BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
More FM – radio competition – disclosure of work-place – unfair – breach of privacy

Findings
Principle 3 Guideline 3a – Privacy Principle (v) – complainant’s work-place private information – uphold – apology to complainant sufficient

Principle 5 – broadcaster upheld complaint – action taken sufficient

No Order

This headnote does not form part of the decision.

Summary

[1] On 10 May 2002, B entered a radio competition on More FM in Dunedin. B’s work-place details were broadcast, after he had specifically stated that he did not want his work-place disclosed on-air.

[2] B complained to More FM, the broadcaster, that the broadcast breached his privacy and was a "blatant and deceitful" breach of the requirement that broadcasters deal justly and fairly with any person taking part in a broadcast. He also complained directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the same broadcast had breached his privacy.

[3] In response, More FM apologised to B by telephone and in writing and advised him that it considered that the matter had been resolved.

[4] Dissatisfied with the action taken by the broadcaster on the standards complaint, B referred that complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the standards complaint that the action taken was insufficient. The Authority upholds the privacy complaint that B’s privacy was breached but it makes no order as it considers that the action taken by the broadcaster was sufficient.

Decision

[5] The members of the Authority have read the correspondence listed in the Appendix. The broadcaster did not provide a tape of the broadcast. However, it did provide a tape of its telephoned apology to the complainant, which the Authority has listened to. The Authority determines the complaints without a formal hearing.

The Programme

[6] B participated in More FM’s "donut competition" on 10 May 2002 and was recorded for on-air playback. The competition was run by More FM in Dunedin. When asked where he worked he said that he would "prefer not to answer on-air." When B was told that he was no longer on-air, he then told the announcers where he worked. A few minutes later the tape was played on-air, which included the discussion where he had disclosed his work-place.

The Complaints

[7] B rang the Station Manager, shortly after the item had been broadcast, who undertook to speak to the staff concerned and advise him of the outcome. B heard nothing further from the Station Manger.

[8] B complained in writing to More FM, the broadcaster, that the broadcast breached the requirements in Principle 3 of the Radio Code of Broadcasting Practice relating to privacy, and Principle 5 that broadcasters deal justly and fairly with any person taking part in a broadcast. He also complained directly to the Broadcasting Standards Authority that the broadcast breached his privacy.

[9] B said there had been a "blatant and deceitful" breach of Principle 5 because he had specifically stated that he did not want his employer’s details broadcast, and only gave his work-place, when he was told he was off-air.

[10] In regard to the privacy matter, in his letter to the Authority, B said the broadcaster had disclosed his place of employment, despite his stated preference not to do so, contrary to Principle (v) of the Authority’s Privacy Principles.

[11] Privacy Principle (v), of the principles enumerated by the Authority in an Advisory Opinion dated 20 September 1999, states:

(v) The protection of privacy includes the protection 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 in principle (vi).

The Standards

[12] B complained to the broadcaster that the item breached Principles 3 and 5 of the Radio Code of Broadcasting Practice. The Principles and the relevant guidelines read:

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.

The Broadcaster’s Response to the Complaints

[13] In its reply to B, the broadcaster noted that the two announcers responsible had spoken to him and had apologised for their conduct. It also apologised to B for failing to get back to him. It concluded:

I hope this has been resolved to your satisfaction and you continue to be an avid listener on 98 MoreFM.

[14] In its response to the Authority on the privacy complaint, the broadcaster said it had apologised to B’s satisfaction, having explained to him that it was "all done in jest" and that the announcers had not realised that he was "serious about his request." The broadcaster enclosed the letter it had sent to B confirming the announcers’ apology to him. The broadcaster said it did not have a tape of the item complained about.

The Referral of the Standards Complaint to the Authority

[15] Dissatisfied with the action taken by More FM, B referred the standards complaint to the Authority. B confirmed the broadcaster’s apology to him, but questioned its sincerity. He claimed that the broadcaster had ignored both his verbal and written complaint, and only responded to him once the Authority was involved.

[16] In reference to the alleged breach of Principle 5, B restated his comments made to More FM:

Given my specific statement that I did not want details of my employer broadcast, and the specific advice by your employee that we were off-air before I advised the details, there has been a most blatant and deceitful breach of this Principle.

[17] B expressed his concern that there was no tape of the item and wrote:

I understand that this is not uncommon, and must be a severe impediment to the Authority’s work.

The Broadcaster’s Response to the Authority in regard to the Standards Complaint

[18] The broadcaster reiterated:

…no offence was intended against [B] and that the action was done in jest. In the telephone conversation More FM had with [B] he seemed to be satisfied with the apology given.

[19] More FM enclosed a tape of the conversation between the radio announcers and B.

The Complainant’s Final Comment

[20] B said he found it "interesting" that More FM had retained a tape of its announcers’ conversation with him, but not of the original broadcast, despite being required to do so.

The Authority’s Determination

[21] The complainant maintained that the broadcast of his work-place details by More FM breached his privacy and was unfair to him.

Fairness

[22] Turning first to the fairness standard, the Authority notes it is ambiguous from the broadcaster’s responses to both the complainant and the Authority whether it had upheld the complaint. The broadcaster explained that "no offence was intended" and that the announcers had apologised to the complainant for their conduct. The action taken by the broadcaster in response to the complaint leads the Authority to conclude that the broadcaster has upheld the complaint.

[23] The Authority next considers the broadcaster’s response. The Authority considers the action taken by the broadcaster in response to the complaints was adequate. The complainant received a written apology from the station manager and a verbal apology from the announcers. The Authority is of the view that the broadcaster was entitled to believe that the complainant accepted its apology. The Authority considers that the recorded apology did indicate that B accepted the apology and was satisfied. The announcers specifically asked him if there was anything further they could do, and B said "No".

Privacy

[24] Next the Authority turns to the complaint that B’s privacy was breached. When it deals with privacy complaints, the Authority applies its Privacy Principles set out in its Advisory Opinion. The complainant cited Principle (v), which in general protects individuals from being named in a broadcast without their consent. In this case, it is the Authority’s view that Principle (v) was breached because B was clearly identified in the broadcast and his work-place details were disclosed, despite his express preference that they not be disclosed. No public interest defence is applicable.

Tape Retention

[25] Finally the Authority expresses its concern that the broadcaster did not provide a tape of the broadcast complained about. Principle 8 of the Radio Code requires broadcasters to keep tapes of broadcasts such as the one complained about for a period of 35 days after broadcast. The Authority notes the complainant’s comments that the absence of tape "must be a severe impediment to the Authority’s work." The Authority agrees. It has recorded its concern in earlier decisions that a broadcaster’s failure to provide a tape of the item complained about hinders its ability to determine a complaint. Although the broadcaster’s failure to comply with Principle 8 did not substantially affect the Authority’s ability to determine these complaints, it reminds The RadioWorks of its obligations to keep tapes in accordance with the Radio Code and to ensure that it has in place a proper procedure for dealing with complaints under s.5(a) of the Broadcasting Act.

For the above reasons, the Authority declines to uphold the standards complaint that the action taken was insufficient. The Authority upholds the privacy complaint that B’s privacy was breached and it makes no order as it considers that the action taken by the broadcaster was sufficient.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
19 September 2002

Appendix

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

1. B’s Formal Complaint to The RadioWorks Ltd – 15 May 2002
2. B’s Privacy Complaint to the Broadcasting Standards Authority – 15 May 2002
3. The RadioWorks’ Response to the Formal Complaint – 31 May 2002
4. The RadioWorks’ Response to the Authority (Privacy) – 31 May 2002
5. B’s Referral of the Standards Complaint – 16 June 2002
6. The RaidoWork’s Response to the Authority (Standards) – 28 June 2002
7. B’s Final Comment – 13 July 2002