BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Breeze ran a competition in which listeners were invited to nominate an individual they felt to be deserving of a shopping spree. The programme hosts spoke to a woman (G) on air about her nomination of her friend (N), whom she described as just having left a ‘potentially abusive relationship’. The Authority upheld a complaint from N’s husband, LN, that the broadcast breached his privacy. The Authority found that LN was identifiable due to a combination of identifying features disclosed within the broadcast and readily accessible information outside of the broadcast. It considered the allegations of a potentially abusive relationship and other intimate details of the relationship were highly sensitive and personal, and clearly carried the quality of private information. The disclosure of such information would be highly offensive to an objective reasonable person.

Upheld: Privacy

Order: Section 13(1)(d) – privacy compensation to the complainant $1,000

Introduction

[1]  The Breeze ran a competition in which listeners were invited to nominate an individual they believed to be deserving of a shopping spree at a local department store. The programme hosts spoke to a woman on air, G, who had nominated her friend N for the prize. G described N as just having left ‘a potentially abusive relationship’. G and N were then announced as the winners of the shopping spree.

[2]  LN, N’s husband, complained directly to the Authority that private details about his relationship with his wife were disclosed on air, which was highly embarrassing and distressing for him and his two children.

[3]  The issue is whether the broadcast breached the privacy standard as set out in the Radio Code of Broadcasting Practice.¹

[4]  The programme was broadcast on The Breeze on 15 March 2016. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach the complainant’s privacy?

[5]  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.

Was LN identifiable?

[6]  When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.²

[7]  LN argued that he, as well as N and G, were identifiable through the combination of details disclosed in the broadcast, as well as easily obtainable information outside the broadcast. He demonstrated that it was possible to easily find N’s and G’s full names by conducting Google searches using the information given about the two women during the programme. LN also considered that the lack of immediate monitoring of comments on the radio station’s Facebook page, which featured N’s and G’s full names, contributed to identification. He further noted that it was an assumption on the broadcaster’s part that his and his wife’s close friends and family would be aware of the matters dealt with in the broadcast.

[8]  MediaWorks argued that only N’s first name was disclosed in the broadcast and that even if LN was identifiable by association, it would only have been to family or close friends who could reasonably be expected to know about the relationship matters mentioned.

[9]  LN did not participate in the broadcast, so the first question for us is whether N was identifiable, and then whether LN in turn was identifiable through a reference in the broadcast to ‘[N] and her husband’. The following details were disclosed on air during the hosts’ conversation with N’s friend G:

• the first names of N and G
• that N and her family had moved three years ago from the North Island to a named town in the South Island
• that N and G were leaders in a named local community group in that town.

[10]  In our view, these details were sufficient to enable N to be identified beyond her family and close friends. It is reasonable to assume that the community group in which N and G are heavily involved is relatively close-knit, and any listeners who were involved in this group would likely know the identities of the two women discussed. Colleagues and other acquaintances would also likely have been able to identify N on the basis of the information disclosed.

[11]  The question then is whether LN, through the reference to ‘[N] and her husband’, was identifiable by association. We are satisfied that he was – particularly when combined with information easily accessible outside the broadcast. As the complainant pointed out, posts on The Breeze’s Facebook page disclosed the surnames of N and G, and a simple Google search of N’s and G’s first names in conjunction with the community group and the town also generates their last names. Anyone who was able to identify N, who also knew her husband, would know who was being referred to.

[12]  We do not agree, as the broadcaster suggested, that all of the people who could identify N and LN could reasonably be expected to know personal relationship details of the nature discussed in the broadcast. These are details that many people might choose to keep private, even from some family and friends. We therefore find that the test for identification has been met (see [6] above).

Did the broadcast disclose private facts about LN?

[13]  The next question is whether the broadcast disclosed any private information about the complainant. Privacy principle 1 of the Authority’s privacy principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective, reasonable person. A ‘private fact’ is information which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.³

[14]  The relevant segment of the programme was as follows:

Host: So why did you nominate [N] for $1,000 worth of shopping...?

G: Well, for a wee while I’ve known that things haven’t been good at home between her and her husband and it came to a head last year... and she had to move out. It became potentially an abusive relationship. And she needed to move out for her safety and for the kids’ safety as well. And in that process she lost a huge amount of weight and she’s got no clothes that fit her...

Host: Right, she needs a new wardrobe. I’m the perfect lady for her.

[15]  Sensitive information about close personal relationships will typically attract a reasonable expectation of privacy. In this broadcast details were disclosed about LN’s relationship with his wife which were highly sensitive and personal (whether or not they were true)⁴. This is the kind of information which in our view was LN’s to choose to share with people or not, and he would not have expected it to be broadcast on live radio. We are therefore satisfied that the broadcast did disclose private facts about LN.

Was the disclosure highly offensive?

[16]  LN said that he and his children found the broadcast highly distressing and embarrassing. He acknowledged that broadcasters may not be able to control what is said by participants live on air, but considered participants should be told what can and cannot be discussed regarding sensitive subject matters prior to broadcast.

[17]  MediaWorks explained that the hosts had no indication that G would mention N was in a ‘potentially abusive relationship’ on air, and they did their best to move on from that comment and avoid mentioning those details again. It considered N’s home life was a relevant detail in the context of the ‘win-a-wish’ style competition, and this detail was presented in a matter-of-fact manner without any apparent malice or intention to identify the complainant.

[18]  For the reasons we have outlined above, we are satisfied that disclosing this information about LN’s relationship on air (including the allegation of a ‘potentially abusive relationship’), which was highly sensitive in nature and had the potential to be damaging for the complainant, would be highly offensive to an objective reasonable person.

Conclusion on privacy

[19]  We wish to make some comments on the parties’ submissions relating to the fact that G’s comments about N’s and LN’s relationship were unanticipated and so the broadcaster’s view was that it was not in a position to curtail the disclosure.

[20]  We requested further information from the broadcaster on this point, specifically what information G disclosed to the radio station in her nomination of N for the competition, and what correspondence or conversations (if any) the radio station had with G prior to the broadcast. The broadcaster provided us with a copy of G’s online competition nomination form, which stated that N had recently separated from her husband, but did not state that N was in a ‘potentially abusive relationship’. The broadcaster also advised that while radio staff had one conversation with G prior to the broadcast, she did not discuss any additional matters apart from what was already outlined in her entry form, and it considered it ‘had no reason to be concerned’.

[21]  We accept that the allegation of a ‘potentially abusive relationship’ was made in the context of a live on-air discussion and that it came as a surprise to the hosts, who did not have any prior indication that G would discuss such matters. We also appreciate the challenges that broadcasters face in managing live content. That being said, it remains the broadcaster’s responsibility to ensure that broadcasting standards are maintained and to be alert to what callers or other third parties may say over the airwaves.

[22]  In this case, G did mention in her entry form that N had separated from her husband as a contributing factor to her nomination, so in the prior conversation with G the hosts could have cautioned her not to disclose sensitive details about N’s relationship with her husband on air. This was also the type of segment that could have been pre-recorded to reduce the risk of broadcasting spontaneous comments that may breach the standard.⁵ We are not suggesting that the broadcaster facilitated or encouraged the breach of privacy in this instance, but the unfortunate outcome is that the complainant’s privacy interests have ultimately been undermined.

[23]  In the circumstances, we are satisfied that upholding the complaint would not place an unreasonable limit on the broadcaster’s right to freedom of expression and that LN’s privacy interests outweighed the exercise of free speech on this occasion.

[24]  We therefore uphold LN’s complaint.

Name suppression

[25]  As we have found LN’s privacy was breached, we have suppressed his name and other identifying details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of an item on The Breeze on 15 March 2016 breached Standard 3 of the Radio Code of Broadcasting Practice.

[26]  Having upheld the complaint, 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 orders

[27]  LN submitted that the following orders would be appropriate:

• compensation in the sum of $5,000 for the ‘high level of distress and embarrassment’ caused to him and his children as a result of the broadcast
• costs to the Crown
• broadcast of a statement about the decision
• costs to compensate him for the time he spent in making submissions during the formal complaint process and to compensate him for the mental stress caused by the broadcast.

[28]  MediaWorks accepted that a breach of broadcasting standards had occurred and apologised for the breach. It reiterated its view that there was no intent on behalf of The Breeze to elicit private information about LN from the caller, and that the announcers acted quickly to ‘steer the conversation to safer ground’ once the private information was disclosed. It maintained this was an isolated incident in The Breeze group of radio stations.

[29]  MediaWorks accepted the Authority’s recommendations outlined at paragraph [22] regarding live on-air broadcasts, and said it discussed these with The Breeze Programme Director, who would raise this issue with all announcers across the brand. MediaWorks also undertook to incorporate these recommendations into its code of conduct and broadcasting standards training for all MediaWorks radio stations.

[30]  In addition, the broadcaster noted that The Breeze Operations Manager had apologised to LN and his relative when they contacted the station at the time of the broadcast. It offered to provide the complainant with a further written apology from the Operations Manager, and submitted this would be an adequate remedy in light of the other steps taken.

Authority’s decision on orders

[31]  We have had regard to both parties’ submissions.

[32]  Having found that LN’s privacy was breached, we consider an award of compensation is justified. Privacy compensation, as its name suggests, is a compensatory award which is concerned with the harm suffered by an individual, rather than the level of culpability of the broadcaster. Having regard to the sensitive and potentially damaging nature of the allegation against LN, we consider some harm occurred. Taking into account the Authority’s previous compensation awards, we find that an award of $1,000 is appropriate.

[33]  An order of costs to the Crown, on the other hand, is a punitive award and so does take into account the actions of the broadcaster. These costs are usually ordered to mark a significant departure from broadcasting standards. We do not consider this type of punitive order is warranted in this case. Once the breach of privacy occurred, the broadcaster’s actions to some extent mitigated the impact of the breach. MediaWorks accepted that a breach occurred, apologised to the complainant at the time of the broadcast, and discussed the breach with staff, including how to minimise the likelihood of a similar breach occurring in future. It has also incorporated the Authority’s recommendations into its staff code of conduct and broadcasting standards training. We acknowledge that there was no intent on the broadcaster’s behalf to breach LN’s privacy, and we think that once MediaWorks found itself in this situation it acted responsibly to address the breach.

[34]  In our view it would be difficult to issue a meaningful public statement without compounding the breach of LN’s privacy, given that we have upheld the privacy complaint and suppressed the complainant’s name and other identifying details in the decision. Therefore we do not consider a broadcast statement would be appropriate in the circumstances, though the publication of this decision will mark the breach of broadcasting standards in this respect. We also note MediaWorks’ offer to provide the complainant with a personal written apology. We consider this would be appropriate, and invite the broadcaster to arrange this.

[35]  Section 16(1) of the Broadcasting Act 1989 allows the Authority to make an award of costs to a party to a complaint. The purpose of an award of costs is usually to recompense in part a successful complainant for legal, or other, costs which have been incurred during the complaints process.⁶ We appreciate that all complainants expend time and effort to go through this complaints process. However, we do not think LN has demonstrated that he has incurred any additional, demonstrable costs as envisaged by the legislation.

Order

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

Signed for and on behalf of the Authority

Peter Radich
Chair
22 August 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      LN’s direct privacy complaint to the Authority – 16 March 2016
2      MediaWorks’ response to the Authority – 19 April 2016
3      LN’s final comment – 3 May 2016
4      MediaWorks’ final comment – 13 May 2016
5      Authority’s request for further information from MediaWorks – 1 June 2016
6      MediaWorks’ response to request for further information – 3 June 2016
7      LN’s submissions on the provisional decision and orders – 12 July 2016
8      MediaWorks’ submissions on the provisional decision and orders – 19 July 2016

¹ This complaint was determined under the previous Radio Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

³ Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)

⁴ The Authority has previously found that information disclosed can have the quality of private information whether or not it was true: see Hill and Radio One, Decision No. 2013-074 at [15]

⁵ See, for example, B and HB Media Group, Decision No. 1997-138-139

⁶ See Practice Note: Awards of Costs to Complainants (Broadcasting Standards Authority, June 2012)