BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – host abused his position by making comments that were insulting and abusive to AB – AB made repeated attempts to stop the content being broadcast – AB treated unfairly – upheld

Standard 3 (privacy) – AB identifiable for the purposes of the privacy standard because limited group of people who could potentially identify her may not have been aware of any family matter – however host’s comments were his opinion and did not amount to private facts – not upheld

Standard 1 (good taste and decency) – hosts’ comments would not have offended or distressed most listeners in context – not upheld

Standard 5 (accuracy), Standard 7 (discrimination and denigration) and Standard 8 (responsible programming) – standards not applicable – not upheld

No Order

This headnote does not form part of the decision.

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Background

[1]  AB listened to a podcast of the heavy metal radio programme, House of Noizz, from her base in Australia. During the podcast, one of the hosts, X, who was related in some way to AB, stated:

I’ve been recording and I’ve got a song I want to play… for me it’s more personal, it’s [about] an ex-member of the family… This is called, “Your Mother is a Psycho Bitch”, and it is for my nephew [name].

[2]  The heavy metal track included the lyrics “your mother is a psycho bitch”. Following the track, X’s co-host commented that the song was “from the project with no name… I can think of a name, ‘Vicious Whore’ is a good name.” X laughed and responded, “Vicious Whore. That’s not bad, actually.”

[3]  In anticipation of the upcoming broadcast on New Zealand radio, AB contacted Planet FM on the morning of 18 January 2013, asking that the material, including the introductory comments, be removed from the programme scheduled to air that evening. She sent a follow-up email to the station reiterating her request.

[4]  The Broadcast Manager, interpreting the complaint as relating to the music track only, had the music track replaced with another song by another artist, but the commentary remained. The House of Noizz programme was broadcast that night at 10.05pm on Planet FM, with the replacement track.

[5]  That same evening, the Broadcast Manager contacted the host concerned and reminded him of the inappropriateness of using the airwaves for personal agendas. The host removed the podcast that had been available on the House of Noizz website in the week leading up to the broadcast. The content that was broadcast was available online on-demand overnight from 19 to 20 January 2013, before it was removed.

Complaints

[6]  AB and her father, CD, made formal complaints to Access Community Radio Inc, the broadcaster, alleging that the broadcast was unfair, discriminatory, and in breach of AB’s privacy. In addition, they argued that the broadcast was inaccurate and misleading, indecent and in bad taste.

[7]  AB made arguments regarding online content, including comments posted on the programme’s Facebook page. This internet content is outside the Authority’s jurisdiction, and we have therefore limited our determination to the material broadcast on Planet FM.¹

[8]  On another jurisdictional point, relating to AB’s ability to complain from her base in Australia, we are satisfied that, as her complaint correctly identified the time and date of the New Zealand radio broadcast, she lodged a valid formal complaint, and we have jurisdiction to consider it.²

[9]  We consider that standards relating to good taste and decency, fairness and privacy are most relevant to the complainants’ concerns, and we have limited our determination accordingly. The complainants also raised other standards which we have addressed at paragraph [38] below.

[10]  The focus of this decision therefore is whether the broadcast breached standards relating to good taste and decency (Standard 1), privacy (Standard 3) and fairness (Standard 6), as set out in the Radio Code of Broadcasting Practice.

[11]  The members of the Authority have listened to a recording of the broadcast complained about, as well as the original podcast, and have read the correspondence listed in the Appendix.

Was anyone referred to or taking part in the broadcast treated unfairly?

[12]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[13]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.³

[14]  As the music track was not broadcast on the radio, our determination is limited to whether the commentary which preceded and followed the track was unfair. We are also able to consider the events leading up to the broadcast in our assessment of whether AB or anyone else referred to was treated unfairly by the broadcaster.

[15]  AB described X’s comments as a “personal attack against me”, as the mother of the host’s nephew. In addition, she argued that the broadcast was potentially humiliating for her son because his peers formed part of the target audience and were likely to ask questions about “previously private matters”. She considered that the host’s alleged “ownership” of the substituted track was unfair to the artist of that track because he was not acknowledged in the broadcast.

[16]  The broadcaster argued that neither the complainant nor anyone else taking part or referred to in the broadcast was identifiable. It said that the discussion between the hosts “related to song writing and the function of the ‘diss track’ in various music styles”, and contended that most writers drew on personal experiences in the development of themes and ideas. It sought to attribute value to the comments, stating, “Our observations are that, like heavy metal music, family breakdowns arouse passions. However without expression of sadness, rage and narcissisms, much creative endeavour would not exist”. The broadcaster said the host had apologised to his fellow staff members and co-host “for the trouble that had arisen from the broadcast”.

[17]  The host’s comments were directed at AB, not at her son, the host’s nephew. In our view the comments did not reflect badly on him and were not unfair to him. The host did not intentionally take credit for the song; the discrepancy was the result of editing out the music track at the complainant’s request. The broadcaster could not be said to have treated the artist of the substituted track unfairly in this respect.

[18]  The key issue, in our view, is whether AB was treated fairly. The fairness standard applies to anyone “taking part or referred to”. While the complainant was not named in the broadcast, she was mentioned indirectly. The host’s comments attached to AB through X’s reference to “an ex-member of the family” and through the song title and dedication suggesting she was the mother of his nephew, whose first name was mentioned. AB maintained that, given the context of the comments, and the dedication to her son, it had been possible for people to identify her and make a connection between the song’s title and the host’s nephew, highlighting the existence of a personal family grievance. We agree that there was enough information in the comments for it to be possible for people who knew the family to link the song to AB, and we are therefore satisfied that she was sufficiently “referred to” for the purposes of the fairness standard.

[19]  We have reached the view that, overall, AB was treated unfairly, because:

• the hosts’ comments were personally abusive towards AB
• the host X inappropriately used his position to make public a personal dispute
• the broadcaster was made aware of AB’s objections prior to the broadcast and so had the opportunity to prevent the segment going to air.

[20]  The hosts’ comments suggesting that AB was a “psycho bitch” and a “vicious whore” were personally abusive and insulting, and we think it was unfair to broadcast them. Regardless of whether a wide group of people would recognise the comments as relating to AB, she knew that the comments were about her, and apparently so did others who she maintains asked her about the comments, and who she says also alerted her to the upcoming broadcast in the first place.

[21]  The events leading up to the broadcast also support a finding of unfairness. As outlined at paragraphs [1] to [5] above, AB contacted Planet FM before the radio broadcast, objecting to the content, including the commentary. While the broadcaster attempted to respond to her concerns, there was apparently confusion (surprisingly, in our view) about the scope of her objections, meaning it did not react adequately. The fact the broadcaster attempted to respond to AB’s concerns by removing the music track, and also the fact it was prompted to speak with the host about his intention to discuss personal matters on air, suggests it was aware there might be an issue with the proposed broadcast. Where a person makes repeated attempts to stop abusive comments about them from airing on the radio, and has exhausted their ability to protect themselves in this respect, we think a finding of unfairness will usually follow.

[22]  In determining an alleged breach of broadcasting standards, we must weigh the potential harm caused by the broadcast against the values underpinning the right to freedom of expression.⁴ Here, the host’s comments and the dedication were an expression of his opinion about an “ex-member of the family”, the complainant AB. We consider that there was minimal value in X’s comments, and that the comments were merely an opportunity for him to vent and advance his own personal agenda. We are not saying it is unacceptable in all scenarios for hosts to dedicate songs to people, or to offer their views and experiences. In this instance the line was crossed because the host used his position to vent about a personal family issue, and in our view, displayed an inappropriate abuse of power, under the guise of artistic expression. The right to broadcast material carries with it privileges and responsibilities, including reasonable consideration of anyone who might be affected by a broadcast. As we have said, the host’s comments were personally abusive and malicious and we think that the potential harm to AB in this respect outweighed any value in allowing the host to express himself without moderation.

[23]  We therefore find that upholding the fairness complaint would be a justifiable limit on the right to freedom of expression, and we uphold the complaints under Standard 6.

Did the comments breach AB’s privacy?           

[24]  Standard 3 states that broadcasters should maintain standards consistent with the privacy of the individual.

[25]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[26]  As noted above (see paragraph [18]), AB argued that she was identifiable due to the song title and the host’s introductory comments. She said that the comments highlighted the existence of a personal grievance against her, and created reason for people to enquire and pry into “private matters”. The broadcaster reiterated its view that the complainant was not identifiable.

[27]  We have found that the complainant was “referred to” indirectly in the broadcast, which was enough for a small group of people to link her to the comments and to make enquiries in this regard, and that this was sufficient for the purposes of the fairness standard.

[28]  The Authority has previously stated that in order for an individual’s privacy to be breached, that person must be “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”.⁵ This test recognises that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could “reasonably be expected” to know the personal information discussed in the broadcast – for example, details of an individual’s drug use or addiction, or other medical information, might be something that is hidden from even the closest family and friends.⁶

[29]  Here we have found that only people who were already aware of AB’s relationship with the host would have been able to link the broadcast to her, and presumably this group was limited to her family and close friends. The complainant has asserted, and we accept, that there could feasibly be people within this group who were unaware of any family dispute (and who she says enquired as to the nature of her personal grievance as a result of the broadcast). We therefore find that AB was identifiable for the purposes of the privacy standard.

[30]  However, we do not think that the broadcast disclosed any private facts as envisaged by privacy principle 1.⁷ It was not clear from the item that there was a “dispute” as such, or what was the nature of any such dispute. The only clear message was that the host did not like AB, and that he considered her “an ex-member of the family”. The comments were an expression of the host’s personal opinion of the complainant, and we do not think that his opinion in the context of this kind of venting could be considered a “private fact”. AB’s concerns in this respect more appropriately fall within the ambit of the fairness standard.

[31]  Accordingly, we decline to uphold this part of the complaints.

Did the comments breach standards of good taste and decency?

[32]  Standard 1 (good taste and decency) is primarily aimed at broadcasts that contain sexual material, nudity, coarse language or violence.⁸ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁹

[33]  CD argued that the hosts’ comments were both indecent and in bad taste.

[34]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast, which here includes:

• House of Noizz was broadcast at 10.05pm, outside of children’s listening times
• the programme was targeted at heavy metal fans
• it was preceded by a warning for content and language
• the comments were about an unnamed individual
• expectations of regular listeners.

[35]  While the hosts’ comments were insulting and abusive and therefore unfair to AB, we do not think that they would have offended or distressed most listeners when taken in context. Unlike the fairness standard, which is aimed at protecting individual participants, the good taste and decency standard is aimed at ensuring the audience is provided with sufficient information to make an informed choice whether or not to watch or listen to a programme, so they are not unduly offended. The Authority uses two key principles to determine radio complaints alleging a breach of good taste and decency – children’s interests, and target audience expectations.¹⁰

[36]  While all radio stations are expected to moderate content at times when children are likely to be listening, here the comments were broadcast after 10pm, which is not recognised as children’s normally accepted listening times. House of Noizz is targeted at those who enjoy heavy metal music, and are likely to hold more liberal expectations in terms of content, including mature themes and language.

[37]  Taking into account the contextual factors, we are satisfied that the hosts’ comments, including the language used, would not have offended or distressed most listeners. We therefore decline to uphold the good taste and decency complaint.

Did the comments breach the other standards raised by the complainants?

[38]  The complainants also raised standards relating to accuracy (Standard 5), responsible programming (Standard 8), and discrimination and denigration (Standard 7). In summary these standards were not breached because:

• The hosts’ comments were clearly opinion and not a “point of fact”, and most listeners would have recognised that the substituted track belonged to another artist, not the host, so would not have been misled (Standard 5).
• The discrimination and denigration standard applies to sections of the community, not individuals (Standard 7).
• AB’s argument that the on-demand content did not contain a warning falls outside our jurisdiction for the reasons expressed at paragraph [7] above (Standard 8).

[39]  Accordingly, we decline to uphold these aspects of the complaints.

Name suppression

[40]  Having upheld the complaints under the fairness standard, and bearing in mind that AB was not named in the broadcast, we consider that it is appropriate in all the circumstances to suppress the complainants’ names in this decision.

For the above reasons the Authority upholds the complaints that the broadcast by Access Community Radio Incorporated of House of Noizz on 18 January 2013 breached Standard 6 (fairness) of the Radio Code of Broadcasting Practice.

[41]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We are satisfied that in all the circumstances publication of this decision is sufficient to remind the broadcaster of its responsibilities, including taking steps to ensure that hosts adhere to broadcasting standards and that standards of professionalism are maintained.

Signed for and on behalf of the Authority

Peter Radich
Chair
11 June 2013

Appendix

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

AB’s formal complaint

1          AB’s formal complaint documents – 18, 20, 23 January 2013

2          Access Community Radio’s response to the complaint – 29 January 2013

3          AB’s referral to the Authority (including attachments) – 16 February 2013

4          Further material provided by AB – 19 February 2013

5          Access Community Radio’s response to the Authority (including attachments) – 28 February 2013

6          AB’s final comment – 13 March 2013

7          Access Community Radio’s final comment – 28 March 2013

CD’s formal complaint

1          CD’s formal complaint – undated

2          Access Community Radio’s response to the complaint – 20 February 2013

3          CD’s referral to the Authority – 16 March 2013

4          Access Community Radio’s response to the Authority – 22 March 2013

²The Authority has previously determined complaints from individuals based overseas, in relation to New Zealand broadcasts, for example, Agostino and TVWorks Ltd, Decision No. 2012-084; and Bush and Television New Zealand Ltd, Decision No. 2010-036.

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴Which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990.

⁵See Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12].

⁶See, for example, Anonymous and Television New Zealand Ltd, Decision No. 2004-106. In that case, a father was interviewed about Family Court proceedings and images of his baby were shown. A majority of the Authority found that the complainant (the baby’s mother) was identifiable, because although only people who knew the family would have been able to identify the baby, and consequently the mother, it did not necessarily follow that those people would have known the private facts disclosed, for example details of her drug use.

⁷Privacy principle 1 states 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.

⁸Turner and Television New Zealand Ltd, Decision No. 2008-112

⁹Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)

¹⁰Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)