BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An obscene phone call was broadcast on 92.2XS in Palmerston North on 5 December

1997. A male caller said he had seen the woman he was speaking to at her place of

work, and that he was now home and naked and wanted to hear her voice.

J, the woman who was the victim of the call, complained to the Broadcasting Standards

Authority under s. 8(1)(c) of the Broadcasting Act 1989 that the call breached her

privacy. She advised that the caller was one of the announcers on 92.2XS enjoying a

practical joke. She expressed her outrage at his lack of regard for her feelings.

Furthermore, she considered the use of the telephone for this kind of hoax to be

bordering on criminal. She said she found the announcer's attempt at humour to be

repugnant and offensive.

The response from 92.2XS dealt with the complaint as both a privacy matter and a

standards complaint. It acknowledged that there was a breach of broadcasting standards

in that the call was in bad taste, was unfair and was a deceptive programming practice.

It advised that the hosts had been formally reprimanded. With respect to the privacy

complaint, the station submitted that there was no breach of J's privacy because there

was no identification of her. It offered its apologies to the complainant.

Dissatisfied with the action taken by the broadcaster on the standards complaint, J

referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

For the reasons given below, the Authority upholds the privacy complaint. It also

upholds the complaint about the inadequacy of the action taken by the broadcaster on the

standards complaint.

Decision

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

have read the correspondence. On this occasion, the Authority determines the

complaints without a formal hearing.

An obscene phone call, recorded the previous day, was broadcast on 92.2XS on 5

December 1997. In the call, a woman was phoned at her place of work by a man who

claimed to have seen her at work. He said he was now at home, naked and thinking

about her. She was identified by her first name.

J, the victim of the call, complained to the Broadcasting Standards Authority under

s.8(1)(c) that the broadcast breached her privacy. She also complained that it was in bad

taste, and was unfair to her. She expressed her outrage that the call had been broadcast

without her knowledge or consent, and that the announcers had shown no regard for her

feelings. J advised that her voice had been recognised by friends who heard the

broadcast.

In its response, the station advised that three similar calls were made and that they were

a stunt introduced by the breakfast hosts but made without the consent or approval of

the station management. It upheld the complaint that the call breached standards R2, R5

and R10 of the Radio Code of Broadcasting Practice. Those standards 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.

R10  To avoid the use of any deceptive programme practice which takes

         advantage of the confidence listeners have in the integrity of broadcasting.

Having found breaches of these standards, the station reported that it had reprimanded

the hosts and that they had been given clear guidelines regarding the use of stunts on the

radio. It also noted that the station's general manager had attempted to make contact

with the individuals to apologise, and had done so in the case of two of them. In J's

case, the station manager had spoken to her employer and asked that the station's

apologies be passed on to her.

With respect to the privacy complaint, the station considered it should be dealt with

under Privacy Principle iii), which reads:

iii) There is a separate ground for a complaint, in addition to a complaint for

the public disclosure of private and public facts, in factual situations

involving the intentional interference (in the nature of prying) with an

individual's interest in solitude or seclusion. The intrusion must be

offensive to the ordinary person but an individual's interest in solitude or

seclusion does not provide the basis for a privacy action for an individual

to complain about being observed or followed or photographed in a

public place.

In its assessment, the station accepted that the broadcast did amount to an intrusion that

was offensive to the ordinary person. However, it submitted, there was no breach of

the provision on the basis that there was no intentional interference in J's solitude (in

the nature of prying) as it was simply a stunt gone wrong. It also argued that there was

no identification of the individual.

J advised the Authority that in her view the action taken by the station was insufficient,

particularly as the hosts of the programme were experienced broadcasters. She said she

regarded the formal reprimand as of little consequence and an inadequate punishment for

such an outrageous prank. She rejected the station's assertion that she was not

identified, pointing out that several acquaintances had recognised her voice on the radio

and that her first name was broadcast. J did not believe, she said, the station understood

the seriousness of the matter, or that it realised how upsetting and frightening the phone

call was for her.

The Authority deals first with the action taken by the broadcaster. It notes that

breaches of three standards were acknowledged and that the programme's hosts were

reprimanded and given clear guidelines about the use of stunts on radio. The station also

offered to apologise directly to J.

The Authority acknowledges J's scepticism about the effectiveness of a reprimand, and

her point that the hosts were not new to radio and should already have been well

acquainted with broadcasting codes of practice. The Authority considers they

displayed gross insensitivity to J. No attempt was made to contact her to reassure her

that she had been the victim of a prank, and it was not until the following day that she

realised that the caller was not a genuine person. In the Authority's view, it was an

extremely ill-conceived attempt at humour.

With respect to the complaint that the broadcast breached her privacy, the Authority

accepts J's contention that acquaintances who heard the call broadcast recognised her

voice and were able to identify her. Her first name was also broadcast. The Authority

concludes that to those who knew her, J's identity was revealed.

Applying Privacy Principle iii), the Authority then examines whether J's interest in

solitude or seclusion was interfered with. The principle provides a remedy where a

broadcaster has embarked on a scheme of intentional interference with a person's right

to privacy where that interference is intrusive or objectionable. Prying is but one

example of conduct which may offend. Here, the interference was both intrusive and

objectionable and, in the Authority's view, it cannot be excused simply because it was a

stunt which went wrong. J has a right not to be publicly victimised for the amusement

of breakfast show hosts and, possibly, listeners. The Authority finds that J's privacy

was breached by the broadcast.

In assessing the severity of the breach, the Authority has taken into account the fact

that the call – and others like it – was broadcast the day after it had been recorded, thus

demonstrating that its broadcast was a considered decision and not simply a

spontaneous one. No attempt was made to apprise J of the fact that the call was a

prank, or to seek her approval to broadcast it. The Authority also notes that although

the breakfast show hosts involved displayed a surprising lack of judgment, they were

regarded as experienced and were likely therefore to be fully familiar with the codes of

practice. In the Authority's view, these factors exacerbate the breach, as does the

station's failure to contact J directly to express its apologies. In view of the seriousness

of the conduct of the broadcaster, the Authority decides that a penalty is appropriate.

In accord with the Authority's customary approach when dealing with a privacy

complaint, and there being no public interest to the contrary, it has suppressed the name

of the complainant.

For the reasons set forth above, the Authority upholds the complaints that a

broadcast on Radio 92.2XS on 5 December 1997 breached J's privacy. It also

upholds the complaint that the action taken by the station, having upheld the

complaint that the broadcast breached standards R2, R5 and R10 of the Radio

Code of Broadcasting Practice, was insufficient.

Having upheld a complaint, the Authority may make an order under s.13(1) and award

costs under s.16(4) of the Broadcasting Act 1989. The Authority has sought

submissions from the broadcaster on the question of penalty. In its submission, the

broadcaster repeated that it had received an assurance that J was not named. The tape

reveals otherwise. J identified herself by her first name, and the caller repeated her

name. J has advised the Authority that she was recognised by acquaintances who heard

the broadcast. The Authority accepts that she was identifiable, and indeed, that people

who knew J identified her in the broadcast.

The station also submitted that the broadcasters were experienced and were familiar

with the codes of practice. The Authority repeats that in its view, this factor

exacerbates the breach. It considers that there has been a serious breach of

professionalism. The Authority notes that the station claims to have suffered negative

publicity. Having considered this, the Authority is not persuaded that this point should

be given any weight when, in circumstances such as this, there has been a serious

intrusion into the privacy of an individual. Accordingly, it decides that a penalty is in

order.

Order

The Authority orders 92.2XS to pay, within one month of the date of this

decision, costs in the amount of $750.00 to the Crown under s.16(4) of the

Broadcasting Act 1989 and, under s.13(1)(d), compensation in the amount of

$250.00 to J.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
5 March 1998

Appendix

J's Complaint to the Broadcasting Standards Authority – 11 December 1997

J of Palmerston North complained directly to the Broadcasting Standards Authority

about the broadcast of an obscene phone call to her on Radio 92.2XS on 5 December

1997.

During the call to J at her place of work, the caller said he had been into her office, had

seen her, and was now back home and was naked and wanted to talk to her. A friend of

J's heard the conversation when it was broadcast, recognised her voice and called to tell

her about the call being broadcast. It transpired that the caller was an announcer at

92.2XS.

J said she found the whole episode outrageous. She felt the announcers had a total

disregard for her feelings in that they did not have the decency to let her know the call

was a practical joke. She considered the broadcast of the call without her knowledge

was a total breach of her privacy and she was incensed about it. She advised that other

women had received similar calls, and the matter had been publicised in the local paper.

She added:

At the time of the call I considered calling the Police. I felt that the call was

genuine and truly believed that a perverted person was ringing me for sexual

gratification.

I find the use of the telephone for this kind of hoax to be a misuse of the phone

and the call was bordering on the criminal. I find the radio announcers attempt at

humour to be repugnant to me and to the community of Palmerston North as a

whole.

Radio 92.2XS's Response to the Complaint – 19 December 1997

Through the Executive Director of the Radio Broadcasters Association, the station made

its response. It dealt with the complaint as both a standards complaint and a privacy

matter. It explained the background to the broadcast, noting that the breakfast hosts

introduced the naked phone calls as a stunt and three calls were made. It advised that

the stunt was done without the consent or approval of the station's management, and

that it had taken the following steps:

1. The hosts had been reprimanded and given clear guidelines as to the extent to

which stunts can be used on radio.

The station advised that it upheld the complaint as a breach of standard R2

(good taste), standard R5 (dealing fairly and justly with a person) and R10 (the

broadcast entailed the use of a deceptive programming practice).

2. The General Manager of the station had made contact with two of the

individuals concerned and apologised on the station's behalf. He had been unable

to contact J, but had spoken to her employer who said he would pass on the

station's apologies. The station advised it was prepared to provide written

apologies if necessary. In the case of the other woman, a bunch of flowers had

been sent to her. It understood that in the case of J, the apology was sufficient.

With respect to the privacy complaint, the station considered the complaint should be

dealt with under Principle (iii) which relates to an individual's interest in solitude or

seclusion. It wrote:

The station accepts that this was an intrusion that was offensive to the ordinary

person, however I submit that there is no breach of this provision on the basis

that there was no intentional interference (in the nature of prying) but rather it

was a stunt gone wrong. There was no identification of the individuals.

The station advised it wished to make a meaningful apology to J.

J's Final Comment – 7 January 1998

J disputed the station's contention that only three calls were made. She said a friend

heard at least four women and one male called on the radio. Some of the women hung up

right away.

She described as ridiculous the need to give the hosts clear guidelines. Surely, she

argued, the guidelines were already there. She noted that the hosts were not new to

radio, and she felt that they flouted the rules and relied on the fact that most people

cannot be bothered to complain. In her view, the two announcers considered themselves

above the law and had been allowed to get away with whatever they liked on radio. She

believed a formal reprimand would be of little consequence and was an inappropriate

punishment for such an outrageous prank.

J advised that the General Manager had made no attempt to contact her. Her employer

had telephoned him to ensure that his firm's name was not broadcast in connection with

the stunt and because she did not want the recording to be broadcast again.

She challenged the station's contention that none of the individuals was identified,

pointing out that several acquaintances had recognised her on the radio. She understood

that her name had been broadcast. She concluded:

The fact that Steve Rowe [station manager] seems to think that an apology and a

bunch of flowers is sufficient to rectify this sort of antic goes to show that he

and the radio station think little of the matter and are not really treating the

whole episode seriously. They do not seem to realise just how upsetting and

frightening such a phone call is in this day and age where we seem to have so

many vicious attacks on women. I thought the call was genuine and I and my

work colleagues were extremely worried that the caller would come into our

office or follow me home.

She reiterated her concern and annoyance at the stunt.

Further Correspondence

When asked by the Authority to make submissions on the question of costs, the

Executive Director of the Radio Broadcasters Association responded on the station's

behalf in a letter dated 9 February 1998.

The station suggested that the following factors be taken into account:

1. There was no identification of the individuals. The station stated that contrary

to J's letter of 7 January, at no time was her name ever broadcast.

2. The Station Manager attempted to apologise personally to J. Her employer

telephoned the Station Manager and during this conversation the Station

Manager asked to be able to speak to J to apologise to her. He was told that was

not necessary.

3. There was no deliberate or intentional act to hurt J. The hosts had been given

formal warnings as well as a reprimand.

4. The hosts had an excellent record in terms of broadcasting standards. One had

been an on-air personality for 20 years and the other for 7 years. This was only

the second complaint involving the two broadcasters. Their breakfast

programme was one of the highest rating in New Zealand and they had won

numerous industry awards. They were responsible broadcasters, and regretted

what they did.

5. The station itself had a very good record on complaints.

6. The announcers undertook numerous community projects.

7. The station had already suffered negative publicity about the incident. A copy

of an article from the Evening Standard was attached.

In relation to costs, the station made the following submissions:

1. The complaint was dealt with promptly, and the Authority was advised of the

action taken on the complaint.

2. The Authority had not been required to incur any additional costs.

3. The request for a submission on costs had received a prompt reply.

The station submitted that the penalty should be nominal. It should take into account

the broadcaster's record and the fact that this was a stunt which went wrong. It

submitted that the compensation and costs should be significantly less than those

awarded by the Authority in Decision Nos: 1996-004, 005 and 006; 1996-003, and

1997-161 and 162.