BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A segment on Thane & Dunc included an interview with a man, X, who had a relationship with a couple (the complainant and Z). During the interview, X described the nature of the relationship. He did not name the couple, referring to them as ‘A’ and ‘B’. A second interview with X was broadcast the following day, during which the hosts told X they had spoken with the couple, who alleged the relationship was abusive. The hosts interrogated X about his behaviour, then demanded X apologise and agree to make no further contact with the couple involved. The Authority upheld a complaint that these broadcasts breached the privacy of the complainant and Z. The Authority found that little, if any, sensitivity or respect was shown for the dignity, safety, reputation and mental wellbeing of the parties involved, and this represented a serious breach of broadcasting standards and a serious lack of understanding of the parties’ right to privacy.

Upheld: Privacy

Orders: Section 13(1)(d) $3,000 compensation to JN and $3,000 compensation to Z for the breaches of privacy; Section 16(4) $2,500 costs to the Crown 

Introduction

[1]  A segment on Thane & Dunc included an interview with a man, X, who had a relationship with a couple (the complainant and Z). During the interview, X described the nature of the relationship. He did not name the couple, referring to them as ‘A’ and ‘B’. A second interview with X was broadcast the following day, during which the hosts told X they had spoken with the couple, who alleged the relationship was abusive. The hosts interrogated X about his behaviour, then demanded X apologise and agree to make no further contact with the couple involved.

[2]  JN complained directly to the Authority that the second interview breached the privacy of JN and Z.

[3]  In its response to the complaint, MediaWorks accepted that the broadcast breached the privacy of the complainant and Z, however it considered that the couple would only have been identifiable to a small number of people.

[4] The issue raised in JN’s complaint is whether the broadcast breached the privacy standard, as set out in the Radio Code of Broadcasting Practice.

[5]  The first interview was broadcast on 31 May 2017 and the second interview was broadcast on 1 June 2017 on The Rock. The members of the Authority have listened to recordings of both broadcasts and have read the correspondence listed in the Appendix.

Overview of findings and freedom of expression

[6]  The right to freedom of expression is the starting point in our consideration of complaints. The right to freedom of expression is a fundamental freedom, but it is not an absolute freedom. This right may be limited where the exercise of it may cause harm. In this case, we must consider whether the harm that is alleged outweighs the broadcaster’s right to freedom of expression, such that it is reasonable and justified for us to uphold the complaint, and limit the right.¹

[7]  The broadcaster in its response to the Authority accepted there was a breach of privacy in this case, and we agree.

[8]  We consider this broadcast represented a very serious breach of broadcasting standards, with little, if any, sensitivity or respect shown for the dignity, safety, reputation and mental wellbeing of the parties involved. While JN’s complaint did not raise the fairness standard, the hosts’ conduct represented a severe lack of understanding of the parties’, including X’s, right to fair treatment and to privacy.

[9]  The hosts’ apparent view that this type of segment was an appropriate use of the airwaves also demonstrates a serious lack of understanding of the broadcasting standards regime, and of broadcasters’ responsibilities in general. In our view, the seriousness of the breach and the misconduct is aggravated by the fact that one of the hosts has previously been involved in a serious breach of broadcasting standards.² This further breach indicates that the broadcaster has failed to take cognisance of, and learn from, the guidance previously given by the Authority, and the importance of meeting broadcasting standards. This will be relevant to our assessment of orders.

[10]  We also strongly disagree with the broadcaster’s assertion that the second interview that took place was in the public interest. We discuss our reasoning for this decision below at [30].

[11]  For these reasons, further expanded upon below, we find a serious breach of the privacy standard. The harm to the complainant, and others, in terms of their right to privacy and fair treatment, in this case outweighed the broadcaster’s right to freedom of expression.

Did the broadcast breach the complainant and Z’s privacy?

[12]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. It is a defence to a privacy complaint where matters of legitimate public interest are disclosed.

The parties’ submissions

[13]  JN submitted:

Summary of events

• X was an ex-partner of the complainant and Z and the relationship had been abusive. X continued to try and contact the couple (despite being blocked on social media and by phone) and this caused JN and Z great anxiety, as X made them feel unsafe.
• JN was contacted about the upcoming interview by a friend, Y, who knew about the relationship and the nature of the relationship.
• Prior to the initial interview airing, JN spoke to The Rock (after Y was able to reach them on Facebook), explaining the situation, and was assured by the broadcaster that their privacy would be respected and the matter would not be taken any further. JN made clear that the phone call and the information discussed during the call should not be aired. JN maintained the first interview aired after this conversation.
• Y was later contacted by the station and asked if he wanted to set the story straight in a second interview. After discussing this with the complainant and Z, Y told the station on 1 June 2017 that a second interview would antagonise X and make the family feel unsafe, and may also impact on the mental wellbeing of X.
• A second interview with X was nonetheless broadcast. After hearing promos for the interview, the complainant attempted to contact The Rock via phone and Facebook, and continued to send the hosts Facebook messages during the interview asking them to stop, stating the interview put the family in danger.

Breach of privacy

• While JN and Z were not named, aspects of their life and relationship were discussed that they did not wish to be made public.
• The complainant and Z were approached by people who had learned about the abusive nature of the relationship from the broadcast. Because of the nature of the relationship, people who knew the family casually were able to identify them, and became privy to the abusive nature of the relationship.
• The actions of the hosts and The Rock disregarded the safety of the individuals and their families (JN, Z and Y) and left the complainant and Z feeling victimised. They did not wish to confront X about the relationship and the broadcast therefore removed their ability to handle the situation in the way they chose.
• The Rock passed the audio from the revisited conversation to Newshub, who published an article about the interviews online and on their Facebook page. After JN contacted Newshub, this was immediately removed.

 [14]  MediaWorks submitted that:

• It accepted that the broadcast breached the privacy of JN and Z, however it considered they would only have been identifiable to a small number of people.
• The MediaWorks Standards Committee met with the producer of Thane & Dunc and The Rock’s Content Director to discuss the breach.

Off-air discussions - first interview and prior to second interview

• After the first interview, the announcers contacted Y, who explained the abusive nature of the relationship and that X had behavioural issues. The announcers then phoned the complainant, who reiterated the concerns held, and asked that the second interview not be aired. The first interview had already aired at this point.
• It was evident from this conversation that ‘the announcers thought they could still use the information [the complainant] had given them’. They understood Y would be discussing the issue on behalf of the complainant and Z in an interview the next day. Thirty minutes prior to the scheduled (second) interview, Y informed the announcers he would not be participating. In place of this interview, the announcers spoke with X for a second time.

Attempts to contact The Rock prior to, and during, the second interview

• In a live broadcast environment it was not unusual for phone calls to go unanswered.
• The Facebook messages sent by the complainant were not read until after the broadcast of the second interview. The Producer and Content Director for the show explained that message windows may remain open, and therefore indicate messages have been ‘read’, without announcers having in fact viewed them. The announcers would not have proceeded with the second interview if these messages had been read prior to broadcast.

Public interest

• The announcers believed there was public interest in the second broadcast – to hold X accountable for his behaviour and to ensure X recognised his attempts to contact the couple were inappropriate.
• The announcers received listener feedback praising them for raising awareness around the issue of abuse. Y also messaged the announcers thanking them for not ‘inflaming’ the situation further.

[15]  In response, JN:

• disagreed there was public interest in the broadcast, and submitted that Thane and Dunc took advantage of their positions, gravely misrepresented their intentions and ‘used this horrible situation to their own benefit’, and
• submitted that the hosts were aware the situation made the complainant and Z feel unsafe, exposed and victimised. They showed no concern for the safety of the complainant or the family, and little concern for X’s mental wellbeing.

Our analysis

[16]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual(s) whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about the individual(s); and the disclosure must be considered highly offensive to an objective reasonable person.³

Were JN and Z identifiable?

[17]  When we consider a privacy complaint, we first determine whether the person (or persons) whose privacy has allegedly been interfered with was identifiable in the broadcast. The test for whether a person is identifiable is whether he or she would be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁴

[18]  In our view, the unusual circumstances of this relationship, in combination with X’s name, which were both known to others, as well as specific references and details about the complainant’s family, would have allowed those who knew or were aware of the couple to identify them based on X’s descriptions.

[19]  This case is analogous to the Authority’s decision in BL and MediaWorks,⁵  in that while only a small number of people may have been able to recognise the complainant and Z from this information, the complainant has submitted that not all of those people were aware of the full nature of the relationship, which the couple dealt with very privately.

[20]  The complainant has also submitted that they were later approached by people who were only made aware of the abuse after the broadcast.

[21]  We therefore find that both JN and Z were identifiable in the broadcast.

Private information and reasonable expectation of privacy

[22] The next question is whether any private information was disclosed about JN and Z, or information about which they had a reasonable expectation of privacy.⁶ The private information disclosed during the second interview included highly sensitive details about the nature of the complainant’s and Z’s relationship with X. The first interview also contained intimate details of their relationship and living arrangements.

[23] We consider details about the nature of the relationship, which had been provided to the station by Y and JN in confidence in order to stress the serious safety concerns the complainant had about the broadcast, was sensitive, personal information over which the complainant and Z clearly had a reasonable expectation of privacy. As was the case in LN and MediaWorks,⁷  the couple did not expect these particular details of their relationship to be broadcast on national radio. This was highly personal information about sensitive details of their relationship.

Highly offensive disclosure

[24] Where private information has been disclosed, over which the featured individual(s) had a reasonable expectation of privacy, the third criteria for us to consider is whether this disclosure would be considered highly offensive to an objective reasonable person in the position of the person or persons affected.⁸

[25] The means by which private material is gathered will affect the offensiveness of the disclosure. For example, it may be highly offensive to broadcast material gathered by surreptitious or deceptive means.⁹  Additionally, where a person has not consented to the broadcast, disclosure of private facts is likely to be highly offensive.¹⁰

[26] We agree with the complainant’s submissions that it appears that the programme’s hosts displayed a flagrant or reckless disregard for the complainant’s serious concerns about the couple’s privacy and safety, and the safety of the family. Given the information provided by the complainant about X, this broadcast exposed the complainant and Z, as well as X himself, to serious risks. While there is some discrepancy between the parties’ submissions as to the timeline of the first and second interviews and the conversations between the announcers, Y and the complainant, it is clear that there was contact between the complainant and the station as to the nature of the relationship, and the complainant’s concerns, prior to the second interview being aired.

[27]  It was not the role of the station or the programme’s hosts to confront X about his behaviour, or to tell him to cease contact with the couple. We agree that the general issue of condemning domestic abuse is a matter of public importance, and should be challenged and discussed. However, by broadcasting these matters to a nationwide audience, the hosts removed the complainant’s and Z’s ability to deal with the situation as they wished. The broadcast of this information, despite the complainant’s wishes and in breach of confidence, was highly offensive and a serious breach of broadcasting standards. Further, we disagree that there was any public interest in the disclosure of personal and sensitive relationship details of private individuals, which carried the added and very real risk of endangering their safety.

[28]  The parties are in dispute as to whether the hosts saw the Facebook messages during the second interview. However, they were clearly read, whether during the segment or after its broadcast, and the hosts took no action to remedy the harm caused. The complainant has submitted that the situation was aggravated when the story and audio was provided to Newshub for rebroadcast, though this submission is disputed by the broadcaster.

[29]  We therefore find a clear breach of privacy in this case.

Defences: public interest and informed consent

[30]  Having found a breach of privacy, we now consider whether any defences are available to the broadcaster.

[31]  Guidelines to the privacy standard identify two possible defences to a breach of privacy. First, it is a defence to a privacy complaint if the matters disclosed are of legitimate public interest.¹¹  Second, it will not be a breach of privacy where the person concerned has given informed consent to the disclosure.¹²

[32]  As we have noted above, we strongly disagree that the broadcast of the second interview was in the public interest.

[33]  The first interview was clearly undertaken for the purpose of titillation and clearly exploitative of the individuals involved. The tone of this interview, particularly the tone of the questions from the hosts, was voyeuristic and offensive. The tone of this first interview is, in our view, inconsistent with the hosts’ purported intentions for the second interview, which were to confront X about his behaviour.

[34]  The second interview was undertaken despite the express wishes of the complainant. The broadcaster was aware of the complainant’s concerns for the safety and wellbeing of all parties, and continued with the broadcast despite knowledge of those concerns. As noted above, while we agree that issues relating to domestic abuse generally are matters of public importance, it was not appropriate to confront X live on air. That is not the role of a broadcaster. Rather than making the situation better, the broadcaster carelessly put the individuals concerned at risk and may have aggravated the situation.

[35]  It is also clear from the circumstances that the complainant and Z did not give informed consent to the broadcasts. Therefore neither defence is available to the broadcaster in this case.

Conclusion on privacy

[36]  The importance of the right to freedom of expression means that we may only intervene and uphold a complaint where we are satisfied that limiting that right is reasonable and justified in a free and democratic society. In this case, we consider it is clear that the complainant’s and Z’s privacy interests were not given due consideration by the broadcaster. The result is that JN’s and Z’s privacy has been breached by this broadcast, and harm has been caused to JN, Z and the family. This outweighs the broadcaster’s right to freedom of expression. We therefore uphold the privacy complaint.

Name suppression

[37]  Due to the nature and circumstances of this complaint, we have suppressed the parties’ names and other identifying details in our decision.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of items on Thane & Dunc on 31 May 2017 and 1 June 2017 breached Standard 10 of the Radio Code of Broadcasting Practice.

[38]  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 the provisional decision and orders

[39]  The complainant, JN, submitted that:

• The maximum compensation available ($5,000) ought to be paid to both JN and Z.
• The maximum fine ought to be paid to the Crown ($5,000) to acknowledge ‘the misuse of the broadcaster’s position of power’.
• This was an impacting event, that had ‘significant repercussions for [JN and Z] socially, emotionally and mentally’. The maximum compensation, payable to both JN and Z, was appropriate, given the breach of privacy ‘and the blatant disregard to our safety and wellbeing’.
• A written apology should be made to X on behalf of the hosts and The Rock for ‘the gross misuse of information that served to humiliate him and expose his past on air’. JN also requested an apology to JN and Z.
• An on-air acknowledgement or corrective statement would not be appropriate, as ‘it would be preferable to us that the issue is forgotten in the public eye’.
• The host’s previous conduct in other cases should be taken into account, stating: ‘He [Mr Kirby] cannot be allowed to continue to abuse the power of his position as a broadcaster, in order to victimise and humiliate listeners for entertainment.’

[40]  MediaWorks submitted:

• MediaWorks’ decision to uphold the complaint should be given due weight by the Authority.
• The MediaWorks Standards Committee had taken efforts to address the breach, including meeting with The Rock management and staff responsible for the broadcast to ensure their responsibilities under the privacy standard were understood.
• MediaWorks wished to correct a misunderstanding at paragraph [13] of the decision, regarding JN’s submission that The Rock passed the audio of the second interview to Newshub (which subsequently published an article about the interviews online and on its Facebook page). MediaWorks submitted that Newshub had confirmed that The Rock did not bring this interview to its attention.

[41]  In response, JN submitted:

• JN was told verbally by Newshub’s Online Content Manager that they had received the story from The Rock.
• JN was upset, angry and frustrated by MediaWorks’ submission on this point, as she considered ‘it shows they still don’t fully accept responsibility for their actions and are more concerned with trying to minimise the consequences of their actions’.

Authority’s response to submissions on the provisional decision

[42]  In response to the parties’ submissions regarding passing of the interview audio to Newshub, we have made minor amendments to paragraph [28] of our final decision, to reflect that this factual allegation is disputed by the broadcaster. However, we do not consider any further amendments to the decision are necessary. Paragraph [13] sets out the complainant’s own submissions and is not a finding of fact by the Authority.

[43]  We therefore move to consider the parties’ submissions on orders.

Authority’s decision on orders

[44]  Where a complaint is upheld, the Authority may make orders, including, in the case of a privacy breach, directing the broadcaster to pay compensation to the person whose privacy has been breached, to broadcast and/or publish a statement, and/or to pay costs to the Crown.

Privacy compensation

[45]  Section 13(1)(d) of the Broadcasting Act 1989 (Act) provides that:

…if the Authority finds that the broadcaster has failed to maintain, in relation to any individual, standards that are consistent with the privacy of that individual, [the Authority may make] an order directing the broadcaster to pay to that individual, as compensation, a sum not exceeding $5,000.
[emphasis added]

[46]  Having upheld JN’s privacy complaint and found breaches of both JN’s and Z’s privacy, and taking into account the submissions from JN of the impact of that breach, we consider it appropriate to make an award of compensation to both JN and Z.

[47]  We are satisfied that section 13(1)(d) permits, and that is appropriate for, the Authority to order separate awards of privacy compensation payable to the complainant and Z in this case, as we have found that the privacy of both individuals has been breached. The Act, and the Authority’s decision in Ihaia & IM and MediaWorks Radio Ltd,¹³ are clear that compensation of up to $5,000 may be awarded for each breach of an individual’s privacy.¹⁴

[48]  In determining the amount to be awarded to JN and Z in this case, we have had regard to the following factors:

• The primary purpose of privacy compensation is to compensate the impacted individual(s) for hurt and humiliation, loss of dignity and injury to feelings, loss of any benefit resulting from the breach, and pecuniary loss as a result of expenses incurred as a result of the privacy interference. This award is not intended to be punitive in nature, as an award of costs to the Crown will stand as a punitive award in response to the conduct of the broadcaster.
• Information disclosed during this broadcast (for example, details about the nature of the complainant’s and Z’s relationship with X, that this relationship had been abusive, and private information about the family), was highly sensitive, personal information provided to the station in confidence to stress the complainant’s serious safety concerns. The disclosure of this information caused significant emotional harm to the individuals.
• The disclosure of this information represented a flagrant disregard for the safety of the complainant, Z and X, and had the potential to expose the parties to serious risks. The disclosure aggravated the complainant’s and Z’s feelings of being victimised, humiliated and unsafe as a result of the broadcasts.
• The first interview was clearly exploitative and the rebroadcast of this information during the second interview resulted in the disclosure of highly sensitive details about the abusive nature of the relationship and X’s wellbeing, which was not in the public interest. This aggravated the hurt, humiliation, injury and loss of dignity to the complainant and Z.
• While the broadcaster upheld the complaint, it did not offer any compensation or adequate remedy. This may have aggravated the harm experienced by the complainant and Z.

[49]  Having regard to the above factors, as well as the Authority’s previous compensation awards, we find that awards of privacy compensation of $3,000 each to JN and her partner for the breaches of privacy are appropriate.

Costs to the Crown

[50]  The Authority may also make an award of costs to the Crown having regard to various factors, including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[51]  In determining whether costs to the Crown are warranted, we have taken into account a number of factors including:

• An award of costs to the Crown will reflect the seriousness of the conduct by the broadcaster. In this case we consider the breach to be serious.
• One of the hosts in this case has previously been found to be in breach of broadcasting standards by the Authority (in the case of Ihaia and IM, referred to above). That case resulted in two complaints to the Authority and the Authority finding a serious breach of broadcasting standards. In that case, the host and another host ‘named and shamed’ two women and described them in damaging and derogatory terms. The voyeuristic and exploitative tone of the first interview in this case suggests that the host has not taken on board the Authority’s earlier decision. It would appear that Mr Kirby continues to either not understand, or disregards, important standards, which exist to protect individual rights in our community. This factor aggravates the award to be made in this case.
• We have found that the broadcasts in this case represented a serious breach of broadcasting standards, a lack of understanding of the broadcasting standards regime and of the parties’ right to privacy and fair treatment.

[52]  Relevant mitigating factors which we have also considered are:

• The broadcaster in this case accepted that the broadcast breached the complainant’s and Z’s privacy.
• The Standards Committee met with the producer of Thane & Dunc and The Rock’s Content Director to discuss the breach.

[53]  Taking into account the considerations above, our overall view that this represented a serious breach of standards, and previous costs awards, we find that an order of costs to the Crown of $2,500 is warranted in this case.

Broadcast statement/apology

[54]  Taking into account JN’s submissions and the circumstances of the case, we do not consider a broadcast statement or public apology is appropriate. The purpose of any broadcast statement in this case would be to mark the breach and the hosts’ conduct, however this may undermine the protection of the complainant’s and Z’s privacy interests by bringing further attention to the matter. We consider that the release of the decision and costs to the Crown is adequate censure in the circumstances.

[55]  MediaWorks has not offered a formal apology to the complainant, to Z or to X. However, in our view a private apology to the parties would be an appropriate remedy and we encourage the broadcaster to consider taking this step.

Online items

[56]  The complainant also sent a submission advising that the broadcasts subject to complaint (the first interview and the second interview) remain available online as podcasts from the Thane & Dunc show. Given our finding that both the 31 May and 1 June broadcasts breached broadcasting standards, we expect the offending segments to be removed and no longer available to listen to online.

Orders 

1. Under section 13(1)(d) of the Act, the Authority orders MediaWorks Radio Ltd to pay to JN $3,000 compensation for the breach of privacy, within one month of the date of this decision. 

2. Under section 13(1)(d) of the Act, the Authority orders MediaWorks Radio Ltd to pay to Z $3,000 compensation for the breach of privacy, within one month of the date of this decision.

3. Under section 16(4) of the Act, the Authority orders MediaWorks Radio Ltd to pay to the Crown costs in the amount of $2,500 within one month of the date of this decision

    The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 October 2017

Appendix

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

1      JN’s direct privacy complaint to the Authority – 19 June 2017
2      MediaWorks’ response to the complaint – 13 July 2017
3      JN’s further comments – 23 July 2017
4      MediaWorks’ confirmation of no further comment – 1 August 2017
5      JN’s submissions on the provisional decision and orders – 18 September 2017
6      MediaWorks’ submissions on the provisional decision and orders – 19 September 2017
7     JN’s further comments – 19 September 2017
8     JN’s final submissions – 20 October 2017

¹  See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6

²   Ihaia & IM and MediaWorks Radio Ltd, Decision No. 2015-074

3   Guidelines 10a and 10b

⁴   Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁵   Decision No. 2017-025

⁶   Guideline 10c

⁷   Decision No. 2016-016

⁸   Guidelines 10b and 10e to Standard 10

⁹   6.1, Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 60

¹⁰  6.2, Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 60

¹¹  Guideline 10f to Standard 10

¹²  Guideline 10g to Standard 10

^₁₃Decision No. 2015-074

¹⁴ In that case, two individuals were awarded $4,000 and $2,000 respectively for breaches of their privacy.