BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

"The ring is to be found in a boot under Sam Hunt's bed." That was the answer to a ZMFM

promotion in Wellington which involved broadcasting a clue each morning and asking

listeners to locate the imaginary location of a diamond ring worth $3000.

Mr Hunt complained to the Broadcasting Standards Authority under s.4(1)(c) of the

Broadcasting Act 1989 that the promotion breached his privacy as he had not given his

permission for the broadcaster to use his celebrity status and as it alluded to the location of

his home which he tried to keep private.

Agreeing that Mr Hunt's permission for the promotion had not been sought, Radio New

Zealand Ltd pointed out nevertheless that the location of the prize was imaginary and had

been changed following his complaint. It did not accept that the broadcasting privacy

standard had been breached as the only reference to the location of Mr Hunt's home

involved information which it maintained was part of the general knowledge of most

Wellingtonians.

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

Decision

The members of the Authority have listened to a tape of some of the broadcasts complained

about and have read a transcript of the clues of the promotion. They have also read the

correspondence (summarised in the Appendix). As is its practice, the Authority has

determined the complaint without a formal hearing.

A promotion run by ZMFM in Wellington involved the imaginary location of a diamond

ring worth $3,000. A new clue was given each morning and the first three callers were

then given the opportunity to guess the precise location. The original imaginary hiding

spot was in a boot under poet Sam Hunt's bed.

Ms Tracy Medland, Mr Hunt's manager, complained to ZMFM that the contest breached

his privacy whereupon the imaginary location was changed. Following the broadcaster's

action, Ms Medland complained to the Broadcasting Standards Authority that the

promotion had blatantly breached Mr Hunt's privacy in contravention of s.4(1)(c) of the

Broadcasting Act 1989. That provision requires broadcasters to maintain standards

consistent with the privacy of the individual.

Ms Medland alleged that Mr Hunt's privacy had been breached as the ZMFM promotion

had used his celebrity status without his consent. Furthermore, although Mr Hunt went

to great lengths to keep the address of his home secret, the broadcast had alluded to its

physical location and that had involved a security risk.

RNZ advised the Authority that the location of the ring – and the clues – had been changed

following the complaint. It reported that the general location of Mr Hunt's address – a

boathouse at Paremata – was a well-known piece of general knowledge in Wellington.

Agreeing that the promotion should not have gone forward without Mr Hunt's

permission, RNZ nevertheless maintained that the privacy principles applied by the

Authority in determining complaints under s.4(1)(c) had not been breached.

The Authority began its examination of the complaint by assessing whether ZMFM's

broadcasts breached the privacy principles by the Authority. Principles (i) and (iii) were

possibly relevant to the complaint and they provide:

i) The protection of privacy includes legal protection against the public

disclosure of private facts where the facts disclosed are highly offensive and

objectionable to a reasonable person of ordinary sensibilities.

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.

Dealing first with principle (i), the Authority decided that a broadcast which, despite the

reference to the boathouse, only alluded in a general way to the area in which Mr Hunt

lived and such a general reference would only be highly offensive and objectionable in

extraordinary circumstances. As such circumstances did not apply to the current

complaint, the Authority decided that principle (i) had not been breached.

Prying by a broadcaster is the type of behaviour which is prohibited by principle (iii).

Although the behaviour of contestants searching for the diamond ring could entail prying,

the Authority accepted that the behaviour of the broadcaster in itself – because it did not

encourage prying given the imaginary nature of the contest – did not contravene principle

(iii).

An increasing number of complaints received by the Authority in recent months have

alleged a breach of the privacy standard. Because the concept of privacy which a

complainant maintains was breached by the broadcaster sometimes differs substantially

from the concept of privacy applied by the Authority, in its efforts to balance the

competing demands of the broadcaster and the individual, the Authority has recently

issued an Advisory Opinion on the matter. The Opinion records that when the Authority

now receives a complaint about privacy – the only ground under which it can accept a

complaint directly – it will advise the complainant that the matter could well be taken up

with the broadcaster as a breach of standards in addition to the privacy aspect.

One example is given to point out the reason for this action. A privacy complaint only

involves the disclosure of highly offensive facts. Accordingly, the broadcast of abuse,

which the recipient might well feel to be breach of privacy, is not an appropriate ground

for upholding a complaint alleging a breach of privacy. The abuse broadcast however

might well contravene one or more of the other broadcasting standards. The Authority

noted that this complaint was received prior to the adaption of this policy.

With Mr Hunt's complaint, a complaint to the broadcaster alleging a breach of standard

R5 of the Radio Code could well have resulted in a different outcome. It requires

broadcasters:

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

programme.

Despite not upholding the privacy complaint, the Authority noted that RNZ acknowledged

that it had overlooked obtaining consent from Mr Hunt or his agent before proceeding

with the promotion. Mr Hunt described ZMFM's attitude to his concerns as "crassly

irresponsible". The Authority agreed and was very surprised that such a common courtesy

had been overlooked by the broadcaster.

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

complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
8 September 1994

Appendix

Mr Hunt's Complaint to the Broadcasting Standards Authority

In a letter dated 3 May 1994, the manager for Mr Sam Hunt of Wellington, Ms Tracy

Medland, complained to the Broadcasting Standards Authority that a number of

broadcasts involving ZMFM's Rock of the 90s promotion breached Mr Hunt's 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.

Ms Medland stated that the promotion gave the hidden destination of a jewel and that the

answer was in a boot under Sam Hunt's bed. However, on the grounds that the promotion

breached Mr Hunt's privacy and involved a security risk, she reported that the station

manager had been persuaded to change the final location.

Despite that change, Ms Medland persisted with the complaint as ZMFM had used Mr

Hunt's celebrity status in the promotion without his permission. Furthermore, it should

not have referred to his address and she commented:

Although the promotion did not give out the full address of Mr Hunt, it alluded to

the physical location and Mr Hunt goes to great lengths to ensure this information

is kept private.

The letter concluded:

As a public figure Mr Hunt is open to being in the public eye however he believes

this particular promotion was a blatant invasion of personal privacy and highly

unacceptable.

RNZ's Response to the Broadcasting Standards Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter is dated 9 May 1994 and RNZ's reply, 30 June.

RNZ outlined the events preceding the complaint to the Authority which included Ms

Medland's "peremptory" demand on 26 April to the station manager for immediate action

with regard to the promotion. Ms Medland was advised that the imaginary location of

the ring would be changed and the announcers were instructed accordingly. RNZ

continued:

In announcing [the change] the "Morning Crew" made some allusion to Sam

Hunt's having been telephoned by "some egg-burgers" to ask him where the ring

was. Since there is no entry for Sam Hunt in telephone directories and a telephone

number for him was certainly not broadcast (he may not even be on the 'phone),

how this occurred would be a mystery. The on-air reference appears to be merely

"commentator's licence", to drive home the fact to listeners that the location had

been changed, with Sam Hunt no longer associated with the diamond ring

treasure-hunt.

The promotion RNZ explained, had invited listeners to identify the make-believe location of

a $3000 diamond ring.

Each weekday morning shortly after 7:40am, starting on 11 April, the "Morning

Crew" gave a clue to listeners, following which three telephone calls were taken

from listeners who thought they could name the predetermined imaginary

location, thus winning the prize.

A similar location involving a "mountain of beer" in another imaginary location had been

run by the station some six months previously.

RNZ reported that a casual question to a number of people asking - where did Sam Hunt

live - drew the response (from the majority who knew who Sam Hunt was) of a boathouse

at Paremata. Accordingly, RNZ argued:

Under these circumstances, the Company is not prepared to accept, whatever

lengths Mr Hunt may go to currently to guard as secret the general location of his

dwelling (and this complaint concerns the general whereabouts, not specific address

or telephone number) that many people do not already know it. The Company

suggests that a careful distinction should be drawn between exact site details and

specific identification of Mr Hunt's boatshed dwelling, and mention of the general

area. Only the last took place, and it is nothing new to many members of the

public.

The general area and nature of Sam Hunt's dwelling, RNZ maintained, was now general

knowledge in the Wellington region - ZMFM's target zone.

RNZ then considered the five privacy principles used by the Authority in determining

complaints which alleged a breach of privacy. The broadcasts had not disclosed highly

offensive private facts and had not involved "prying". The "public interest" and consent

defences were considered not applicable.

Conceding that the publication of an exact address or telephone number (if any) might

amount to a breach of privacy in view of Sam Hunt's status, RNZ pointed out that the

information published - in the progressive clues supplied to the Authority - only gave the

general location of Sam Hunt's boatshed.

RNZ finished by accepting that neither Sam Hunt nor his agent were informed of the

promotion nor was their agreement gained to the use of his name. Pointing out that this

matter was not a matter of broadcasting privacy to which the complaint referred, RNZ

noted that its managerial staff had been reminded that broadcasts of this nature which

involve identifiable persons should be made unless the person to be mentioned has agreed.

In addition, all staff had been circulated with the five privacy principles applied by the

Authority in determining privacy complaints under s.4(1)(c) of the Act.

Mr Hunt's Final Comment to the Authority

When asked whether he wished to reply to RNZ's comments, in a letter dated 10 July

1994, Mr Hunt made the following points:

Denying that Ms Medland's action was "peremptory", he recalled ZMFM's unsatisfactory

response to the complaint on his behalf and explained that his son had answered

numerous telephone calls from contestants. He added:

I realise this is "just a competition". But for ZMFM to assume - to my possible peril,

not theirs - that one and all of their listeners fully understood the light-hearted

nature of the competition is crassly irresponsible.

He also pointed out that his telephone number, although not in the directory, was

available through directory service which meant that the broadcast was a security risk as

it would enable potential intruders to ascertain whether or not he was home. The

reference to the promotion for the mountain of beer in the Michael Fowler Centre, he

pointed out, was irrelevant, observing:

ZMFM should be reminded that "theatre of the mind" is a very tricky area. Surely

they should know this. They don't know their audience individually, they can have

no idea whatever of the reaction of each individual.

The only potential victim can be the main player in this "theatre". That main

player - without consultation, consideration - was myself.

He explained that previous media reports had avoided at his insistence giving the specific

location of his boathouse because he believed that obsessed people might carry out their

threats. He commented:

When I've been approached for any story/promotion, I've always given the

proposition fair consideration. Consultation has always been at the heart of any

such matter - which is after all the requirement of good manners and professional

responsibility.

In conclusion, he recorded:

For ZMFM to take we-didn't-mean-any-harm attitude, or we-didn't-think

attitude, is not, in my opinion, good enough. Instead, I've been made to feel I've

been acting somewhat preciously in my action to protect that greatest freedom -

privacy. ZMFM's refusal to act immediately on this crucial matter strikes me as

incredibly arrogant and high-handed.