BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The talkback host asked callers for their views on the possible reinstatement of

corporal punishment in schools on Newstalk ZB on 3 February 1997 between 9am and

12 noon. The host commented about his own schooling at St Bede's College, and

referred by name to the man who had been given the duty of administering corporal

punishment there, and his attitudes towards that duty.

St Bede's College, through its solicitors, complained to Newstalk ZB, part of The

Radio Network, that the broadcast contained disparaging comments about corporal

punishment at the college, and that comments made about the staff member were

libellous and would support a defamation action.

As The Radio Network had failed to respond substantively within the required 20

workings days set out in the Broadcasting Act 1989, the College complained to the

Broadcasting Standards Authority under section 8 (1)(b) of that Act.

The Radio Network, through its solicitors, rejected any basis for a defamation action.

It did not consider that the remarks adversely affected the College's reputation,

particularly since corporal punishment had long been abolished. It stated that

comments made by the host were his honest opinion, which opinion was widely

shared by a number of past pupils of the school.

St Bede's College was not satisfied with the reply and requested further investigation

and review by the Broadcasting Standards Authority. When the Authority requested

a response to the complaint, the Network explained that the delay in response was

because of the complainant's intention to initiate defamation proceedings. It then

responded to the standards and privacy complaints, upholding the complaint that the

broadcast was unfair. St Bede's College responded that it was dissatisfied both that

the Network had failed to deal with the complaint, and with the response on the

alleged broadcasting standards breaches. It sought costs and compensation for breach

of privacy.

For the reasons given below, the Authority declines to uphold the 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 Appendix). On this occasion,

the Authority determines the complaint without a formal hearing.

Comments made by a talkback host about his experience of corporal punishment

while a student at St Bede's College were broadcast on his programme on Newstalk ZB

on 3 February 1997 between 9.00am and 12 noon. The host named one teacher who,

he claimed, appeared to enjoy administering corporal punishment.

Through its solicitors, St Bede's College complained that it had received information

that disparaging comments about corporal punishment previously administered at the

school identified one present staff member, and advised that it considered such

comments libellous and would support an action in defamation. It sought an

immediate apology on air and in writing. Failure to provide the apology would, it

advised, aggravate the situation and be a matter taken into account in any subsequent

proceedings. It added that the matter was to be treated as a complaint under the

provisions of the Broadcasting Act.

When no response to the complaint was received, St Bede's College referred the

complaint to the Broadcasting Standards Authority under s.8(1)(b) of the

Broadcasting Act. The solicitors for St Bede's asked the Authority to get a response

to the original complaint so that they could advise the College whether to issue

proceedings.

The solicitors acting for The Radio Network responded to the complaint, by first

asking in what respect it was alleged there had been a breach of programme standards.

They then dealt with the allegation of defamation. They advised that the Network did

not accept that the host's remarks were actionable. They did not believe the remarks

would adversely affect the College's reputation, since corporal punishment had long

been abolished. As far as the staff member was concerned, the host's comments were

his honest opinion and, it added, it was an opinion widely shared by other past

pupils.

In dealing with the allegation of defamation, the Network noted that the host had

discussed the matter with the solicitors for St Bede's, but denied that he had offered

to send letters of apology to the College and the staff member concerned. That, it

said, was a matter for the station to decide.

A response from the solicitors for St Bede's did not accept any matters raised by way

of justification. They requested a copy of the tape of the broadcast so they could

take the matter further.

When this correspondence was referred to the Authority, it sought submissions on the

standards matters raised. Since no standards were identified by St Bede's College,

The Radio Network identified what it considered to be relevant. It then dealt with the

complaint under the following standards in the Radio Code of Broadcasting Practice,

which 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.

R5 To deal justly and fairly with any person taking part or referred to in

any programme.

R6 To respect the principles of law which sustain our society.

R9 To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature,

making reasonable efforts to present significant points of view either in

the same programme or in other programmes within the period of

current interest.

R11 To respect the privacy of the individual.

The Network did not consider that standard R2 had any relevance to the complaint,

since it relates to the context of language and behaviour.

The Authority concurs with The Network's view that this standard is not relevant. It

is a standard which applies to propriety and not, as St Bede's would argue, to issues

surrounding allegations of defamation, which are outside the Authority's jurisdiction.

It declines to uphold this aspect of the complaint.

With respect to standard R6, which relates to the maintenance of law and order, the

Network responded that it was not relevant to the complaint. St Bede's College

disputed that finding because it considered that one of the principles of law was a

person's right to their good name.

The Authority does not find the standard relevant to this complaint. Although it has

been alleged that the teacher was defamed, there has been no finding that any law has

been breached. It declines to uphold this aspect of the complaint.

Although it considered it arguable whether St Bede's College had lodged a complaint in

respect of standard R5 – the standard which requires fair and just dealing with named

individuals – The Radio Network upheld this aspect of the complaint. It accepted that

stating that a named teacher gained "some sadistic pleasure" from administering

corporal punishment, without offering him the opportunity to reply, was a breach of

the standard. It offered to broadcast an appropriate apology or provide the school

and teacher with a written apology.

In its response, St Bede's did not indicate whether that was a satisfactory resolution,

and drew the Authority's attention to the fact that an apology had been promised six

months previously.

The Authority considers the offer of an apology to be an appropriate remedy and

believes the action taken by the broadcaster was sufficient. It is unclear whether the

complainant has referred this aspect on the basis of dissatisfaction with the

broadcaster's action, or whether the offer of an apology was acceptable.

Nevertheless, the Authority considers the apology should be made, both on air and in

writing, as proposed by The Radio Network.

The question of balance is the matter raised under standard R9. The broadcaster

suggested that the rule did not apply in this situation, since the issue of corporal

punishment was no longer controversial. The complainant pointed out that the issue

was not the question of corporal punishment, but the allegations made about the

school and the named teacher.

The Authority concludes the standard is not relevant in this complaint because it

hinges on the question of fairness, dealt with above under standard R5. It therefore

declines to uphold this aspect of the complaint.

Finally, the Authority turns to the issue of privacy. When the Authority deals with

complaints alleging a breach of privacy, it applies a set of privacy principles which it

has developed.

The Network contended that the issue of corporal punishment in schools was a public

matter and therefore privacy was not an issue. If it was, however, which it denied,

The Radio Network considered that privacy principle iv) was the relevant test. That

principle reads:

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 a 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.

The Network contended that the purpose of the broadcast was not to abuse, denigrate

or ridicule the teacher personally, but to give the host's honest opinion of the

teacher's attitude to corporal punishment. It concluded there was no breach of

principle iv).

The Authority believes it is arguable that privacy was in issue. Privacy complaints

are generally referred directly to the Authority, at which time the Authority provides

the relevant information about its privacy principles and the broadcasting standards.

No such referral was received on this occasion and consequently no submissions on

the privacy principles were made. The privacy principles deal with the disclosure of

private facts, with the disclosure of public facts which have become private with the

passage of time, with intrusion into a person's interest in solitude or seclusion, and

with the protection against the disclosure of private facts to abuse, denigrate or

ridicule an identifiable person. They include the protection against the disclosure by

the broadcaster of the name and address or telephone number of an identifiable person.

The defence for an individual's claim for privacy is that the matter is discussed in the

public interest.

The Authority makes no finding as to whether the discussion of the identity of the

teacher was a public or private fact. It agrees with The Radio Network that the host's

comment was ill-advised and possibly imprudent, and considers that the essence of

the complaint is concerned not with privacy, but with the unfairness of naming a

teacher and ascribing to him an attitude about corporal punishment. That aspect has

been dealt with above. The Radio Network has acknowledged the breach and has

offered an apology. The Authority repeats that it considers that both a broadcast and

a written apology are appropriate remedies.

Finally, the Authority deals with the complainant's submission as to costs. The

Authority has the power to award costs under s.16 of the Broadcasting Act 1989.

The complainant sought full costs on the basis that the broadcaster had disregarded

the provisions of the Act. It did not elaborate further. The College also sought

compensation pursuant to s.13(1)(d), which provides that where a breach of privacy

is upheld, the complainant may be awarded compensation. It sought the maximum

amount authorised under the Act in light of its allegation that the broadcaster failed to

maintain standards consistent with the privacy of the individual.

When it makes a decision as to whether costs should be awarded, the Authority takes

into account whether there was a breach of the standards, the seriousness of the

breach and any other factors which exacerbated the breach. On this occasion, the

Authority acknowledges that there was an inordinate delay in response to the

complaint on the part of the Network. However, it understands that the Network

took a cautious approach in light of the High Court decision in TV3 Network Services Ltd

(in receivership) v Eveready New Zealand Ltd1.11 MB (Unreported, 31 October 1991,

High Court Wellington, CP No 527/91) where McGechan J held that where there were

concurrent complaints and legal proceedings, the Authority should delay disposing of

a complaint until after the court proceedings had been heard. In this instance,

concurrent proceedings were only raised as a possibility. It was not a basis for failing

to respond to the complaint. As the broadcaster decided to focus on the threatened

defamation proceedings, it would have been prudent for it to have advised the

solicitors for St Bede's of the reason for the delay. At that time, the complainant's

solicitors could have advised whether they were proceeding immediately with the

defamation action, or wished for the matter to be dealt with under the Broadcasting

Act.

There was also some delay while the Network ascertained which standards were

allegedly breached. Although the solicitors for St Bede's did not have a copy of the

Codes of Broadcasting Practice, apparently they did not request a copy or seek any

information from the Authority on the complaints process. When the Network

finally responded, the Authority considers that it interpreted the complaint fairly, and

correctly upheld the fairness aspect, and offered appropriate redress.

The Authority decides that the delays with the complaint are a result of fault on the

part of both parties. It does not believe the delays affected the outcome. The shared

responsibility for the delays is a matter which is taken into account when it decides

that no costs will be awarded to the complainant.

The issue of compensation for a breach of privacy is not material when no privacy

breach was found.

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

that the action taken by The Radio Network, having upheld an aspect of the

complaint, was insufficient.

It declines to uphold any other aspect of the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
21 August 1997

Appendix

St Bede's College's Complaint to The Radio Network of New Zealand Limited -

3 February 1997

Through its solicitors, St Bede's College complained to Newstalk ZB, part of The

Radio Network, that the talkback programme broadcast on 3 February 1997 between

9am and 12 noon contained disparaging comments about corporal punishment at the

college. It understood that the programme had made particular reference to one

present staff member and it considered the comments made were libellous and would

support an action for defamation by both the College and staff member concerned. It

requested from the Network a copy of the tape to confirm its understanding of what

the broadcast contained. If its understanding was proved correct, the College

requested an immediate apology, both on air and in written form.

It also asked that the matter be treated as a notice of complaint under the provisions

of Broadcasting Act.

The Radio Network's Response to the Formal Complaint - 5 February 1997

The Radio Network acknowledged receipt of the complaint. It advised that it would

respond within the statutory time frame.

St Bede's College's Complaint to the Authority - 19 May 1997

The College, not having received a reply to its complaint within the 20 working days

as required under the Broadcasting Act, referred its complaint to the Authority under

section 8(1)(b) of the Act. The solicitors for the College recorded that an

acknowledgment of the complaint, dated 5 February 1997, had been received from The

Radio Network, and the host of the programme complained about had phoned the

solicitors to apologise and admit liability.

The Radio Network's Response to St Bede's College - 21 May 1997

Through its solicitors, The Radio Network asked the College for further details on

how it considered there had been a breach of programme standards and invited further

comments in support of the complaint.

The Radio Network did not accept that the comments made were actionable, nor did it

consider that the remarks would adversely affect the College's reputation, particularly

since corporal punishment had long been abolished. The comments made about the

staff member, it considered, were the host's honest opinion and, from enquiries made,

it appeared that other past students agreed with the comment. The Network

acknowledged that the host did contact the solicitors for the College but noted that it

was before he became aware of their letter of 3 February. It denied that he had

admitted he was in error. Rather, the Network advised, the host indicated that if the

station was in the wrong, then it would send an apology, but that it was not up to the

host to decide.

St Bede's College's Response - 22 May 1997

The solicitors for St Bede's responded to the letter from the Network as follows:

1. The contents of the remarks as reported to the College and to ourselves are

clearly defamatory of both the person involved and the College.

2. The failure by your client to produce a copy of the tape supports the

client's view that it has something to hide.

3. If Mr Yardley [the host] was unaware of our letter, how did he know to ring

the writer. We have never met him before.

4. Your instructions as to what he said to the writer are incorrect, and we took

notes at the time. In particular, he said "Yes, we are in the wrong, it was a

thoughtless comment and we will send letters of apology to both parties and

also put it over on the radio" He then proceeded to talk about other things....

5. The failure by the Radio Station to take any action over the last three

months only aggravates the situation in our view.

6. We believe that the comments in the programme infringed against Section

4(1)(a), (b), (c) and (d) of the Act.

In a short letter to the Authority dated 17 July 1997, it advised that it wished the

matter further investigated.

The Radio Network's Response to the Authority -10 July 1997

The Radio Network advised that because the original complaint was a defamation

question, it had put the matter in the hands of its solicitors, leaving the complaint

question to one side.

Its solicitor then inquired into the defamation matter and, because he heard nothing

further from the complainant, believed that the matter might be ended. It regretted the

delays in the matter, some of which had been caused by the transfer of premises.

When asked by the Authority for a response to the substantive matters, The Radio

Network, through its counsel, responded in a letter dated 24 July 1997 and dealt with

the following issues:

The Delay in Response

The Radio Network dealt first with the matter of delays. It noted that the original

complaint by St Bede's solicitors was dated 3 February and that the letter alleged

defamation. This appeared to be followed by a conversation between the solicitors

and the radio host, although there is a dispute as to whether the host admitted he was

in error or confirmed his belief about corporal punishment at the college. The second

letter dated 7 February was, according to the Radio Network, also written with

defamation in mind.

The Radio Network reported that its solicitors advised that a defamation action was

unlikely and Newstalk ZB then considered the matter was at an end. When St Bede's

solicitors wrote on 17 April seeking a response, The Radio Network considered this

related to defamation, and on 22 April asked its solicitors to respond. They did so in

a letter dated 21 May which confirmed that The Radio Network did not accept the

remarks were actionable

According to The Radio Network, the first time the Broadcasting Act was referred to

was in the letter dated 19 May which mentioned s.8 but not any standards.

Particulars were sought by The Radio Network's solicitors and St Bede's College's

response of 22 May concluded with reference to s.4 of the Broadcasting Act. The

Radio Network advised that its reply to the complaint was its solicitors' letter of 21

May.

The Radio Network added:

Any delay has resulted from steps taken by St Bede's solicitors. This was

commenced as a defamation action and the complaint side only became an

issue in mid May 1997.

It noted that an explanation for the delay had been given in a letter dated 10 July and

observed that the complainant's solicitors could have assisted the process by making

clear they were lodging a complaint under the Broadcasting Act instead of proceeding

with the more general defamation correspondence in February 1997.

The Complaint

Noting that the complaint had been lodged under the general provisions of s.4 of the

Broadcasting Act, The Radio Network chose to simplify matters by referring to the

appropriate standards in the Radio Code of Broadcasting Practice. It responded:

Standard R 2 - good taste and decency (s.4(1)(a))

The Radio Network considered this had no relationship to the complaint.

Standard R6 - respect the principles of law which sustain our society (s.4(1)(b))

This is not relevant to the complaint.

Standard R11 - respect for the privacy of the individual (s.4(1)(c))

The Radio Network noted that the privacy principles related both to private and

public facts. It submitted that the application of corporal punishment by a teacher

was arguably a public fact, and therefore the defence of public interest would apply.

However, The Radio Network continued, if the Authority was to conclude that

corporal punishment by the named teacher was a private fact (which was denied),

then the relevant test would be principle 4 of the Privacy Principles, and whether the

disclosure led to abuse, denigration and ridicule of the teacher. The Radio Network

contended that the remarks were not intended to abuse or denigrate the teacher, but

gave the host's honest opinion of the teacher's attitude to corporal punishment.

Standard R5 - dealing justly and fairly with any person referred to in the programme

The Radio Network noted that the solicitors for St Bede's did not refer to the

standard and it was therefore arguable that any complaint had been made in respect of

it.

The Radio Network considered that there was no breach in naming the school and the

teacher, but that by stating that he gained "some sadistic pleasure" from meting out

corporal punishment and not giving the teacher the right of reply, it accepted that the

broadcast may not have dealt fairly with him. It upheld a complaint under that

standard but added:

A procedural issue arises here. The letter of complaint didn't refer to this rule

and Newstalk ZB has now addressed the issue. The complaint is upheld.

This should then be referred to St Bede's before further reference to the

Authority. Newstalk ZB would broadcast an appropriate apology, or provide

the school and teacher with a letter apologising for breaching this rule.

Standard R9 - balance, impartiality and fairness (s.4(1)(d))

The Network noted that the standard refers to questions of a controversial nature.

The issue, it argued, was long gone and the rule did not apply in this situation.

However, it offered St Bede's the opportunity to express its views on corporal

punishment on the programme.

Conclusion

The Network concluded that the nub of the complaint was the issue of privacy and in

particular whether these were public or private facts. It regarded it as difficult to

argue that the application of corporal punishment in a school was a private fact, and

therefore the public interest defence applied. If it was not a private fact, then the host

gave his honest opinion, and there was no intent to denigrate or ridicule.

The second issue was whether the teacher was dealt with fairly. The Radio Network

upheld that aspect adding:

...[the host] should have either not named the teacher when referring to

"sadistic pleasure" or having named the teacher should not have gone on to

refer to his state of mind without giving him an opportunity to respond.

Further Correspondence

In a fax dated 28 July, St Bede's College, through its solicitors, responded to The

Radio Network's response to the Authority. It made the following points:

1. Referral to the Authority. The College noted that the matter was referred to

the Authority under s.8 because of the failure of the Network to deal with the

complaint lodged on 3 February. It was referred under s.8(1)(a) and (b) and s.8(1)(c).

2. Delays. Originally, letters were faxed to RNZ and Newstalk ZB on 3 and 4

February. The initial letter referred to defamation and gave notice of a complaint

under the provisions of the Act. The College advised that the Network made no

response until a letter was received from its solicitors on 21 May, other than a

telephone call from the host, admitting fault, on 5 February. The College's solicitors

considered the allegations of delay on their part to be somewhat ludicrous, since the

initial letter and follow up letters had been ignored. They considered it quite clear that

there had been a failure by the broadcaster to comply with the obligations under the

Act and therefore the complaint should be upheld.

3. The Complaint. The solicitors for the College acknowledged they did not

have a copy of the Codes of Practice. They added that the Codes had not been sent to

them.

4. The Reply to the Complaint. The College, through its solicitors, repeated

that the initial referral to the Authority was because of failure to respond or take any

action. It then commented on The Network's response to the complaint under the

standards.

a) Standard R2 - good taste and decency. In the view of the College, if the

Network was correct, then any broadcaster was licensed to defame any person

publicly.

b) Standard R6 - to respect the principles of law which sustain our society. The

College considered one of the principles of law was a person's right to his good name.

c) Standard R11 - to respect the privacy of the individual. The College accepted

that the application of corporal punishment was a public fact, but considered that it

was hardly now a matter of public interest. It maintained that the sole purpose of the

broadcast was to abuse, denigrate or ridicule the teacher and noted that the host had

admitted he was in the wrong.

d) Standard R5 - dealing justly and fairly with any person. The College noted

that the broadcaster had admitted responsibility and that an apology was promised. It

added that an apology was promised six months ago.

e) Standard R9 - balance, impartiality and fairness. The College advised that its

complaint was not about the issue of corporal punishment, but about the allegations

made about St Bede's and the particular teacher named.

The College noted that the Authority had the power to award costs under s.16, and in

that regard sought an award to cover full costs which were in the region of $1000.00.

Furthermore, it sought compensation for the broadcaster's failure to maintain

standards consistent with the privacy of the individual, suggesting that an award of

the full amount authorised by the Act should be made.

Further Correspondence

The Radio Network responded in a fax dated 29 July 1997 to matters raised by the

complainant's solicitors.

1. Referral to the Authority

The Network pointed to the letter of 3 February which it said was the cause of the

confusion. The claim made was for defamation. The complaint just used the general

phrase "please treat this letter of complaint also as a notice of complaint under the

provisions of the Broadcasting Act". In the Network's view, it was not unreasonable

that the broadcaster and its solicitor treated the defamation action as first priority.

2. Delays

The Network considered the delay was cause by a combination of the complainant

alleging defamation and a general unspecified complaint, and the broadcaster treating

the solicitor's letter as a defamation allegation with the complaint very much

secondary. It noted that the Authority's guidelines asked complainants to specify the

nature of the complaint.

The Network submitted that nothing turned on the issue of delays. It suggested that

in order to avoid this in future, it may be helpful if guidelines were prepared by the

Authority for broadcasters and solicitors. It considered this would be particularly

helpful given the decision TV3 Network Services Ltd v Eveready New Zealand Ltd

(Unreported, 31 October 1991, High Court Wellington, CP No 527/91).

3. The Complaint.

The Network submitted that complaints to the Authority should specify the codes

and the nature of the breach. The consequence of St Bede's solicitors being unaware

of the Codes or their content was that The Network treated the defamation allegation

as a priority and the complaint was both secondary and very general in nature.

4. The reply to the Complaint.

The Network considered that the complainant's solicitors had confused the privacy

principles with standard R5 and the allegation of defamation. With respect to

standard R5, the Network accepted that there had been a breach and offered to

provide either a broadcast or written apology. It noted that there was no indication

whether that offer had been accepted.

5. Follow up action.

The Network noted the application for costs. It considered it would be totally

inappropriate to award costs as it was clear from the early correspondence that the

matter was a defamation allegation. It also opposed compensation, arguing that there

was no breach of privacy.

The Network concluded the only remaining matter was the issue of standard R5 and

whether the Authority considered the offer of the apology was sufficient.