BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
More FM Dunedin – complainant live on-air as winner of two movie tickets – said she was studying – host allegedly said “and to think three years ago you were sitting on your arse doing nothing going nowhere” – allegedly unfair and breach of privacy

Findings
Principle 3 (privacy) – no private facts disclosed – no intrusion – not upheld

Principle 5 (fairness) – comment intended as compliment – apology offered in view of misunderstanding appropriate – not upheld

This headnote does not form part of the decision.

Broadcast

[1] The complainant was a caller to More FM Dunedin as the winner of two movie tickets. She was put on air by the host and, in response to a question, she said that she was studying. The host replied to the effect “and to think three years ago you were sitting on your arse doing nothing going nowhere”. The broadcast took place between 2.30 and 3.00pm on 2 June 2005.

Complaint

[2] Desiree Anton, through her solicitor, complained to More FM in Dunedin that the comment was disparaging. She said that the remark denigrated her, and was unfair, unreasonable and breached her privacy.

Principles

[3] CanWest RadioWorks Ltd assessed the complaint under Principles 3 and 5 of the Radio Code of Broadcasting Practice. They provide:

Principle 3

In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.

Guideline

3a Broadcasters shall apply the privacy principles developed by the Broadcasting Standards Authority.

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Guideline

5a No telephone conversation will be recorded or broadcast for the purpose of news, current affairs or any other programme, unless the recipient has been advised that it is being recorded for possible broadcast, or is aware that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.

Broadcaster's Response to the Complainant

[4] In his response to the initial complaint, CanWest advised that, as a music station, More FM did not regularly record its shows. It added that the complainant was a regular caller and that the host had adopted a degree of familiarity. However, it acknowledged that the complainant had been upset on this occasion. Nonetheless, it considered that the complainant may have misconstrued the host’s comments which were meant to be encouraging. Pointing out that a broadcaster did not intend to upset loyal listeners, it apologised for any offence caused.

Further Correspondence

[5] In replying, the complainant stated that the broadcaster’s response did not comply with the requirements in regard to formal complaints set out in the Broadcasting Act 1989. In reply, CanWest said that it was unsure whether the complaint was justified as there was a difference in opinion as to what had been said. CanWest advised that it would apologise if the host had said that the complainant was “sitting on her arse” doing nothing. However, CanWest continued, the host, having had many conversations with the complainant over the years, maintained that the remark to the effect “it was good she had got off her bum” to study, was supposed to be a compliment.

[6] In view of the complainant’s concern nevertheless and despite the dispute about the actual comment, CanWest said that both it and the host were prepared to apologise.

Referral to the Authority

[7] Dissatisfied with the broadcaster’s response, the complainant referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[8] Ms Anton maintained that whichever remark the host had made about her, it breached broadcasting standards. The offered apology, she added, was insufficient.

[9] Ms Anton contended that the broadcast was unfair to her as it contained a clear innuendo that she was lazy.

Broadcaster’s Response to the Authority

[10] In its response to the Authority, CanWest said that as More FM was a music station, it was not required to record broadcasts and an audio of the conversation had not been preserved.

[11] In response to the complaint that the broadcast was unfair, CanWest pointed out that there was a dispute as to whether the word “arse” had been used. Nonetheless, the broadcaster did not believe it was necessary to resolve the dispute as the host’s comment had been a positive reference to the action taken by the complainant. There were, it stressed, no negative innuendos and the comment did not suggest that the complainant had earlier been lazy.

[12] Turning to privacy, CanWest accepted for the purposes of the complaint that the complainant had been identifiable. However, as no private facts had been disclosed, the privacy principle had not been contravened.

[13] CanWest said its essential finding was that the phrase was neither offensive nor unfair. CanWest attached a memo written by the host in response to the initial complaint. The host was adamant that he had used the word “bum”, not “arse”, and that the comment was intended to be a compliment as the complainant, a regular caller over five years, had been showing initiative.

Complainant’s Final Comment

[14] In her final comment, the complainant maintained that the comment was neither exhortation nor encouragement, but abuse. She argued that it contained a private fact – an assertion that previously she had been lazy. That was distressing and had caused “great personal embarrassment”. Expanding on the privacy aspect, the complainant said that she had earlier been a sickness beneficiary and had been “terribly hurt” by the revelation that she had been unable to work.

Broadcaster’s Reply

[15] CanWest accepted that the complainant was upset but argued that the reasonable listener would not find the comment offensive, objectionable or unfair.

Authority's Determination

[16] The members of the Authority have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing. It also reaches its decision despite the absence of a tape of a broadcast. It notes that the broadcast on this occasion is not one for which broadcasters are required under the Radio Code to retain either a tape or a script.

[17] The Authority’s privacy principles deal with broadcasts which disclose private facts or involve intentional intrusion on an individual’s interest in solitude or seclusion.

[18] The Authority considers that the broadcast complained about did not contravene the privacy principles. First, it did not disclose any private facts about the complainant. The complainant argues that the host’s comment about her “sitting on her arse” was a statement that she had been lazy. The Authority does not agree, as the words conveyed no specific information about the complainant. Second, rather than involving an intrusion by the broadcaster, the complaint arose after the complainant had called in to the radio station for a competition.

[19] As for the complaint that the host’s words were unfair, the Authority considers it irrelevant whether the host used the word “bum” or “arse”. It accepts that the exchange was simply light-hearted banter and was not intended as an insult. It concludes that the comment was not unfair and falls significantly short of breaching the standard.

[20] The Authority notes that the broadcaster, on receipt of the complaint, offered an apology to the complainant. The Authority considers that an apology was the appropriate response in the circumstances, and should have resolved the matter.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 September 2005

Appendix

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

1. Desiree Anton’s initial complaint (through her solicitor) to More FM, Dunedin – 3 June 2005
2. More FM’s response to Ms Anton – 15 June 2005
3. Ms Anton’s formal complaint – 16 June 2005
4. More FM’s response – 16 June 2005
5. Ms Anton’s referral to the Broadcasting Standards Authority – 20 June 2005
6. CanWest RadioWork’s response to the Authority – 21 July 2005
7. Ms Anton’s final comment -18 August 2005
8. CanWest reply to the Authority – 30 August 2005