BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

An announcer on Max TV Ltd's Chat Bungalow programme broadcast on 3 March

1996 about 9.00pm used the "f" word in a joke twice and then quoted from the film

"Pulp Fiction" the expression "mother-f...".

Mr W complained to Max TV Ltd that the use of such language was inappropriate in a

programme which was aimed at younger viewers and that the broadcaster had a

responsibility to maintain some moral standards. As a result of his complaint to Max

TV, on 17 March the announcer referred to Mr W by name in what Mr W considered to

be a derogatory manner. He complained directly to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 alleging a breach of his privacy.

In spite of numerous requests for its comments on the complaint, the Authority did not

receive a reply from Max TV until after the 60 working day time limit had elapsed.

For the reasons below, the Authority upholds the privacy complaint and orders

compensation of $500 to Mr W.

Decision

The members of the Authority have read the correspondence (summarised in the

Appendix). As is its practice, the Authority determines the complaint without a formal

hearing.

In comments made on an evening show on Max TV entitled Chat Bungalow broadcast

on 3 March 1996 about 9.00pm, the "f" word and the expression "motherf..." were

used.

Mr W complained to Max TV, as is his statutory right, that the comments breached

standards of good taste and decency and were unsuitable for broadcast when children

were listening. Max TV did not respond in the manner prescribed under the

Broadcasting Act 1989, and instead, in a broadcast on 17 March 1996, one of its

presenters referred to the complaint as having come "from a little man, Mr W...". Mr

W then complained directly to the Authority under s.8(1)(c) of the Broadcasting Act that

his privacy was breached when his name was read out in what he considered to be a

derogatory manner. He advised that he did not want any further mention of his name

on air, even if used in an apology.

When Max TV finally responded to the referral, it dealt with both aspects of the

complaint – the breach of good taste and decency, and the privacy matter. To the first

complaint it accepted that the language used was not appropriate, especially in a show

which children might be watching. Max TV advised that the presenter of the

programme acknowledged that his use of language was not appropriate and undertook

to apologise publicly to Mr W. According to Max TV, no disparaging comments were

made to Mr W and there was no attempt to invade the privacy of Mr W. It advised that

the apology was an effort to assure Mr W that his complaint had been acknowledged

and acted upon.

The Authority considers that Max TV's dealings with the complainant were

unsatisfactory. The procedure for dealing with formal complaints is set down in the

Broadcasting Act. Even if, as Max TV argues, the broadcast on 17 March in which Mr

W's name was mentioned constituted an apology, it was not the appropriate response to

a formal complaint. Secondly, the Authority notes Max TV's tardiness in responding to

repeated requests for comment on the privacy complaint. Thirdly, it notes that even

though the complaint was sent the day after the broadcast in which Mr W's name was

mentioned, Max TV did not retain a tape of the broadcast. Because there is no

agreement about what was said in the so-called apology, the Authority, in the absence

of a tape, accepts Mr W's recollection of the remarks as accurate.

Assuming the remarks were as Mr W reported them, the Authority then considers

whether there was a breach of his privacy. When determining complaints under the

Broadcasting Act 1989, the Authority applies the privacy principles enumerated in its

Advisory Opinion dated 6 May 1996. It considers principles iv), v) and vi) are relevant

on this occasion. They read:

iv)    The protection of privacy also protects against the disclosure of private

            facts to abuse, denigrate or ridicule personally an identifiable person.

This principle is of particular relevance should the broadcaster use the

airwaves to deal with a private dispute. However, the existence of a

prior relationship between the broadcaster and the named individual is

not an essential criterion.

            v)    The protection of privacy includes protection against the disclosure by

the broadcaster, without consent, of the name and/or address and/or

telephone number of an identifiable person. This principle does not apply

to details which are public information, or to news and current affairs

                   reporting, and is subject to the "public interest" defence in principle (vi).

            vi)    Discussing the matter in the "public interest", defined as legitimate

            concern or interest to the public, is a defence to an individual's claim

            for privacy.

The Authority turns first to principle iv). While it is difficult to determine a complaint

without the relevant tape, as noted above, the Authority accepts Mr W's interpretation of

the remarks made. It considers that Max TV used a private fact (the identity of a

complainant and the content of his complaint) to ridicule or abuse Mr W. It also

believes that Mr W was identifiable. Consequently it concludes that principle iv) was

breached.

Secondly, the Authority considers principle v) which protects people from being named

in a broadcast without their consent. It accepts that the broadcast of Mr W's name and

initials without his consent was sufficient to identify him and thus to breach his privacy.

It therefore concludes that principle v) was also breached. It notes that the details of the

complaint were not, at that time, public information and consequently, the public

interest defence in principle vi) does not apply.

In reaching its decision, the Authority also notes with concern the attitude taken by Max

TV in its dealing with the complainant and with the complaints. It reminds Max TV that

its action in broadcasting the complainant's name amounted to intimidation, and that it

considers such behaviour reprehensible. The broadcaster's obligations when dealing

with complaints are clearly set out in the Broadcasting Act 1989 and it is bound to abide

by those requirements.

Finally, the Authority decides that as the complainant's name is of no public

importance, and as it has upheld the complaint that the broadcast of his name breached

his privacy, it will refer to him throughout the decision as Mr W.

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

Max TV Ltd's broadcast on 17 March 1996 breached s.4(1)(c) of the

Broadcasting Act 1989.

Having upheld a privacy complaint the Authority may impose an order pursuant to

s.13(1)(d) of the Broadcasting Act which provides that 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 considers that some compensation is

appropriate. It decides the appropriate amount is $500.

Order

For the reasons set forth above, the Authority orders that Max TV Ltd to

pay compensation to Mr W in the amount of $500.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
27 June 199

Appendix

Mr W's Complaint to Max TV Ltd – 5 March 1996

Mr W of Auckland complained to Max TV Ltd that its broadcast on 3 March 1996 about

9.00pm breached standards of good taste and contained material that was unsuitable for

the target audience of young people.

He objected in particular to the use of the f-word twice, and to the use of the expression

"mother-f...".

He accepted that the language was occasionally used in television programmes, but

considered it unsuitable for use in a programme which was aimed at a younger age

group. He asked that his complaint be strongly voiced to the producers and announcers

of the programme.

He suggested that the presenter had a responsibility to keep to some moral standards, or

that the programme be labelled R18.

Mr W's Privacy Complaint to the Authority – 18 March 1996

Mr W complained directly to the Broadcasting Standards Authority under s.8(1)(c) of

the Broadcasting Act 1989 that comments made the previous evening on Max TV

breached his privacy.

On 17 March 1996, he said, the presenter mentioned his name on air in what he

considered to be a derogatory manner. The words were along the lines of:

            I've had a complaint from a little man, Mr W... about the language...

Mr W pointed out that his letter of 5 March was a confidential complaint and he did not

want his name read out to thousands of listeners. He asked the Authority to consider

this complaint as a breach of his privacy.

In conclusion, Mr W advised that he did not want any further mention of his name on

the air, even if used in an apology.

Max TV Ltd's Response to the Complaints – 28 May 1996

Max TV considered that Mr W had misinterpreted the intention of the apology made by

the presenter of Chat Bungalow which was broadcast on 17 March.

Max TV explained that the situation arose out of an incident on an earlier show, where

Mr W took offence at the language used. The Programme Director expressed his

concern at the language and explained that he had shown the presenter the complaint.

He wrote:

The presenter of the show acknowledged that his use of language in a situation

where children might be watching was not totally appropriate, and assumed the

responsibility to publicly apologise to Mr W the following weekend, which he

did. During his apology the presenter made no disparaging remarks about Mr

W nor did he mention the area that Mr W lived in, and certainly made no attempt

to highlight or invade the privacy of Mr W.

Max TV acknowledged that while Mr W might not have wanted his name broadcast, the

presenter's apology was an effort to assure Mr W that his complaint had been

acknowledged and acted upon.

Mr W's Final Comment – 3 June 1996

Mr W reported that he did not see the apology to him but conceded that it might have

taken place when he changed channels. Nevertheless, he noted, he appreciated the

apology.

However, he referred back to his original letter and the reference made to him in a

somewhat derogatory fashion as "a little man, Mr W...". He asked that the Authority

view tapes of the items and advise him of its decision.