BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Derek Archer, the station manager and announcer at Pirate FM, made a number of

derogatory references on-air on several occasions in February 1994 about his wife from

whom he was separated. Specifically between 5.00–6.00pm on Friday 18 February he

used his wife's name and said, among other things, that she was a "silly bitch". On 21

February, he referred to her and played a song containing her name.

Explaining that she was legally separated from Mr Archer, Mrs Archer complained to the

Broadcasting Standards Authority that the comments breached her privacy in

contravention of s.4(1)(c) of the Broadcasting Act 1989.

Despite three written requests from the Authority for comment, Pirate FM did not reply

and, after 60 working days, the Authority proceeded to determine the complaint.

For the reasons given below, the Authority declined to uphold the privacy complaint.

Decision

The members of the Authority have read the complaint from Mrs Archer (summarised in

the Appendix). As Pirate FM has not responded to the Authority's requests for information

or a tape of the broadcasts complained about, the Authority has no other material.

Mrs Archer complained that some comments made on-air by her former husband – an

announcer on Pirate FM – (from whom she was legally separated) breached her privacy.

The comments, listed in the Appendix, involved personal abuse and questioned her honesty,

reliability and morality. Mrs Archer explained that all the comments were untrue.

Because Pirate FM has not replied to the three requests from the Authority for its

comments on the complaint and as 60 working days have elapsed since the complaint was

received, the Authority has proceeded to determine the complaint. It would also point out

that because Pirate FM has not responded, it has not been supplied with a tape of the

broadcast complained about.

The Authority noted, however, that the item complained about is not the type of broadcast

for which a radio station is required to retain a tape for 35 days and thus, even had Pirate

FM replied, the Authority could well have been required to decide the complaint without

listening to the item.

In deciding the complaint, the Authority has accepted that the comments which Mrs

Archer has complained about, although perhaps not precisely the words broadcast, record

the tenor of the remarks broadcast by Pirate FM.

In an advisory opinion issued to the broadcasters (dated 25 June 1992) the Authority

recorded the principles it intended to apply to complaints which alleged an invasion of an

individual's privacy. Principles (i) and (ii) refer to the disclosure of private facts and, as

Mrs Archer complained about the untrue abuse broadcast by Pirate FM, neither was

relevant. Prying, the matter addressed in principle (iii) does not arise and the defences of

public interest and consent in principles (iv) and (v) are also inapplicable.

Under the privacy principle in s.4(1)(c) of the Broadcasting Act 1989, broadcasters are

required to maintain standards consistent with:

(c) The privacy of the individual.

The essence of the principle is its protection of sensitive factual material, the disclosure of

which is highly offensive. As the complaint was made on the basis that the material

broadcast was untrue, the Authority concluded that s.4(1)(c) had not been contravened.

For the reasons set forth above, the Authority declines to uphold the

privacy complaint.

Although the broadcast did not breach the privacy standard, the Authority was appalled

that a broadcaster should abuse the airwaves to make personal comments in this manner.

It has prepared an Advisory Opinion for Pirate FM expressing its displeasure and has sent

a copy to the Ministry of Commerce, the government department which is responsible for

the administration of the Broadcasting Act. In addition, the Authority intends to

distribute the Advisory Opinion to those who receive its decisions.

This decision has raised another matter which has occurred in a number of other

complaints received by the Authority which allege a breach of privacy. In its preparation

and subsequent application of the privacy principles (mentioned in the decision above), the

Authority has taken great care in balancing the conflict between the public's right to know

and the individual's right to keep some matters private. Sometimes, when an individual

would prefer that a matter remains undisclosed, a breach of privacy is alleged. The

broadcaster responds by stating that disclosure was in the public interest or, in fact, the

disclosure dealt with matters which were already in the public arena.

There are other occasions, as occurred in this instance, when the matters disclosed by the

broadcast are untruths. To the complainant, such broadcasts involve a breach of privacy.

Whereas public interest might be sufficient to counter the alleged breach of privacy when

a fact is disclosed, it does not deal with the possible complaint that the broadcaster has, in

addition to allegedly breaching a person's privacy, dealt with the complainant unfairly and

unjustly in contravention of the broadcasting standards. This concern is of particular

relevance with the disclosure of untruths - as occurred in the current instance.

In an attempt to confront this source of dissatisfaction felt by complainants, the Authority

is preparing another Advisory Opinion for all broadcasters outlining how it intends to deal

with this situation. The Opinion encourages broadcasters to adopt a similar approach.

In view of the very unpleasant content of the broadcast which Mrs Archer complained

about, the Authority also notes in this instance that a complaint under standard R2 –

alleging a breach of currently accepted norms of language and behaviour – would

probably have been upheld.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
26 July 1994

Appendix

Mrs Archer's Complaint to the Broadcasting Standards Authority

In a letter dated 14 March 1994, Mrs Archer of Wellington complained to the

Broadcasting Standards Authority that a number of broadcasts on Pirate FM breached her

privacy. Allegations under s.4(1)(c) of the Broadcasting Act 1989 that a broadcast

breached an individual's privacy are the only complaints which may be made directly to

the Authority.

Recalling that she and Derek Archer had been legally separated in 1990 and at the time it

had been necessary to obtain non-molestation orders, Mrs Archer said the harassment she

had suffered from her former husband had fallen away until he had started broadcasting

on Pirate FM from Roseneath in 1993.

After some derogatory references on-air from Derek Archer about his "ex-wife" in early

February 1994, Mrs Archer said she had spoken to both Mr Archer and to Mr Ryan, the

licence-holder, to ask that the comments cease.

Nevertheless, on 18 February between 5.00 - 6.00pm Derek Archer had referred to her by

name on-air and had stated:

"- That he could never find me and that I was always out. However, I was

guaranteed to ring at 10am Saturday morning.

- That he paid for my world trip and my ski trip to Colorado.

- That I could always be found at the place in Courtenay Place with the

flames outside.

- That I was a silly bitch.

- That I was always ringing the station.

- That next he would start talking about where I work."

The comments were untrue, Mrs Archer continued, and she had complained to the Police,

reporting:

One of the constables spoke to Derek but did not get any co-operation. He was told

that Derek had only made general jokes about ex-wives, much like mother-in-law

jokes. That statement was untrue. The constable asked him to refrain from

referring to me at all.

On 21 February on-air, Mrs Archer said, Derek Archer said he was not allowed to

mention his wife's name and observing, "so I'll let the Everley Brothers do it for me" played

a song containing her name. Mrs Archer added:

He also referred to the Police having spoken to him and rambled on about the Bill

of Rights and the Broadcasting Standards Authority having no power to do

anything to him.

Mrs Archer said the comments had been brought to her attention by a client and colleague

and she was concerned that people with whom she worked would suffer the same

embarrassment she had.

Pointing out she did not have the financial resources to sue for defamation and that Mr

Archer was bankrupt anyway, she expressed her anger at what she called his "personal

vendetta" which severely infringed her privacy. She concluded:

I also seek compensation from the Broadcaster for the humiliation caused to me

and the infringement of my privacy.

Further Correspondence

As is its practice, the Authority sought comment on the complaint from the broadcaster. A

letter dated 17 March 1994 was sent both to Mr Archer as Station Manager and Mr Ryan

as licence holder. Neither letter drew a response and a reminder was sent to Mr Archer as

Station Manager on 10 May. Again there was no response and, in a letter dated 2 June,

Mr Archer was advised that the Authority intended to determine the complaint and, unless

a reply was received by 8 June, it would be decided without his comments. There was no

reply to that letter.