BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Interest in the Wearable Art Awards in Nelson was such that tickets for the show

were hard to find. Radio Fifeshire FM, one of the sponsors of the event, was

informed that a listener had tickets available to sell. When, on 26 September 1996 at

about 8.30am, the announcer called to ask if the tickets were still available, the

conversation was recorded and played on-air.

Mrs Dale, the person whose conversation was recorded, complained to Fifeshire FM

Broadcasters Ltd that her privacy had been breached and, because the conversation

was taped without her knowledge or consent, she alleged that standard R34 of the

Radio Code of Broadcasting Practice had been breached.

Fifeshire FM advised that its announcer telephoned Mrs Dale to ascertain whether she

still had tickets available for the Wearable Art Awards, and acknowledged that the call

was made live on-air. It also acknowledged that the conversation went to air without

prior permission and thus was in breach of standard R34. Fifeshire FM offered to

forward an official apology in writing, as well as an apology from the announcer. It

declined to uphold the privacy complaint.

Dissatisfied with that response, Mrs Dale referred the complaint to the Broadcasting

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

For the reasons below, the Authority agrees with the broadcaster that standard R34

was breached. It declines to uphold the privacy complaint.

Decision

The members of the Authority have listened to a tape of the item complained about

and have read the correspondence (summarised in the Appendices). As is its practice,

the Authority determines the complaints without a formal hearing.

Because of the high degree of public interest, tickets for the Wearable Art Awards in

Nelson were difficult to obtain near the date of ceremony. Radio Fifeshire FM is one

of the sponsors, and when Mrs Dale rang on 24 September to say that she had a

number to tickets for sale, it agreed to broadcast her telephone number without charge

to advise listeners that she had some tickets for sale.

On 26 September, at 8.30am, Radio Fifeshire FM's announcer telephoned Mrs Dale

to ascertain whether she still had tickets for sale. That call was on-air and the

announcer did not answer a direct question from Mrs Dale as to whether that

telephone call was being broadcast.

When Mrs Dale confirmed that the telephone call had been broadcast on-air without

her permission, she complained directly to the Authority that recording the

conversation, and broadcasting it, involved a breach of her privacy in contravention of

s.4(1)(c) of the Broadcasting Act 1989. That provision requires broadcasters to

maintain standards consistent with the privacy of the individual. She also complained

to Radio Fifeshire FM that the broadcast breached standard R34 of the Radio Code of

Broadcasting Practice. It reads:

R34  No telephone conversation with a member of the public is to be broadcast

without that person's permission when statements by a member of the

public are intended to be "on the record" for the purposes of news and

current affairs or community comment; the person concerned should be

advised if a conversation is to be recorded for possible broadcast.

Radio Fifeshire FM upheld the complaint that the broadcast breached R34. It offered

a written apology from management and one from the announcer involved in the

incident.

Pointing out to the Authority that it had been unable to find Mrs Dale's name either in

the Nelson telephone directory or on the Nelson Electoral Roll, Radio Fifeshire FM

suggested that the name used had been an alias. It argued that it was not possible to

invade the privacy of a person who used an alias.

Explaining that she was entitled to her privacy by having an unlisted telephone

number and that she was entitled to use her married name, Mrs Dale deplored the

insinuations in the broadcaster's letter.

The Authority agrees with the broadcaster that the broadcast involved a breach of

standard R34. It notes that the standard requiring advice to the caller specifically

refers to items of news or current affairs and allows, for example, unannounced calls to

competition prizewinners. In view of the reference in the standard to "community

comment" and the broadcaster's acknowledgment that the broadcast involved a breach,

the Authority endorses the broadcaster's decision. It also considers that the action

proposed by the broadcaster is appropriate in the circumstances.

Turning to the privacy complaint, the Authority focusses on the disclosure of Mrs

Dale's telephone number. The Authority notes that as Mrs Dale divulged her

telephone number to enable prospective ticket buyers to call her, she consented to the

disclosure of her telephone number. Taking into account privacy principle (vii)

applied by the Authority, it does not uphold the privacy complaint. Principle (vii)

reads:

vii) An individual who consents to the invasion of his or her privacy, cannot

later succeed in a claim for a breach of privacy.

Mrs Dale also expressed her concern that Radio Fifeshire FM had recorded her phone

call. Recording a telephone conversation in itself, the Authority notes does not

constitute a breach of the Radio Code of Broadcasting Practice. However, not

retaining a tape of any material which is broadcast may transgress the Code as

standard R35 provides:

R35 For a period of 35 days after broadcast, radio stations shall hold a

recording of all talkback and open line programmes and a copy or tape of

news and current affairs items.

On this occasion standard R35 was complied with.

For the reasons above, the Authority agrees with the decision of Fifeshire FM

Broadcasters Ltd to uphold the standard R34 complaint. It declines to uphold

the privacy complaint.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
21 November 1996

Appendix I

Mrs Dale's Complaint to the Broadcasting Standards Authority - 29 September 1996

Mrs R Dale of Nelson complained directly to the Broadcasting Standards Authority

alleging that her privacy had been breached by a broadcast by Fifeshire FM

Broadcasters Ltd. The broadcast, on Radio Fifeshire FM, on 26 September 1996

about 8.30am, involved the playing live of her telephone conversation with one of the

station's announcers.

Mrs Dale explained that she had had tickets for the Wearable Art Awards show and

had advertised them through the radio station. When the announcer called, she advised

that she had been trying to ring the station to tell them that all of the tickets had been

sold. She continued:

I was asked some questions including my name and questions became more

intimidating as if the questioning person was trying to trap me into making

some sort of admission he had in mind.

I was getting some rather funny vibes and asked him if this was going live on

air. He dodged the question and continued to give the impression it was a

normal telephone conversation. I felt uncomfortable with this and the

conversation ended.

Later, Mrs Dale wrote, she spoke to another person at the station who informed her

that the conversation had been broadcast.

Mrs Dale complained that her privacy was breached and she was denied the right to

refuse to be interviewed live on-air and the conversation was taped without her

knowledge or consent. She considered it was dishonest of the announcer not to give

her the opportunity to refuse to be interviewed live on-air.

Mrs Dale believed she should be compensated for the stress and embarrassment

caused.

Radio Fifeshire FM's Response to the Authority - 10 October 1996

In its response to the Authority, Radio Fifeshire FM first gave some background

information. It noted that the Wearable Art Awards was a major annual event in

Nelson and that it was one of the leading sponsors. Tickets had been sold out some

three months before the event and there was strong public demand for spare tickets in

the two weeks prior to the event.

On Tuesday 24 September, Mrs Dale telephoned Fifeshire FM's on-air line and spoke

to the announcer advising that she had a number of Wearable Art tickets for sale.

Apparently she implied that she had a number of them and was unwilling to state the

price she wanted. The announcer agreed to make some announcements on her behalf

at no cost. Over the next two days five or six announcements were made that tickets

were available and the telephone number was broadcast.

On 26 September, at about 7.50am, the announcer said he would shortly announce

where tickets were available. During the news at 8.00am a caller advised that the

tickets had sold out. Unsure whether this was correct, the announcer telephoned Mrs

Dale to clarify the situation. The call was made live on-air.

Later that day, Mrs Dale telephoned Fifeshire FM and advised that she was unhappy

that the telephone conversation had gone to air without her knowledge or approval.

During her discussion, Mrs Dale was told that the conversation was recorded on tape.

Fifeshire FM noted that recording on-air activity was standard practice and not done

specifically for Mrs Dale's telephone call.

Mrs Dale requested a copy of the tape.

Fifeshire FM advised that until a complaint was received in writing it decided not to

forward a copy of the tape. When the complaint was received - on 10 October -

Fifeshire advised that it responded by supplying a copy of the tape, acknowledging

there was a breach of standard R34 and offering a written apology from both the

station and the announcer.

Mrs Dale's Referral to the Authority - 15 October 1996

Mrs Dale expressed surprise that when she had telephoned the station on 24

September, she had spoken to the announcer on the on-air line. She explained that she

had telephoned the station to advise that she had tickets for the Wearable Art show

and the receptionist put her through to the announcer. Mrs Dale questioned why, if

the receptionist had a list of 30 people wanting tickets, she was put through to

someone else.

After talking to the person, Mrs Dale said that she was left with the impression that

her name and phone number would be passed on to anyone wanting tickets. She had

not realised he was intending to broadcast her name and number and, had she known

he was intending to do that, would have turned him down.

Mrs Dale argued that if the station did broadcast her name and number it did so

without her permission and knowledge and therefore it was a breach of her privacy.

She had no idea that she was speaking on the on-air line.

Mrs Dale requested a formal apology from Fifeshire FM and the announcer for the

breach of standard R34 and for the breach of her privacy. She also requested that both

be fined a sum to be determined by the Broadcasting Standards Authority, and that

she be compensated for the stress and embarrassment caused by the broadcast and in

addition to be compensated for the breach of her privacy.

Radio Fifeshire FM's Response to the Authority - 23 October 1996

When it forwarded a copy of Mrs Dale's 15 October letter to Radio Fifeshire, the

Authority asked specifically for a response to the complaint that the broadcast

involved a breach of privacy.

In its report to the Authority, Radio Fifeshire declined to uphold that matter.

Moreover, it wrote, as it would find no record of Mrs Dale either in the Nelson

telephone book or on the Nelson Electoral Roll, it deduced that the name was an alias.

It added:

Therefore it is difficult to believe anyone's privacy can be breached if indeed

an alias has been used.

As for the other matters raised, it said, first, that it was irrelevant whether the

receptionist had a lot of people wanting tickets, and secondly, the announcer who

took Mrs Dale's call was adamant that Mrs Dale knew that it would be advertised on-

air.

It concluded by again offering written apologies for the breach of standard R34.

Mrs Dale's Final Comment - 25 October 1996

Objecting to the tone of the broadcaster's letter, Mrs Dale said her telephone number

was unlisted as she valued her privacy. As for what she described as the

"insinuations" regarding her name, she said that it was her married name and she had a

marriage certificate to prove it.

Arguing that the correspondence must keep to the issues, Mrs Dale stated:

They have admitted a breach of R34. It is up to your committee to rule on

that. I will abide by their decision. I feel that I must make a stand against the

sheer arrogance of radio announcers thinking they can say and do almost

anything on air - point scoring and causing me embarrassment and upset trying

to implicate me in something and invading my right to privacy along with my

right to have a private telephone number.

My voice was recognisable on air causing comment especially in view of the

announcers leading comments trying to implicate me in something causing

embarrassment, stress and upset. I don't need that. Again it is up to your

committee to decide if Radio Fifeshire has breached my rights to privacy.

Fifeshire thinks it has not but I feel that they have. Once again I will abide by

your committee's decision.

Appendix II

Mrs Dale's Complaint to Fifeshire FM - 4 October 1996

In a letter dated 4 October, Mrs Dale complained that the broadcast by Fifeshire FM

Broadcasters Ltd on 26 September 1996 breached standard R34 of the Radio Code of

Broadcasting Practice because the conversation was broadcast without her consent.

Radio Fifeshire FM's Response to the Formal Complaint - 10 October 1996

Radio Fifeshire advised that it had investigated the matter and offered the following

background information. First, it noted that Mrs Dale had requested the station

broadcast the fact that she had tickets available for the show. Secondly, it confirmed

that the telephone conversation was broadcast without her consent. Fifeshire FM

concluded that that was a breach of standard R34.

In addition, Radio Fifeshire noted that the conversation was taped. It advised that the

taping of the breakfast session was an ongoing requirement and was done to ensure

that there was a record of everything that went to air. It pointed out that it was not

done specifically for the conversation with Mrs Dale, adding:

My investigations reveal that it is illegal to record a telephone conversation and

then later use the recording for broadcast without the person's knowledge it

will be used in such a manner.

I therefore conclude there has been no breach of any broadcasting standards in

this instance.

With respect to Mrs Dale's request for a tape, Radio Fifeshire advised that it decided

that until an official complaint was received, no tape would be forwarded. It did not

consider Mrs Dale's request to an announcer for a copy of the tape to be an official

complaint.

Fifeshire FM offered to forward an official apology in writing and a written apology

from the announcer expressing his regret for the incident.

Mrs Dale's Response to the Authority - 15 October 1996

The letter and the further correspondence is summarised above in Appendix I.