Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Robert and Jono’s Drive Show – “Wind up Your Wife” – telephone prank in which wife told husband she was getting restraining order against his mother – host pretended to be policeman – broadcaster asserted that husband and wife consented to broadcast – allegedly unfair
Standard 6 (fairness) – recording contained elements of unfairness – questionable whether recording amounted to legitimate humour – broadcaster’s processes for obtaining and recording consent insufficient – however, in the particular circumstances, it is not appropriate for the Authority to make further inquiries – reluctantly accept informed consent to broadcast was sought and obtained – not upheld
This headnote does not form part of the decision.
 A segment called “Wind up Your Wife” on Robert and Jono’s Drive Show was broadcast on The Rock at 5.30pm on Wednesday 15 December 2010. The segment involved a woman nominating her unsuspecting husband as the subject of a practical joke in order to win $500. The woman had contacted The Rock and stated:
I’ve never got along with [my husband’s] mum, it’s been going on for close to five years now, and no matter what the situation, or how childish she’s being, [my husband] always takes her side. So it’s time for some payback now, it’s time to get [my husband] properly...
 The host called the woman’s husband and pretended to be “Constable Tea Ropati” from the local police station. He informed him that his wife was currently in the process of placing a restraining order against his mother, and requested his consent to enforce the order. As the conversation progressed, the husband became increasingly upset and angry, and it was evident that he was taking the telephone call seriously. The wife spoke to him, supposedly via a speakerphone, further explaining the situation and arguing with him.
 The host interrupted the argument on a number of occasions, at one point stating, “Are we going to get signed off on this thing, because the Police Ten 7 crew are here and it’s my turn to go out in the car and they’re going to film me and I don’t want to miss that”.
 The telephone call ended when the wife threatened to get a lawyer, and her husband responded, “You might as well get a lawyer because I’m going to [expletive bleeped] move out if you’re going to carry on like this”. The host interrupted, “Whoa, let’s just back the truck up here”, before the husband stated “It’s over [wife’s name], I want a divorce” and hung up.
 A further telephone call was broadcast, in which the wife informed the host that her husband had returned home from work to collect his possessions and that she was in the other room “trying to keep the kids distracted”. The host then spoke to the husband and informed him that he had “been had” for “Wind up Your Wife”, to which he responded, “Not cool guys”, and, “I’m not happy mate, bit of a touchy subject... Jesus, you guys have sunk to a new low now man.” The host then offered the man $500 and asked if that would make him “a bit happier”. He replied that it could go towards legal fees for divorce proceedings.
 The host spoke to the wife again, who was also obviously upset. She said, “Couldn’t you guys have told him that it was a wind up a bit earlier?” The host responded, “We have done a few of these, and you will have to trust us to know that after he cools down, chances are it will all be sweet”. The item ended with the wife stating, “This is serious guys, it wasn’t meant to go this far.”
 Jonathan Albery made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the item breached Standard 6. In the complainant’s view, the item was unfair because it was based on the “wilful goading” of an unsuspecting man by his spouse, which was “facilitated, encouraged and participated in” by the programme hosts. He said that the hosts then attempted to justify their actions by stating that everything would be fine after the husband “cools down”.
 Mr Albery referred to guideline 6f to Standard 6, which prohibits the recording and broadcast of telephone conversations without the knowledge of the recipient. The complainant argued that the exceptions of legitimate humour or satire did not apply on this occasion because the broadcast was “degrading” to all parties.
 The complainant argued that guideline 6c to Standard 6 was also relevant. This provides that contributors and participants should be informed of the nature of their participation, except as required in the public interest. He questioned when a participant was required to be informed: before, during or after the broadcast, and considered that the hosts were “too carried away with the success of their joke to call a halt at the appropriate time”.
 Mr Albery emphasised that the item dealt with real people, and in his view, was likely to cause permanent and intangible damage that could not be properly rectified.
 Mr Albery nominated Standard 6 and guidelines 6c and 6f of the Radio Code of Broadcasting Practice in his complaint, which provide:
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
6c Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the nature of their participation.
6f No telephone conversation should be recorded or broadcast unless the recipient has been advised that it is being recorded for possible broadcast, or is aware (or ought reasonably to have been aware) that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.
 The broadcaster said that “Wind up Your Wife” was a legitimate and humorous segment, demonstrated by its longevity and popularity with The Rock listeners. It noted that the telephone conversations were recorded without the husband’s knowledge and in the interests of humour. The broadcaster was advised by the programme director that the husband was told about the recording before the item aired and that both he and his wife consented to the broadcast.
 The programme director stated:
The entire premise of “Wind up Your Wife” is what the title suggests – one partner plays a trick on the other. I realise we are governed by strict rules regarding audio playback and must seek approval from all relevant parties before airing. We had full permission to play audio from all parties.
 RadioWorks contended that an analysis of the transcript revealed that the hosts could not have anticipated the “sudden outcome” of the telephone call. It said that, during the call, the host’s input was “light-hearted” and that he had given “clues” that the call was a practical joke, for example, by making references to Police Ten 7. The broadcaster accepted that it became evident by the end of the call that the issue was a “highly emotive” subject, which may have prevented the husband from identifying the “clues”. It contended that the host tried to calm the husband down but that his wife continued to goad him, at which point he declared that he was getting a divorce and hung up. RadioWorks maintained that the hosts did not act unfairly given their “usual experience” in making such calls.
 The broadcaster said that feedback posted on The Rock’s website indicated that the couple were still together.
 For the reasons given above, RadioWorks declined to uphold the Standard 6 complaint.
 Dissatisfied with the broadcaster’s response, Mr Albery referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant argued that the popularity of “Wind up Your Wife” was not in and of itself a reliable guide as to what should be considered acceptable. He said that, even if the parties consented to the broadcast, the husband did not consent to the recording. He maintained that his primary concern related to the nature of the recording, rather than to the subsequent broadcast.
 Mr Albery considered that the host’s input was “carefully crafted to give credence to a false situation which clearly wasn’t light-hearted from the perspective of at least one participant”. In his view, the hosts must have anticipated the negative outcome, given that an “inflammatory response was a pre-requisite for the success” of the segment.
 The Authority asked the broadcaster to provide the following information to assist with the determination of the complaint:
 RadioWorks provided the Authority with a copy of the response from the programme director (see paragraphs  to  above). The programme director stated that all participants gave verbal permission to the hosts, and that by accepting the $500 they had also accepted a comprehensive list of terms and conditions posted on The Rock’s website. The broadcaster said that it would advise the participants that a complaint had been made about the item.
 The Authority made a further request for the names and details of the participants as well as details of their consent. It addressed the following questions and requests to the broadcaster:
 In response, the programme director stated:
There is no written consent by either party (there never is for radio content). All consent is verbal (the caller speaks to the producer and the host or hosts) and must be given from both parties. The first contact is with the person proposing the stunt (i.e. this time the wife) then, before anything is played on air, we talk with both parties and they consent. Both participants will testify to this. Payment was made via cheque to the husband who was the one being “wound up”.
When submitting the set up, participants are informed to look at all [terms and conditions] on the [The Rock’s] website, as with any competition.
 The broadcaster reiterated that “Wind Up Your Wife” was a long running “adult stunt” with extensive audience expectation and understanding of how it worked. It maintained that The Rock had an adult target audience and asserted that consent was given by “fully informed” adults prior to the broadcast. It said that well established authority confirmed that as long as participants were aware of the “general nature of the engagement and the nature of the broadcast that is all that is required by way of informed consent”.
 RadioWorks contended that radio pranks, stunts and competitions were a well established feature of commercial radio broadcasting, and argued that the Authority should be “slow to restrain that freedom”, especially where the complaint is made by an unrelated person who was not associated with the participants.
 Mr Albery maintained that his complaint related to the timing of consent. He said that the broadcaster was confusing consent to broadcast, which was not in dispute, with consent to be “exposed to risk before the fact”. He considered that the whole joke relied on the fact that the husband was “kept in the dark”.
 We have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. We determine the complaint without a formal hearing.
 On a day unknown to us but in late 2010, a man received a telephone call at his home. The caller identified himself as a Police Constable and said that he was calling from the local police station. He told the man that his wife was at the station for the purpose of obtaining what was described as a restraining order to prevent the man’s mother from having contact with the family.
 Some people would have seen this as a hoax but the man who was called did not. At one stage he asked the caller whether he was joking and the caller said he was not. The caller continued to lead the man along and to have him think that he was dealing with the police. The man’s wife participated through a speakerphone and gave a convincing performance that this was a real situation of police involvement. It is obvious that there was severe underlying tension between the husband and wife about the mother-in-law’s involvement with the family.
 The caller continued to goad the husband to the point where the husband became stressed, responded with expletives and said that he was moving out of the home and going to see a lawyer after work that day. He hung up the telephone. Attempts were made by the caller to call back and during some two to three hours no response could be obtained. By this stage it was apparent that the caller and the man’s wife were becoming anxious. Ultimately, after about four hours, the telephone at the man’s house was answered, this time by the man’s wife. She said that she had come home and found her husband packing up to leave and she was there trying to recover the situation and calm the children. The caller asked the wife to hand the telephone to the husband which she did. The caller then announced to the husband that he was one of two radio hosts who were running a radio stunt and that they had been having him on.
 The husband responded that he did not think much of what they had done and that it was a touchy subject. The husband said to the host that he had sunk to new low. The host then offered the husband $500 and asked whether that would make him happier. The husband said that it might help to pay for lawyers and indicated that he was proceeding to leave his wife. The telephone was returned to the wife and she commented that the host could have closed the hoax down earlier and that things were serious. The host said that he had experience in these matters and he offered the view that things would turn out to be alright.
 These exchanges had been recorded by the broadcaster who then saw fit to broadcast them on nationwide radio with some edits. The edits removed the surnames of the husband and the wife, the name of the husband’s mother and the town where this happened, which was said to be in the southern region of New Zealand. In the broadcast, what appear to be the true Christian names of the husband and wife were freely used.
 When this episode was broadcast on 15 December 2010, it attracted a complaint from an unconnected third party living in the North Island. His complaint was that the broadcaster had not dealt fairly with a person taking part, namely, the husband.
 We accept that there were some clues given by the radio host at the outset that this was a hoax call. It quickly became apparent however, that the person who was called had not seen those clues and that the subject matter of the call was a sensitive issue in the relationship between husband and wife. As the call progressed, this became increasingly obvious to a point where, in our view, the host should have recognised that what started off as a prank had become serious. The host nevertheless continued, but did eventually reach a point, when the husband ended the call, where he and the man’s wife could see that the situation was serious. By the time the host managed to re-establish contact with the husband, the situation within the home was further out of hand and the joke had gone very sour.
 We can well understand that the host would not have expected this outcome, but consider that as this outcome was developing he ought to have responded by backing off more quickly and by trying to correct the situation more effectively. The situation called for a careful consideration of whether the exchanges which had occurred ought to be broadcast.
 We are surprised that the broadcaster, against this background, then decided to broadcast the recorded telephone call with some deletions. This recorded call remains posted on the broadcaster’s website but we note that this is beyond our jurisdiction.
 The various positions which the broadcaster has taken in response to this complaint are set out earlier in this decision. Essentially, the position of the broadcaster is that this was legitimate humour where non-disclosure of the call being recorded and where the misleading of the recipient of the call were permissible. Moreover, the broadcaster contends, the ultimate obtaining of consent cures any inadequacies that there may have been (not that any inadequacies have been conceded).
The fairness standard
 In New Zealand, unlike in some other jurisdictions, the standards which apply and which have been accepted by broadcasters, allow an unconnected third party to complain that a broadcaster has not treated a person taking part or referred to in a broadcast, fairly. There is room for argument about whether an unconnected third party should be able to complain when the person said to be a victim has not themselves complained. We, however, need to deal with the situation as it is where such complaints are required to be considered. In doing so we make the comment that the legislation and the standards which have been developed under the legislation are concerned with public interest standards and not just about the rights of individuals who may be affected by broadcasts.
 The application of Standard 6 only arises where there has been a broadcast. It does not allow us to become involved in interactions between a broadcaster and another person in the absence of these interactions being broadcast. Thus, if in this case, the broadcaster had, on reflection, decided not to broadcast this segment, we would not have had the jurisdiction to consider any complaint in relation to these matters. Here however, the broadcaster has elected to broadcast the segment and in our view this allows us to look at what was broadcast and at the circumstances leading up to the broadcast. These circumstances can be clearly enough seen from the broadcast itself.
 Standard 6 has the general requirement for fairness and it has guidelines, two of which are particularly relevant. Guideline 6c requires participants to be informed of the nature of their participation. Guideline 6f provides that no telephone conversations should be recorded unless a recipient has been advised that the recording is being made for possible broadcast. Exceptions may apply depending on the context of the broadcast, including the legitimate use of humour.
The issue of consent
 The issue of consent arises first in relation to the telephone conversation which was recorded without the recipient having been informed of the recording. If a telephone call is recorded without the knowledge of the recipient and what was recorded was not legitimate humour, then the subsequent informed consent to that call being broadcast would be a powerful response to any complaint about unfairness in the recording of the call. If, quite apart from any issue relating to the recording of the telephone call, it is said that a person(s) taking part or referred to has been treated unfairly, the informed consent by that person(s) to the broadcast would be a compelling counter to any allegation of unfairness.
 We have sought to investigate the nature of this consent as the record in this decision shows. We have been met only with a statement that the broadcaster had obtained the oral consent of the husband and that, in any event, by accepting the sum of $500 there was acceptance of terms posted on the broadcaster’s website which allowed the broadcaster to broadcast what it liked. The broadcaster also indicated that the participants did not wish for their details to be passed on to the Authority, to enable us to make our own inquiries.
 There are several components to informed consent. First, consent should be informed in the sense that the person giving it understands what it is that they are being asked to consent to. Secondly, they must understand that they have a choice whether to consent or not. Finally the consent must be true or free in the sense that the person giving it does so without any improper pressure.
 The depth and quality of the informed consent needed varies according to the particular circumstances. An informed consent to a major surgical procedure is something very different to an informed consent in relation to the broadcast of material such as this. Nevertheless, we consider that in this case a reasonable level of informed consent was required having regard to the nature of the proposed broadcast. The broadcast would seemingly have a number of effects. It would allow what was a private matter to become public. It would appear to allow the identification of the participants through the disclosure of their Christian names. It would make public the fact of there being stressful issues within the family. It would put the mother-in-law’s circumstances within the family into the public arena. It would disclose what appeared to be the beginning of a separation process and it would disclose, in a public way, the fact that the family, including the children, had become destabilised.
 The broadcaster, having declined to give us the names and addresses of the parties, has denied us the ability to make our own sensitive inquiries. This leaves us in a position where we have no adequate evidence on what is an essential feature of this complaint and on what is an essential component of the defence of the broadcaster to the complaint.
 We are concerned that the consent may have been superficial and not properly informed. We have not been told how the issues of consent were put to the parties. We have not been told how the consent of the husband to the continued surreptitious recording of the broadcast was dealt with. We have been told that there is no record of the consent in writing or on audio tape and that this is usual practice.
 The broadcaster has relied upon the terms relating to this segment set out on its website. As we understand the position of the broadcaster, it is that these are posted terms of contract such that anybody who has notice of them, and then proceeds, can be assumed to have accepted the terms. The concept of posted terms involves the proposition that the terms must have been seen and understood or ignored by the person said to be bound by them. In this case, on the broadcaster’s website there are some posted terms which are called “Generic Promotion or Competition Rules”. These are not particularly relevant to this broadcast. There is however, on the homepage, a link to the segment “Wind up your Wife”. Merely going to that link will not of itself disclose any terms and conditions for the segment. To get to these terms and conditions one has to go to a link addressed to those who want to initiate a prank. When a person who wants to initiate a prank seeks more information, the terms and conditions applying to “Wind up your Wife” are disclosed in what can fairly be described as fine print. Condition 2 states:
By participating in the Promotion, nominators and nominees grant The Rock permission to use their names, characters, photographs, wind up audio, voices and likeness in connection with the Promotion and for future information and marketing purposes and waive any claims to royalty, right or remuneration for such use.
It can be seen that this term, which is put before nominators, seeks to extract the consent of other people out of the participation of the nominator.
 This complaint and the broadcaster’s response raise the question of whether in the case of manifest unfairness, a subsequent consent can cure this unfairness to allow the episode to be broadcast. Each case will depend on its facts. We can envisage a situation where what has happened is so unfair and so unsuitable for broadcast that standards require it not to be broadcast even if an informed subsequent consent can be obtained.
 We are concerned that the husband, the wife, their children and the husband’s mother, were identifiable. That they were identifiable seems to be apparent from RadioWorks decision, where it is said:
Feedback on the Rock’s website indicates that the couple are still together.
All of these people were affected by the prank and by its broadcast to different degrees. We remind ourselves that the complaint has been directed at unfairness to the husband. However, when we look at the overall context we feel obliged to raise wider issues relating to the consent of others affected by the broadcast, in a questioning, but not determining way. We find it hard to accept, on nothing more than the broadcaster’s statement, that the husband and the wife gave informed consent to the broadcast of the information about them and, in the case of the children, informed consent was given on their behalf. We doubt whether the question of the mother’s informed consent was addressed by the broadcaster at all.
 We have approached the issue of consent in a careful and searching way. In doing so we have had regard to the need for the practicalities of broadcasting to be considered and for us not to put arcane and legalistic requirements on broadcasters. We come however to the point that when a broadcaster is claiming consent to what appears on its face to be unfairness to somebody participating in or referred to in a broadcast, it is for the broadcaster to demonstrate that consent. Here we have been referred to what is really a series of Chinese boxes and we are told that the consent can be found within these boxes. When we have asked the broadcaster to show us the consent we have been told that it is there somewhere.
Pranks in broadcasting
 We accept that this genre of prank is part of life and that it has become an accepted part of broadcasting. We realise that for pranks of this kind to have any value for entertainment purposes they must have some cut or bite. We accept that nobody should become too precious about these things, nor should anybody be unduly sensitive or overly protective.
 We are familiar with this programme and we believe that we understand the context out of which this complaint has come before us. The various pranks which form part of this programme vary one to another. Some of the pranks are very humorous and show radio as entertainment at its best. This particular prank is not of that character. We do not wish to throw a wet blanket over humorous pranks in broadcasting. We affirm the value of such pranks as legitimate humour so long as a line is not crossed.
 The line that we think should not be crossed, is the line where something goes from being funny and amusing, and even awkwardly funny and amusing, to something where there is real and lasting pain or damage, or a reasonable risk of it. We therefore think that situations where there is fleeting embarrassment or discomfort, or where somebody is made to look foolish, will usually be unobjectionable. However, where a hoax innocently enough started, turns sour and there is some significant harm being done or likelihood of it, the boundary of legitimate humour has been crossed. What then occurs may be amusing to some people as part of human nature but we do not think that it will be legitimately amusing. Ultimately each case will have to be determined according to its context and particulars. When a hoax has gone wrong and has caused or could cause significant harm then that hoax is not legitimate humour and it should not, in our view, be broadcast.
 A part of this prank involved the host pretending to be a Police Constable. We draw the broadcaster’s attention to the provisions of the Policing Act 2008, section 48(1) which provide:
(1) A person commits an offence who, without reasonable excuse, and in circumstances likely to lead a person to believe that the person is a Police employee:
(a) pretends to be a Police employee by his or her words, conduct, or demeanour; or
(b) assumes the name, designation, or description of a Police employee.
We do not know whether the implications of these provisions were considered or indeed whether the broadcaster had any awareness of them. We question whether a broadcaster should be doing something which may be in breach of this provision. It seems likely that for a broadcaster to act unlawfully in relation to a person being dealt with would be unfair. These factors heighten our concern that this broadcast was ill-conceived.
 We are conscious that the complaint was not made by those who participated in the broadcast, nor any person referred to in the broadcast. Ordinarily, a complaint of unfairness gives us an opportunity to involve the person said to be the victim of the unfairness in the process of dealing with the complaint. Here, we are in a situation where we are being asked to evaluate the fairness of the broadcast to third parties. We have decided not to exercise the powers available to us and involve third parties by making inquiries about the consents said to have been given. We do not wish to intrude into their lives and revive stresses which we hope have settled.
 Without having gone the further distance of pursuing the issue of consent which is fundamental to the broadcaster’s defence, we are obliged as a matter of proper process in relation to this complaint, to reach the point where we cannot uphold the complaint.
 This outcome has come about because of the way in which the broadcaster has chosen to put information before us and it reflects our reluctance in these particular circumstances to exercise our powers of further inquiry. It will be seen that we have considerable reservations about what has happened here. We have decided to express these concerns notwithstanding that we have not upheld the complaint.
 We conclude by asking the broadcaster to review its practices, to have regard to issues surrounding consent, to recognise that there is a line between legitimate and unacceptable humour and to carefully consider the impact of its actions on those who participate in or are referred to in such pranks. We give notice that on any future occasion we are likely to require the existence of consent to be demonstrated to an extent greater than our merely being told that consent was obtained.
 A minority of the Authority (Leigh Pearson) would also not uphold the complaint, for the following reasons. While the minority understands the complainant’s concerns about the “Wind up Your Wife” stunt, Ms Pearson notes that the fairness standard can only be assessed against what was actually broadcast. Had the prank call been recorded, but never broadcast, this Authority would have no jurisdiction to consider whether the participants were treated fairly.
 On the matter of consent, RadioWorks has informed the Authority, and the complainant has accepted, that the husband was advised of the recording before the item aired. He and his wife provided verbal consent to the conversation being broadcast and accepted a payment of $500. According to the broadcaster, acceptance of this money also meant that the participants accepted a comprehensive list of terms and conditions set out on The Rock’s website.
 The complainant nominated guidelines 6c and 6f to Standard 6 in his complaint. As the husband was told about the recording before the item aired, the minority considers that he was informed of the nature of his participation as required by guideline 6c. With regard to guideline 6f, Ms Pearson is of the view that “Wind up Your Wife” is a long-running and popular segment on The Rock, amounting to “legitimate humour”, which is exempt from the prohibition against covert recording of telephone conversations.
 Having considered the information provided by RadioWorks, the minority accepts that the broadcaster sought and obtained the participants’ consent to broadcast the telephone conversation. On this basis, the minority finds that the broadcaster did not treat the participants unfairly in breach of Standard 6.
 In the minority’s view, the issue of consent should not extend on this occasion to members of the family of the participants. Ms Pearson also sees no issue with the possible identification of the participants; identification is relevant to a potential breach of privacy, and is not the test under the fairness standard. Privacy has not been raised in connection with this broadcast.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
18 October 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Jonathan Albery’s formal complaint – 15 December 2010
2 RadioWorks’ response to the formal complaint – 15 March 2011
3 Mr Albery’s referral to the Authority – 28 March 2011
4 RadioWorks’ response to the Authority – 27 April 201
5 Authority’s request for further information – 11 May 2011
6 RadioWorks’ response to the Authority’s request for further information – 11 May 2011
7 Authority’s second request for further information – 19 May 2011
8 RadioWorks’ response to the Authority’s request for further information – 7 June 2011
9 Mr Albery’s further submissions – 15 June 2011
10 RadioWorks’ final comment – 14 October 2011