BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

Two hosts on George FM Breakfast asked listeners to send in the names and profiles of female users of Instagram described as ‘do-nothing bitches’. The names of two women, A and B, were submitted. The hosts went on to comment extensively on A’s profile, making inappropriate and disparaging comments about her, and also contacted A and interviewed her on air. The Authority upheld a complaint that the action taken by MediaWorks having found breaches of the fairness and good taste and decency standards was insufficient, and also found that the broadcast breached the privacy of both women.

Upheld: Fairness (Action taken), Good Taste and Decency (Action taken), Privacy

Not Upheld: Discrimination and Denigration, Law and Order, Responsible Programming, Controversial Issues, Accuracy

Orders: Section 13(1)(d) $4,000 compensation to A for breach of privacy; section 13(1)(d) $2,000 compensation to B for breach of privacy; section 16(4) $2,000 costs to the Crown

Introduction

[1]  Two hosts on George FM Breakfast (Thane and Kara) asked listeners to help them stage a ‘social media intervention’ by sending in the names and profiles of female users of the photo-sharing platform Instagram. Kara referred to these women as ‘do-nothing bitches’ who ‘just sit around and post half-naked pictures of themselves’. The names of two women, A and B, were submitted. The presenters went on to comment extensively on A’s profile – Thane expressing his appreciation for A’s ‘spectacular breasts’ and Kara saying disparaging things about her, including implying that she was a ‘slut’. The hosts also contacted A and interviewed her on air.

[2]  IM complained that the hosts ‘publicly bullied, humiliated and denigrated’ A. William Ihaia made a direct privacy complaint to the Authority alleging that the broadcast breached the privacy of A and B.

[3]  MediaWorks upheld IM’s complaint under the fairness and good taste and decency standards of the Radio Code of Broadcasting Practice. IM has referred the matter to this Authority on the grounds she is dissatisfied with the action taken by MediaWorks to address the breach, and on the grounds that the complaint should also have been upheld under additional standards. She said she was ‘totally disappointed and dissatisfied’ with MediaWorks’ findings and said that ‘the inquiry lacked objectivity and impartiality’.

[4] The issues for our determination are:

• whether the action taken by MediaWorks, having upheld IM’s complaint under the fairness and good taste and decency standards, was sufficient; and
• whether the broadcast otherwise breached the privacy, discrimination and denigration, law and order, responsible programming, controversial issues and accuracy standards.

[5]  The item was broadcast around 7am on George FM on 10 September 2015. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme

[6]  George FM is a music-focused station and its presenters ‘have total control over the music they play’¹. George FM Breakfast is described as offering ‘all your classic radio breakfast standards, time checks, traffic and travel, and weather, just because they fill time. Alongside some brilliant humour, off the wall chat, and every so often something that walks the fine line of the law’. Host Kara purportedly takes ‘a level headed, objective look at whatever ludicrous idea [Thane] tries to achieve next’.²

[7]  On this occasion, Kara introduced the morning programme by discussing how ‘massive’ social media is, and then said, ‘It’s something that people do all the time, is just post questionable things. Too many selfies, too many gym pics, and lots of girls trying to get followers by posting pics in their underwear while trying to talk about gun control or refugees... which is just bloody ridiculous. So we have a public service announcement from a comedian who’s just going to lay it all out there’.

[8]  The hosts then played an audio clip from a comedian, as follows:

Dear Instagram models,

It’s time we had a chat, sexy bitches. Consider this a state of the union address for hoes of the internet. This has been weighing on me for a while. I can’t go on the internet without seeing your titties, your ass or basically up your fallopian tubes, because you are an Instagram model. There’s nothing wrong with being a gorgeous, hot, fiery, sexy woman, but there’s a lot of do-nothing bitches running the internet right now, girls who are just trying to be hot and waiting for some guy to come along and take care of them. Perhaps an athlete that you accidentally got pregnant with. You poked holes in the condom you psycho.

[imitating child’s voice] ‘Mummy, how was I made?’

[sing-song voice] ‘I poked holes in the condom so your dad would have to pay for you. And my lips. And my new boobs.’

[9]  The hosts’ exchange following the playing of this audio recording was as follows:

Thane: They exist. They are real. Those, what was it, do-nothing bitches.

Kara: Do-nothing bitches, they just sit around and post hot naked pictures of themselves on Instagram.

Thane: But that’s half the reason I’m attracted to Instagram –because there are so many naked women on there!

[10]  The hosts discussed their own Instagram profiles, and then Kara said:

We want to know – do you know someone who’s one of those do-nothing bitches who just post pictures of themselves half-naked on their Instagram? Maybe we’ll call them up and do a social media intervention. Thane will probably just follow them on Instagram. Let us know if you’ve got friends that fit into that category, and their phone numbers so we can call them.

[11]  Thane commented:

But I’m going to be very finicky too, because I’m going to go through their Instagram account, and if I get any kind of twitch downstairs, then we’ll give them a call. It’s got to be quite good.

[12]  A caller supplied A’s full name and after viewing A’s Instagram profile, Kara said she ‘just posts pictures of her tits, basically’. The caller said, ‘Thane, you might want to have a look, you might wet yourself’. Another caller gave the hosts B’s full name.

[13]  Thane then read out a message from a listener, in the following exchange:

Thane: ‘Yo, [A] went to film school with me, she’s rank’.

Kara: [Laughing] Yeah, I can tell by her Instagram, anyone who posts pictures of themselves in their underwear is rank.

Thane: You’ve got to admire a little bit about these girls, because they are putting themselves up for the ultimate judgement.

Kara: Yeah so they can get likes and just look like hoes.

Thane: It’s a talent... that’s what they’re doing, and I can’t be judgemental if it’s a good or bad thing... when you put photos up like that you are being judged and you are going for likes. And so it takes a pretty big pair of tits to do that.

[14] A caller purportedly gave the hosts A’s phone number (which turned out to be the phone number of A’s friend) and the hosts had the following conversation:

Thane: You’re not going to go and tell her off, are you? I’m going to take the approach that maybe she should come up and give us a lap dance, and you’re going to take the approach of...?

Kara: Why you got to get your tits out man? Are they real or did you pay for those babies? ...When we come back we will have [A] on the phone for our social media Instagram do-nothing bitch intervention.
....

Thane: Yeah people are trying to boost their egos on Instagram.

Kara: Self-esteem issues much?

Thane: Well who’s to say, she may not have self-esteem issues. She may be a type of person who just wants to put it out there. I mean, isn’t that what beauty pageants are all about?
....

Thane: I’m 50/50, I don’t think there’s anything wrong with it... as long as she accepts my friend request.

[15]  Kara read out a text message which was apparently from A, saying:

‘Hi guys, thanks for talking about me this morning and giving me the extra few followers... You know, I shouldn’t be ashamed of something like that, it’s the 21st century’... blah blah blah blah blah blah blah.

[16]  The hosts then phoned A’s friend. Thane said, ‘You know what, if you’re young, and you’ve got a great body, why not show it off?’ They discussed A’s breasts, asking her friend if she had ‘seen them naked’ and asking if they were real. Thane repeatedly remarked, ‘spectacular’.

[17]  The hosts then managed to get a phone number for A and called her. The exchange was as follows:

A: It was a bit weird waking up to what you guys said about me, but I’m good.

Thane: Can I just say that, of course... we’re not going to do this kind of like ‘slut-shaming’ thing that someone said we were going to do.

Kara: Because Thane actually really appreciates your Instagram account...

Thane: I think your Instagram account is amazing.

A: I mean, obviously I would get the wrong idea with people messaging me saying, ‘George FM is slut-shaming you, George FM is saying all this stuff about you’.

Kara: We weren’t slut-shaming you, we were just, you know, talking about a bunch of Instagram accounts who tend to show a little bit of skin, because that’s the kind of Instagram account that Thane likes.

Thane: And you know, you are quite literal with showing the boobs and stuff, and I’m thinking, ‘Wow, you’ve got spectacular breasts’.
....

A: The thing with me is I am all about empowering my body. I used to be anorexic so I weighed about 40 kgs, I got into the gym and healthy eating and then after that I just didn’t really care. I thought girls should be empowered, girls should show off their body if they love their body and I love my body, so that’s why I Instagram it.

Thane: You know what, you’ve got my support. Fantastic... I’m thinking a George Breakfast calendar, I would love you to feature in our calendar.Kara: Of course you are, you big perve.

Thane: I’m not doing anything wrong, am I?

....

A: The photos that I do put out, I know the kind of attention I’m going to get and I know the kind of followers I’m going to get, so I don’t really find it weird. I guess it gets a bit creepy and weird when I get a lot of guys that will message me constantly or just not stop.

[18]  The conversation ended, and the hosts’ discussion was as follows:

Kara: Sorry if the word ‘slut’ offended you, but there’s kind of no euphemism for that word. I guess you could say, ‘used car with high k’s’?

Thane: That would be mean, not good.

Kara: Flashy on the outside, gross on the inside?

Thane: Mean.

[19]  The duration of these discussions about Instagram and ‘do-nothing bitches’ totalled approximately 15 minutes of voice breaks across the two-hour George FM Breakfast programme.

Overview of findings

[20]  Our task in assessing any complaint alleging a breach of broadcasting standards is to strike a balance between the importance of the right to freedom of expression on the one hand – both of the broadcaster to impart ideas and opinions and of the audience to receive these ideas – and on the other, the harm alleged to have been caused by the broadcast.

[21]  In our view, the content of this broadcast demonstrated a severe lack of understanding of the standards, particularly in relation to individuals’ privacy interests and their right to fair treatment. The discussion which resulted in the ‘naming and shaming’ of A and B and the description of them in very damaging and derogatory terms did not carry any level of public interest and could not possibly be said to have outweighed these individuals’ rights. ‘Public interest’ is defined as being of legitimate concern to the public, rather than being a matter of general interest or curiosity on a human level.³ The subject of ‘do-nothing bitches’ on Instagram and the call for listeners’ assistance in staging ‘social media interventions’ in relation to such individuals was not of legitimate concern to anybody.

[22]  Accordingly we have no difficulty in finding that this programme breached broadcasting standards in a number of respects and that the action taken by the broadcaster in relation to A was not sufficient given the gravity of the breaches. Our reasoning is expanded below.

Did the broadcaster take sufficient action, having upheld IM’s complaint under the fairness standard?

[23]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁴

[24]  In upholding the complaint, MediaWorks found that ‘the way in which [A] was treated was unfair and inappropriate’. It said that George FM Breakfast personally apologised to A and B and also broadcast an apology the following morning:

Thane: During yesterday’s show we discussed the topic of women posting on Instagram. With hindsight, we can see that this segment was hurtful and in poor taste.

Kara: It was really poor judgement to discuss the topic in the way that we did, and we wish to sincerely apologise to anyone named in this piece and offer our sincerest apologies to any listeners who were offended or hurt by the segment.

[25]  The same day, MediaWorks provided a media statement and posted on Facebook as follows:

George FM announcers Thane and Kara are truly sorry for Thursday’s poorly judged and hurtful segment. This morning they made a live, on-air apology and the George FM Programme Director has called both girls named in the segment to apologise. Thane and Kara have been suspended from the show.

[26]  MediaWorks also said that it ‘took significant disciplinary action in relation to the announcers’, ‘reviewed its compliance processes across its radio stations’ and provided producers and announcers with ‘further Code of Conduct and Broadcast Standards training’.

[27]  We are of the view that the comments made about A amounted to a serious breach of the fairness standard and we agree with the broadcaster’s decision to uphold this part of IM’s complaint.

[28]  The hosts broadcast A’s full name and referred to her by her first name throughout the programme, as a purported example of a ‘do-nothing bitch’ who looked like a ‘ho’. Kara referred to A as ‘rank’, said that she likely has low self-esteem and implied that she was a ‘slut’. She also made references after the phone call to A as a ‘used car with high k’s’ and ‘flashy on the outside, gross on the inside’. These were extremely derogatory and clearly had the potential to be damaging to A’s reputation and dignity. Thane did remark that Kara was being ‘mean’, said he did not think there was ‘anything wrong with it [her use of Instagram]’ and told A that she had ‘his support’. However he also made lewd and inappropriate comments about getting a ‘twitch downstairs’, repeatedly told A that her breasts were ‘spectacular’ and said he wanted to feature her in a calendar. This discussion about A and her Instagram account persisted across two hours of the George FM Breakfast programme.

[29]  While A was able to defend herself to a limited extent, and came across well in the phone call to her, which went some way to mitigating the harm, this did not excuse the broadcaster’s actions. The content and tone of the broadcast was bullying, derogatory and unacceptable.

[30]  With all of this in mind, the question is whether the broadcaster acted sufficiently having upheld the complaint under the fairness standard, and specifically whether the actions set out at paragraphs [24] to [26] were adequate to address the breach.

[31]  In our view, the broadcaster’s response was inadequate given the seriousness of the breach. While it was appropriate that someone phoned and apologised to A personally, because the fairness standard is concerned with damage to an individual’s reputation and dignity it was important that a public apology remedied the damage in the minds of listeners as well. We think the on-air apology was too fleeting to address the harm done and was unlikely to achieve any meaningful remedy for A. The apology was insufficiently serious and it did not reflect the gravity of the breach. The broadcaster and this particular station have been directed in a previous decision of a similar nature that, while the Authority recognises that the tone and language used may be in keeping with audience expectations of the station and its hosts, ‘more formal dialogue and treatment’ is required to recognise serious breaches involving individuals named on air.⁵ The apology did not convey the gravitas that was warranted in these circumstances.

[32]  As we have said, the apparent objectives of humour and entertainment did not come close to outweighing the potential to cause harm to A. We are therefore satisfied that upholding the action taken complaint is a justified limit on the broadcaster’s exercise of the right to freedom of expression.

[33]  As a result we uphold the complaint that the action taken by MediaWorks in relation to IM’s fairness complaint was insufficient.

Did the broadcaster take sufficient action, having upheld IM’s complaint under the good taste and decency standard?

[34]  The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence.⁶ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁷

[35] In upholding the complaint, MediaWorks considered that ‘[r]egular listeners of the George FM breakfast show have a high level of expectation for challenging or provocative content’. However, ‘due to the personal nature of the material in question, it clearly went beyond what regular listeners of the show would consider appropriate’. MediaWorks concluded that the broadcast ‘was likely to have offended a significant number of listeners’. The action taken by MediaWorks to remedy the breach is set out above at paragraphs [24] to [26].

[36]  For many of the same reasons we have set out above at paragraph [28], we agree with MediaWorks that the hosts’ discussion went beyond the bounds of acceptability and would have been highly offensive to a significant number of listeners. We are also influenced by the fact that the vitriol in the broadcast (particularly from Kara) was solely focused on a certain type of female users of Instagram, and that Thane’s comments contained sexually inappropriate comments directed at women, including A. In our view, this amounted to not-so-veiled sexism that offended current norms of good taste and decency.

[37]  We acknowledge that the harm caused by a breach of the good taste and decency standard can be different than the harm caused by a breach of the fairness standard; the good taste and decency standard aims to protect the general audience, while the fairness standard is concerned with individuals referred to in a broadcast. In this respect, the remedy that is to be achieved by any action taken is also slightly different.

[38]  Nevertheless, we find that the action taken in relation to good taste and decency was also inadequate. While the apology was directed at listeners as well as the named individuals, and conceded that the broadcast was in ‘poor taste’, in our view the language and tone of the apology were not strong enough to address the level of offensiveness of the broadcast. For similar reasons as set out at paragraphs [32] to [33] above, the apparent objectives of humour and entertainment did not come close to outweighing the potential to cause harm to the audience. We are therefore satisfied that upholding this aspect of the action taken complaint is a justified limit on the right to freedom of expression.

[39]  Accordingly we uphold the complaint that the action taken by MediaWorks in relation to IM’s good taste and decency complaint was insufficient.

Did the broadcast breach the privacy of A and/or B?

[40]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[41]  IM argued that the naming of A was in breach of privacy principle 4 because it was ‘intended to invoke a response from the audience’, and as a result A ‘received a number of indecent and offensive comments on her social media from a number of male persons’. Mr Ihaia argued that the announcers ‘intentionally pried on these women’s social media pages, infringed on their privacy by disclosing their real names and put these girls in a vulnerable position’. He cited privacy principle 3 of the Authority’s Privacy Principles.

[42]  Privacy principle 3 states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion, where the intrusion would be highly offensive to an objective, reasonable person. This principle is typically concerned with the broadcast of material that has been obtained covertly, for example by using a hidden camera, or by intruding on an individual’s privacy interests when they are in a location where they have a reasonable expectation of privacy (for example, in their home or on private property).⁸

[43]  In our view privacy principle 4 is more applicable in the circumstances, so we have focused our determination on this principle. Privacy principle 4 protects against the disclosure, without consent, of the name and/or address and/or telephone number of an identifiable individual. The disclosure must be highly offensive to an objective, reasonable person. This principle was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public.⁹

[44]  MediaWorks argued that, because ‘the announcers’ comments were based on a publicly viewable Instagram account (of which there could be no expectation of privacy)’, no private facts about the women were revealed. It also found that the identification of the women ‘was not done for the purpose of encouraging harassment of her by members of the public and no such instructions were given by the announcers’. MediaWorks said that ‘the purpose of the disclosure of [A’s] name was for a studio discussion about how some women use Instagram, not to identify her as a target for harassment’.

[45]  We accept that neither of the hosts disclosed the women’s names in the context of explicitly instructing listeners to harass these individuals. However, in a previous decision this Authority held that principle 4 should be extended to situations where harassment is a foreseeable consequence of the broadcast – in other words, where the disclosure of a name, address or telephone number has resulted in the harassment of an individual, due to the careless or negligent actions of a broadcaster.¹⁰ Here, in the context of a sustained discussion about ‘do-nothing bitches’ who are ‘rank’ and ‘look like hoes’, and which encouraged an ‘intervention’ in relation to such Instagram users, the hosts ought to have known there was a real possibility that the disclosure of the women’s full names would result in people contacting them or harassing them. The women’s names could identify their profiles to other Instagram users, which would in turn enable other users to comment on the women’s photos or to send them messages – as evidenced by the fact that on receipt of A’s name, Thane was apparently able, during the broadcast, to very promptly locate A on Instagram and view her photos.

[46]  Given the nature of the discussion, we are also satisfied that the disclosure of the women’s names would be highly offensive to an objective reasonable person in their position. As we have said, these women were singled out and subjected to sustained derogatory and sexist remarks. Neither of the women would have had cause to know beforehand that they would be named on air, and therefore were not in a position to consent to that disclosure. Although A did later engage with the hosts over the phone, this did not equate to consent to the initial disclosure of her name.

[47]  Accordingly we uphold the complaints that both A’s and B’s privacy was breached.

Did the broadcast encourage the denigration of, or discrimination against any section of the community?

[48]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[49]  IM argued that ‘users of the photo sharing platform Instagram’ could be categorised as a class of people or section of society to which the discrimination and denigration standard applied. She said that the comments ‘were clearly designed to bully, belittle, humiliate and denigrate’ A.

[50]  MediaWorks argued that as no ‘class of people’ or ‘section of society’ was referred to, and as ‘Instagram users of a certain type’ did not fall within either of these categories, Standard 7 did not apply.

[51]  The discrimination and denigration standard applies only to recognised ‘sections of the community’, which are consistent with the grounds for discrimination listed in the Human Rights Act 1993.¹¹ While we recognise that Instagram and other social media are increasingly popular and widely used, we are not persuaded that users of Instagram amount to a ‘section of the community’ as envisaged by the standard, as they do not fit within any of the listed categories. Additionally, we believe IM’s concerns about A have been adequately and appropriately addressed in our findings related to fairness and privacy.

[52]  We therefore do not uphold IM’s complaint under Standard 7.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[53]  The intent behind the law and order standard (Standard 2) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.¹² The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.¹³

[54]  IM did not make specific arguments under the law and order standard, but noted in relation to the outcomes sought that a complaint had also been made to the police under the Harmful Digital Communications Act 2015 as the actions of the hosts in ‘publicly intimidating, humiliating, falsely discrediting and defaming [A] is akin to cyber bullying and clearly breaches the [Act]’. MediaWorks maintained that nothing in the broadcast encouraged listeners to break the law or glamorised crime.

[55]  In our view, the complainant’s concerns that A was humiliated by the hosts have been adequately addressed as matters of fairness and privacy. It is not the role of this Authority to determine whether any offence has been committed; that is for the police and the courts.

[56]  Accordingly we do not uphold the Standard 2 complaint.

Did the broadcast breach the responsible programming standard?

[57]  The responsible programming standard (Standard 8) says that broadcasters should ensure that programme information and content is socially responsible. Guideline 8e states that programmes should not be presented in such a way as to cause panic, or unwarranted alarm or undue distress.

[58]  IM argued that the comments about A were ‘humiliating and defamatory’ ‘against a vulnerable member of the public’. She said that the actions of the announcers ‘caused undue distress not only to [A] but to other listeners’. MediaWorks did not consider that the broadcast was ‘socially irresponsible in the sense envisioned by the standard’.

[59]  We consider that IM’s concerns under this standard are better addressed as matters of fairness, good taste and decency and privacy. We do not think that the broadcast would have caused ‘panic’ or ‘unwarranted alarm’ to the general listening audience as envisaged by the standard.¹⁴

[60]  We therefore do not uphold the Standard 8 complaint.

Did the broadcast breach standards relating to controversial issues and accuracy?

[61]  IM also argued that the broadcast ‘lacked objectivity and balance’ and that Thane and Kara ‘made assumptions which were completely inaccurate and made up of unqualified statements of fact’.

[62]  The controversial issues standard (Standard 4) and the accuracy standard (Standard 5) apply only to news, current affairs and factual programming.

[63]  We are satisfied that the voice breaks during George FM Breakfast subject to complaint, which were interspersed between lengthy music segments, did not amount to news, current affairs or factual programming to which these standards applied.

[64]  We therefore do not uphold these aspects of IM’s complaint.

Name suppression

[65]  Given IM’s relationship with A, and that we have upheld aspects of her complaint including that the broadcast breached A’s privacy, we find it appropriate to suppress her details in this decision.

For the above reasons the Authority upholds the complaint that the action taken by MediaWorks Radio Ltd regarding the broadcast of George FM Breakfast on 10 September 2015, having upheld the complaint under Standards 1 and 6, was insufficient.

The Authority also upholds the complaints that the broadcast breached Standard 3 of the Radio Code of Broadcasting Practice.

[66]  Having upheld the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on provisional decision and orders

[67]  IM submitted, ‘the fact that MediaWorks continuously allow their broadcasters to cause harm through bullying, demeaning and humiliating young people is of public concern and I implore the Authority to impose the maximum penalties on this organisation to prevent further harm to other young people’. She explained that the actions of George FM had resulted in A being ‘subjected to ongoing, online bullying and abuse’, which has ‘taken its toll’. IM submitted that the broadcaster should be ordered:

• to publish an apology ‘with more formal dialogue which recognises the serious breach and harm caused to [A]’, naming both Thane and Kara and acknowledging that ‘their previous apologies were insincere’;
• to publish an apology to listeners, and in particular young women with eating disorders;
• to suspend broadcasting or to refrain from broadcasting advertising programmes;
• to pay A $5,000 in privacy compensation, to recognise ‘the severity and impact this has had on [her] well-being, reputation and dignity’ and to send a message to MediaWorks that ‘bullying, releasing private details and treating people unfairly is inappropriate and a serious breach of broadcasting standards’; and
• to pay the maximum $5,000 costs to the Crown.

[68]  MediaWorks explained that the apology was ‘given very careful consideration and treated with the utmost seriousness’, and was ‘scripted and pre-recorded to ensure... management were satisfied with the wording and tone’. It also said that the ‘tone of the apology was sincere, particularly when heard in the context of the usual sarcastic and irreverent tone’ used by the announcers. MediaWorks also pointed out that the apology was ‘broadcast immediately prior to the top-of-the-hour news bulletin’, which was a ‘position of significant prominence’. It maintained that in preparing the apology it had followed the Authority’s advice given in its earlier decision Durie and MediaWorks Radio Ltd.¹⁵

[69]  In relation to costs, MediaWorks submitted that ‘penalty costs are not warranted’ and that publication of the decision would be sufficient. It asked the Authority to recognise ‘the significance of the decision to suspend the hosts of one of George FM’s most popular shows and the significant disciplinary action taken against the hosts’, particularly since ‘the suspension occurred during the bi-annual Radio Survey: the commercially crucial period for radio stations when ratings data are collected’. When asked for clarification by the Authority, the broadcaster confirmed that the hosts were off air for a total of two weeks (one of which was during the Radio Survey).

[70]  MediaWorks further asked the Authority to ‘acknowledge the swift and earnest action taken by MediaWorks in response to the breach, particularly in issuing apologies to the identified individuals both privately and on-air’, when considering the question of orders.

[71]  Mr Ihaia did not make any submissions.

Authority’s response to submissions

[72]  The Authority stands by its view, set out in paragraph [31] above, that the on-air apology offered by Thane and Kara was insufficient to remedy what was a serious breach. We acknowledge MediaWorks’ view that it treated the situation seriously and took care when preparing the apology broadcast by the hosts. However we still do not think a proportionate level of redress was achieved for the young women who were named on air.

Authority’s decision on orders

Privacy compensation

[73]  Having found that the privacy of both A and B was breached, we consider awards of compensation are justified. We reiterate that this breach, having singled two women out and subjected them to sustained derogatory and sexist remarks, was at the serious end of the spectrum. We have taken into account the Authority’s previous compensation awards, and find that an award of $4,000 compensation to A for the breach of her privacy is appropriate. Because B was targeted and featured to a lesser extent in the broadcast, we find that an award of $2,000 compensation to B for the breach of her privacy is appropriate.

Costs to the Crown

[74]  The Authority also finds that an order of costs to the Crown is warranted to mark the departure from broadcasting standards on this occasion. As discussed above, we consider that the breach of standards of fairness, good taste and decency and privacy was at the serious end of the scale. In determining the amount of costs, we have taken into account that MediaWorks upheld aspects of the complaints and did take steps to remedy the breach and discipline the hosts (even though we have found that ultimately these did not achieve an adequate remedy for those affected). In all the circumstances and having regard to previous awards of this nature, we find an order for $2,000 costs to the Crown is appropriate.

Apology

[75]  In considering whether to order MediaWorks to broadcast another apology, we are mindful that we have found that the original broadcast breached the privacy of A and B. Nearly six months have now passed since the original broadcast, and in our view it would be difficult to issue a meaningful apology without compounding the damage to the individuals affected. For this reason we do not consider a further apology to be appropriate in the circumstances.

Other orders

[76]  We are satisfied that our decision combined with privacy compensation and an order of costs to the Crown are sufficient to mark the breaches of broadcasting standards on this occasion, and that no other orders – for example refraining from broadcasting – are warranted.

Orders

1. Under section 13(1)(d) of the Act, the Authority orders MediaWorks Radio Ltd to pay to A costs in the amount of $4,000 within one month of the date of this decision, by way of compensation for the breach of her privacy.

2. Under section 13(1)(d) of the Act, the Authority orders MediaWorks Radio Ltd to pay to B costs in the amount of $2,000 within one month of the date of this decision, by way of compensation for the breach of her privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

3. Under section 16(4) of the Act, the Authority orders MediaWorks Radio Ltd to pay to the Crown costs in the amount of $2,000 within one month of the date of this decision.

The order for costs will be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich

Chair

10 March 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint.

William Ihaia’s privacy complaint

1      William Ihaia’s direct privacy complaint to the Authority – 12 September 2015

2      MediaWorks’ response to the Authority – 9 October 2015

IM’s formal complaint

3      IM’s formal complaint – 14 September 2015

4      MediaWorks’ response to the complaint – 8 October 2015

5      IM’s referral to the Authority – 21 October 2015

6      MediaWorks’ response to the Authority – 20 November 2015

7      IM’s final comment – 25 November 2015

8      IM’s submissions on the provisional decision and orders – 11 February 2016

9      MediaWorks’ submissions on the provisional decision and orders – 12 February 2016

¹ http://www.georgefm.co.nz/Home/about.aspx

² http://www.georgefm.co.nz/DJs/GeorgeBreakfast.aspx#axzz3x5FrBi9D

³Hosking v Runting [2005] 1 NZLR 1 (CA), paragraph [30] 

⁴ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁵ Durie and MediaWorks Radio Ltd, Decision No. 2014-052

⁶ Turner and Television New Zealand Ltd, Decision No. 2008-112

⁷ Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)

⁸ See, for example, Cave and MediaWorks TV Ltd, Decision No. 2015-026; Harkema and TVWorks Ltd, Decision No. 2012-042

⁹ See, for example, Spring and The Radio Network Ltd, Decision No. 2007-108

¹⁰NJ and APNA Networks Ltd, Decision No. 2010-066 at [14] to [15]

¹¹ https://www.hrc.co.nz/enquiries-and-complaints/what-you-can-complain-about/

¹² See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

¹³ Hunt and Māori Television, Decision No. 2009-010

¹⁴ For an example of a broadcast that was found to breach this guideline, see Simpson and TVWorks Ltd, Decision No. 2012-019

¹⁵Decision No. 2014-052