his way to her home with a baseball bat to assault members of the family

which included a 15 year-old.

Later the same day, while in the company of the couple's nine year-old son, he made

more violent threats and derogatory references to her and women in general.

Ms Archer alleged that the broadcasts breached the privacy and good taste standards and

listed the following provisions which she considered had been contravened: standards

R2, R3, R6, R11, R14, R22, R29, and R32.

At the conclusion of her letter of complaint, Ms Archer observed that, during a

broadcast on 8 September 1995, the same announcer had threatened to kill her and her

lawyer.

Ms Archer's Complaint to the Broadcasting Standards Authority - 18

December 1995

As Ms Archer did not receive a response to her complaint, she referred it to the

Authority after 60 working days under s.8(1)(b) of the Broadcasting Act 1989.

She advised that the broadcast comments had not abated and, in view of the

considerable harassment and humiliation suffered, she asked the Authority to view the

matter seriously and use the maximum penalties available to it. She believed that the

announcer intended to continue to use the airwaves as a weapon against her.

Pirate FM's Response to the Authority - 22 December 1995

When asked to comment on the referral, Mr Archer on behalf of Pirate FM wrote:

I have no comment to make on this issue as it is currently before the courts along

with counter claims.

Ms Archer's Final Comment - 17 January 1996

See appendix II

Appendix II

Ms Archer's Complaint to the Broadcasting Standards Authority - 20

September 1995

As Ms Archer complained that the broadcast by Pirate FM on 28 August 1995 involved

the breach of her privacy, she complained directly to the Broadcasting Standards

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

The announcer (her ex-husband, Derek Archer) had not only threatened to visit her

home to inflict violence on her and members of her family, he had broadcast the

address. Ms Archer enclosed a tape of the broadcast and said a copy had been given to

the Police.

Because her ex-husband was effectively in control of Pirate FM, she doubted the value

of complaining to the station about the comments which she considered to be a "serious

breach of my privacy". She asked the Authority what it intended to do in the unusual

circumstances where an obviously intoxicated broadcaster used the airwaves "to

conduct a personal vendetta to terrorise an individual member of the public".

Pirate FM's Response to the Authority - Nil

Despite letters dated 29 September, 27 October and 24 November 1995, Pirate FM did

not respond to the Authority's requests for comment. In the final letter, the Authority

advised Pirate FM that it intended to deal with the complaint whether or not a response

was received.

Ms Archer's Final Comment - 17 January 1996

Ms Archer understood that Mr Archer had been arrested and charged with intimidating a

15 year-old and that he also faced some charges in respect to her. They were criminal

charges which did not involve a "counter claim", she wrote, and she hoped that the

Authority would use its maximum powers in respect of her complaint.