BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

On two occasions on 31 July 1998 between 9.00-9.30am, a caller to Hot 93FM referred to the winner of an on-air competition as "That bitch E…C…". The caller said she had helped the winner with the answers to the competition, but that the winner had refused to share the prize of a dinner for four. Station staff then made two hoax calls in a similar vein.

Ms C, the winner of the competition, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that her privacy was breached by the broadcast. She also complained directly to the station that it contravened the requirement for broadcasters to observe standards of good taste and decency. She reported that she had been extremely upset by the calls.

The Radioworks Hawkes Bay said it had apologised to Ms C immediately it became aware that she was upset at the calls. It reported that its breakfast team had assumed she would have been a good sport about the calls and enjoyed the attention, but unfortunately that was not the case. It did not believe, it wrote, that it breached any broadcasting standards.

Dissatisfied with the station’s response to her standards complaint, Ms C referred that aspect to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that standard R2 of the Radio Code of Broadcasting Practice was breached.

Decision

The members of the Authority have read the correspondence (summarised in the Appendix). On this occasion, the Authority determines the complaint without a formal hearing.

The Authority first deals with the matter that no tape of the programme was provided. It understands that a tape was available when the complaint was lodged but was subsequently wiped. The Authority records that it has not been assisted by the broadcaster’s actions in not retaining the tape. It reminds the broadcaster that it is required to retain tapes in certain circumstances for a period of 35 days. It considers it surprising that the broadcaster erased a tape knowing that the matter was the subject of a complaint.

The Authority also records that it has acceded to the complainant’s request that her name be suppressed.

Next the Authority turns to the substance of the broadcaster’s response to the complaints. It refers to s.5 of the Broadcasting Act, which provides that an individual can make a formal complaint about a broadcast. Although there is provision for an informal resolution of a complaint, it is for the complainant to decide whether an informal process satisfactorily resolves their complaint. On this occasion, the complainant was not satisfied with the broadcaster’s informal response on the telephone, and pursued the matter by making a formal complaint. The Authority reminds the broadcaster that it had an obligation to respond in accordance with the Act, or to advise the complainant of her right to refer the complaint to the Authority as provided under s.7(3) of the Broadcasting Act.

In addition, the Authority directs the broadcaster to s.8(1)(c) of the Act which provides that a complainant who alleges a broadcast breached their privacy may refer the complaint directly to the Authority. The broadcaster expressed surprise that a copy of its response to the Authority on this aspect of the complaint was referred to the complainant, and it was not given an opportunity to resolve the matter informally. The Authority points to the provision in s.10(2)(c) which requires that it observe the principles of natural justice. One way of ensuring that requirement is satisfied is by ensuring that the parties have copies of all of the correspondence which is before the Authority.

Privacy

Turning to the substance of the complaint, the Authority first deals with the alleged breach of privacy. It understands that Ms C was the winner of a breakfast show competition, and that when her name was announced, a caller telephoned the station and described her as "That bitch E…C…" because she would not share the prize of a dinner for four. Calls in a similar vein followed, and on each occasion Ms C’s name was used.

When it deals with a privacy complaint, the Authority applies a set of privacy principles which were enumerated in an Advisory Opinion dated 6 May 1996. On this occasion it tests the facts against principles (iv), (v) and (vii).

Principle (iv) 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.

Ms C complained that she did not like being made fun of, and that although she knew the identity of the first caller, she did not appreciate the efforts of the station staff when they made the hoax calls.

In response, the broadcaster emphasised that the calls were intended to be in good fun, and that it expected Ms C, a regular caller to the station, to be a "good sport and enjoy the attention". It noted that as soon as she telephoned to complain, it ceased broadcasting the calls. It also apologised to her.

The Authority does not consider the reported comments went so far as to contravene this principle. No private facts were revealed, and although Ms C believed she was being made fun of, the Authority concludes that the remarks did not abuse, denigrate or ridicule her.

Principle (v) reads:

The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

The Authority notes that Ms C’s name was mentioned on several occasions in connection with the competition she had won, and in the subsequent calls. By entering the competition, the Authority notes, she had consented to the announcement of her name as winner. However, she had not consented to the use of her name in the series of subsequent calls. In assessing this aspect, the Authority turns to principle (vii) which provides:

(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy.

Ms C’s name was in the public arena because she had entered, and won, the breakfast show competition. The Authority concludes that although she had undoubtedly only consented to its use in the context of the competition, she was not in a position to assert her right to privacy subsequently. The question of whether it was offensive for her name to be used in the context of the hoax calls is a matter which the Authority examines below.

The Authority concludes that no privacy breach occurred.

Standard R2 – good taste and decency

Ms C asserted that it was a breach of the good taste standard to describe her as a bitch in the series of calls which were broadcast. It was her understanding, she wrote, that the calls were all pre-recorded and therefore the broadcaster had the opportunity to screen out unsuitable calls. She stressed that the incident had distressed her greatly. In her view, the station manager and his staff appeared to be treating the matter very lightly and, she believed, obviously wanted the matter dropped.

The broadcaster explained that as Ms C had been a regular caller to the breakfast show, the breakfast team thought it appropriate to play the first call, believing she would see the funny side. This was followed by another call, and then the breakfast team went on to fabricate two further calls but, the station argued, it had all been in good taste. It maintained that the term "bitch" was only used in the first call, while the other calls referred to "bloody E…C…". In its response to Ms C, the broadcaster acknowledged that the hosts had gone "too far without thinking it through properly", and advised that the breakfast team, who had been "severely reprimanded", had expressed their apologies. However, in its response to the Authority, the broadcaster defended the breakfast team’s decision to broadcast the calls, saying that it believed they "made the right call but obviously with the wrong person." It said it did not consider the good taste standard was breached.

The Authority was not assisted in determining this complaint by the fact that no tape was retained.

On the basis of what it has deduced from the correspondence, the Authority considers that the broadcast involved a joke which seriously backfired. In the Authority’s view, the station made a questionable decision when it broadcast the first recorded call which described Ms C as a bitch. Moreover, that was compounded by its decision to persist with what it considered was a joke. Clearly, the complainant considered the joke went too far. The Authority agrees. It finds that it was offensive not just to Ms C, but to all listeners, that a named person was described as a bitch. The Authority notes that this is a word which retains a pejorative meaning unless it is clearly used within the context of humour. In reaching its decision, the Authority notes that the station made a considered decision to broadcast the call and that it was not as if it were live and unexpected. It is apparent to the Authority that the station totally misjudged the effect on the victim when it perpetuated a "joke" at her expense. Accordingly, the Authority concludes that the broadcast breached standard R2.

For the reasons set forth above, the Authority upholds the complaint that a broadcast on Hot 93 FM (The Radioworks Hawkes Bay) on 31 July 1998 betweeen 9.00–9.30am breached standard R2 of the Radio Code of Broadcasting Practice.

It declines to uphold the privacy complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) and s.16 of the Broadcasting Act 1989. The Authority invited submissions from EC and The Radioworks on the question of penalty. It accepted the station’s assurance that no pejorative meaning was intended and concluded that, in the circumstances, no monetary penalty was required. Given that an on-air apology would have the potential to raise the issue in the public again, the Authority decides that the station’s offer of a formal written apology is appropriate. It therefore orders The Radioworks to write a formal letter of apology to EC.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
22 October 1998

Appendix

Ms C’s Complaint to the Broadcasting Standards Authority – 6 August 1998

Ms C of Hastings complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that a broadcast on Hot 93FM on 31 July between 9.00–9.30am breached her privacy. In a separate letter to the station, she also complained that it breached the good taste standard.

Ms C was the winner of a competition, the prize for which was a dinner for four. After her win was announced, a caller phoned the station and, describing her as "That bitch, E… C…", said she had given her two of the answers which helped her win the competition, but that she would not take her out to dinner. In a second call, the caller said that she had programmed the station’s number into Ms C’s fast dial and again referred to her as a bitch for not taking her out to dinner. A third call, in a similar vein said that the caller gave Ms C an early wake-up call so that she could phone in for the competition, and a fourth caller said she had provided the paper for her to write the answers on. All referred to her as a bitch, she wrote.

Having heard the series of calls, Ms C telephoned the station and asked for the calls to be stopped immediately. The station manager said he would speak to the announcers and ring her back, which he did. Ms C wrote:

He [the station manager] told me the first two calls were genuine and the others were radio station staff and because I was a regular caller and liked a bit of fun they though I would appreciate the calls. I did not. I was very upset and distressed. I thought as they prerecord all calls they choose what to play on air.

She asked the Authority to take action on her behalf to prevent it happening to her again or to anyone else. She said she did not want any reference to the matter to be broadcast or published, as she had suffered enough distress and upset.

In a separate letter to the station, dated the same day, Ms C complained formally that the broadcast breached the good taste and decency standard. She emphasised that she was extremely upset and distressed by the broadcast.

The Radioworks’ Response to the Authority – 11 August 1998

The station manager advised that he was surprised to receive the complaint as he understood Ms C had accepted the station’s apology and was prepared to leave it at that. Consequently, he reported, he did not retain a tape of the incident.

The station manager wrote:

My understanding of the incident is that E…C…entered and won a competition with the prize being a dinner for 4. Following the on-air announcement of her winning, our breakfast team received a call from one of Ms C’s friends stating that they had helped her with the answers but that she was a bitch as she wouldn’t share the prize.

He noted that as Ms C was a regular caller to the show, the breakfast team felt it appropriate to play the call believing she would see the funny side. This was followed by another of her friends calling the station with a further "fun and cheeky comment". Then the station admitted, the breakfast team went on to fabricate another couple of calls "all in good taste". The term "that bloody E…C…" was also used, it acknowledged, but the word bitch was only mentioned in the initial phone call.

After receiving Ms C’s phone call, the station immediately ceased all comments about her. The station manager advised that had the breakfast team known they upset her, they would never have gone down that road. It added:

However, as she regularly gave cheek to others, on-air, they thought she would be a good sport and enjoy the attention, unfortunately this was not the case.

The station manager noted that when he apologised to Ms C she told him that although she knew who the first caller was, she did not like being made fun of. He said he offered to arrange an on-air apology, but following a discussion it was agreed that to do nothing was appropriate. She advised that she accepted the apology.

The station manager maintained that his breakfast team knew what was tasteful and what was not. He said that he believed they made the right call, but with the wrong person. He added:

E…C… accepted our apology and as far as I am concerned taking this matter any further will just be a waste of time.

In a separate letter to Ms C., dated 11 August, the station responded to her complaint to the station.

The station manager said he was surprised to receive her formal complaints, as she had told him that she would accept the apology.

It noted that she had been a regular caller to the station, and said that the hosts had considered it appropriate to play the calls, believing she would see the funny side. Immediately she had telephoned to complain, it noted, the comments had ceased.

In addition, the station pointed out that it had apologised for "going too far without thinking it through properly". It reminded her that she had accepted the apology.

The station then reported that it had severely reprimanded the hosts and that they had asked the station manager to convey how sorry they were for the distress caused.

The station manager concluded by suggesting that it was best to put the matter behind them, as dwelling on it could only make it worse.

Ms C’s Response to the Authority – 17 August 1998

Ms C confirmed that the basis for her complaints was on the grounds of the good taste standard and the privacy of the individual.

Ms C said she was surprised to learn that the station manager believed he made "the right call but with the wrong person" and yet he had advised that the hosts had been "severely reprimanded". She said that she was sure that she heard the words "that bitch" used more than once.

Ms C said she was disappointed the station had wiped the calls off the tape as she would have liked the Authority to have heard them.

Referring to the station’s suggestion that she could hand it out but not take it, she said that she had never referred to anyone on air as "that bitch" or "that bloody" and never would. In her view the station had treated the incident very lightly and obviously wanted it dropped.

Ms C said she was happy to leave the matter of which standards were breached to the Authority.

The Radioworks’ Response to the Authority – 20 August 1998

According to the station manager, it was unfortunate that the Authority had felt it necessary to send a copy of his letter to Ms C. It was his view that but for that action, the matter would already have been over.

He advised that there was no tape of the incident available as the complainant told the station that she accepted the apology and would leave it at that. There was no transcript available either.

Ms C’s Final Comment – 25 August 1998

Ms C said that she did not mind that the Authority had forwarded the station’s letter to her. She considered that as she had been frank and honest, so should the broadcaster. She disputed the station’s contention that had she not seen the station’s letter, she would not have pursued the matter. She repeated that she felt very strongly about the matter and believed the Authority should make a ruling on it.

Ms C also observed that it was a pity the station had wiped the tape. She denied that she had accepted the apology and had agreed to leave the matter.