BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
John Banks – talkback – "Royal Breakfast Show" – broadcast of complainant’s name and part of complaint – derogatory reference

Findings
(1) Privacy principle (iv) – identification – name and content of complaint private facts – facts not used to abuse, denigrate or ridicule – no uphold

(2) Privacy principle (v) – identification – complainant’s name private information in context – uphold

(3) Privacy principles (vi) and (vii) – no public interest in disclosure – making a complaint no consent to privacy breach – no defence

No Order

This headnote does not form part of the decision.

Summary

A Radio Pacific talkback host (John Banks) read on-air part of A’s written complaint about the host’s use of the word "Royal" to describe his show. The complainant was named in the broadcast during the morning of 2 February 2000 at approximately 7.20am.

A complained directly to the Authority under section 8(1)(c) of the Broadcasting Act 1989 alleging that the host had breached his privacy by reading part of his letter on-air, disclosing his name and referring to him in a derogatory manner.

In its response, The RadioWorks Ltd (which broadcasts Radio Pacific), the broadcaster, noted that A had written in his original letter that he intended to refer his complaint to the Broadcasting Standards Authority. It said that it believed that A’s name and the nature of his complaint would have entered the public domain when published in the Authority’s decision on the matter. Accordingly, it did not believe that it had breached A’s privacy.

For the reasons given below, the Authority upholds the complaint. No order is imposed.

Decision

The members of the Authority have read the correspondence which is listed in the Appendix and have listened to a tape of the broadcast. On this occasion, the Authority determines the complaint without a formal hearing.

A complained to Radio Pacific (which is broadcast by The RadioWorks) on 23 January 2000 about the use of the word "Royal" by a talkback host (John Banks) to describe his show. In his complaint he said that he was:

…sending a copy of [the] letter to the Broadcasting Standards Authority as a preliminary step to making a formal complaint.

A said in his complaint that he had received a letter from the Governor General’s Official Secretary which confirmed that there were restrictions on the use of the word "Royal".

At approximately 7.20am on 2 February 2000, the host read part of A’s letter on-air and identified him by name in a manner that A considered was derogatory.

Following the broadcast, A complained directly to the Authority that his privacy had been breached. He wrote:

The broadcaster, John Banks, this morning not only read out on air the first two paragraphs of [my] letter but gave my name, and referred to me in derogatory terms.

A also contended in his letter that the use of the word "Royal" by the host was, in his opinion, "a grave discourtesy to Her Majesty". He then added that the host had failed to exercise good taste and decency in the broadcast.

In the circumstances, A considered that it was "pointless" to pursue his original complaint. Communicating with the broadcaster would, he wrote, only cause him further distress.

In its response to the referral, The RadioWorks said that it had considered the privacy complaint made by A. In The RadioWorks’ view, A had been determined to test the "Royal" issue before the Authority. It then observed that it was the Authority’s general practice to publish decisions which disclosed complainant’s names. Accordingly, it surmised that A’s identity and the nature of his complaint would have entered the public domain in due course. For that reason, The RadioWorks concluded that A’s privacy had not been breached by the broadcast.

As a further point, The RadioWorks noted that it had considered issues in relation to privacy, but not other aspects of A’s complaint, as it had not been requested to deal with those additional matters by the Authority.

In A’s final comment, the following points were made. First, A asked where the evidence was that he intended to test the "Royal" issue before the Authority. Secondly, he challenged the broadcaster’s logic in determining that no breach of his privacy had occurred. Additional comments related to the use of the word "Royal". In conclusion A wrote:

At this stage and with due respect, I am wondering if the Broadcasting Act is but a paper tiger.

The Authority’s Findings

When determining complaints relating to the privacy of the individual, the Authority applies the Privacy Principles set out in its Advisory Opinion. This complaint is assessed in relation to principles (iv), (v), (vi) and (vii) of the Authority’s Privacy Principles, which read:

(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.

(v)  The protection of privacy also protects 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 provided in principle

(vi)  Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

(vii) An individual who consents to the invasion of his or her privacy cannot later succeed in a claim for breach of privacy. Children’s vulnerability must be a prime concern to broadcasters.

The Authority deals first with the issue of identification. This is an essential element to any claim of a breach of privacy. Here, the complainant was named on the programme and part of his letter of complaint was read aloud by the presenter. In the Authority’s view, he was clearly identified in this process. The Authority has some sympathy for the presenter, as the complaint seems to have been largely without merit. Notwithstanding that, the Broadcasting Act requires broadcasters to deal with complaints through an established procedure which includes proper and fair consideration by the broadcaster. Here, the Authority finds that the host referred to the complainant in a disparaging way in the knowledge that the complainant intended to pursue the matter as a formal complaint under the Broadcasting Act. This kind of public attention at the hands of the person complained about seems inappropriate. Partisan on-air comment by the person concerned has no part in the complaints process.

Principle (v) in general protects private individuals from being named in a broadcast without their consent. In this case, it is the Authority’s view that none of the exceptions contemplated by the Privacy Principles apply, and it is clear that consent was not obtained from the complainant. No public interest justification for the broadcast has been advanced either. The broadcaster argues that, because the Authority is required to publish a decision "which discloses the name of the complainant and the nature of the complaint", then, in the fullness of time, these details would enter the public domain. And so, it argues, there was no breach of the Privacy Principles in naming the complainant and broadcasting the content which it did. This submission overlooks the fact that in many privacy cases, the Authority grants suppression of name so as to avoid a repeat of the publication originally complained about. And the submission also ignores the principle set by the Authority in Decision No: 1996-067 that the details of a complaint, at least at the enquiry stage, are not matters of public information. The Authority observes that this is particularly so where the complaint is one of breach of privacy. For the above reasons it concludes that the broadcast breached privacy principle (v). In so finding, the Authority observes that the naming of the complainant and the reference to his complaint was no accident; it was deliberate.

However, the Authority is not prepared to find that the broadcast breached privacy principle (iv). Having listened to a tape of the broadcast, it concludes that the presenter’s comments fell short of the threshold for abuse or ridicule contemplated by the principle.

For the reasons given above, the Authority upholds the complaint that Radio Pacific’s broadcast on 2 February 2000 at about 7.20am breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a privacy complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It makes no order on this occasion as it considers that in all the circumstances, publication of this decision is sufficient penalty.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 May 2000

Appendix

The following correspondence was received and considered when the Authority determined this complaint:

1.    A’s Complaint to the Broadcasting Standards Authority – 2 February

2.    The RadioWorks’ Response to the Authority – 24 February 2000

3.    A’s Final Comment – 5 March 2000