BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

Birthday calls broadcast by 1XX in Whakatane on the morning of 7 April 1999 included one to BB who, it was said, was 50 on Saturday. The call included the comment that she was to be reunited on that day with her son whom she had given up for adoption 30 years ago.

BB complained to Radio Bay of Plenty Ltd, the broadcaster of 1XX, that this incorrect statement was offensive and an invasion of her privacy.

Explaining that an apology had been broadcast on 8 April and that a complaint had been made by the broadcaster to the police, Mr Glenn Smith, the broadcaster's Managing Director, apologised for the distress caused by the broadcast.

Dissatisfied with the broadcaster’s decision, BB referred her complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint that the broadcast breached B B’s privacy, and declines to uphold the complaint about the inadequacy of the broadcaster’s action.

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence which is listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

The birthday calls broadcast by Whakatane radio station 1XX on 7 April included one for BB who, it was said, was "50 on Saturday". The call continued:

This is an extra-special birthday for her as tonight she will be reunited with the son she gave up for adoption 30 years ago. From her four children.

BB complained to the station about the broadcast, which she described as offensive and an invasion of privacy. The remarks, she added, had caused her embarrassment and humiliation. While she appreciated the steps that had been taken by the broadcaster, she considered that further action was necessary in view of the objectionable nature of the broadcast.

Mr Glenn Smith, Managing Director of Radio Bay of Plenty Ltd, the broadcaster of 1XX, responded with a written personal apology. He recalled that the station had broadcast, at BB’s request, an apology on the morning of 8 April. He also pointed out that the company had lodged a complaint with the police about the call.

When she referred her complaint to the Authority, BB said the call was incorrect and "highly distasteful". She noted that the broadcaster had complained to the police, and commented that she appreciated the broadcast apology. Nevertheless, she wrote, her privacy had been abused and she had been very embarrassed.

In his report to the Authority, Mr Smith explained that he had responded to the complaint from BB with apologies both personally and on behalf of the station. Because of the privacy issue involved, he noted, he had suggested to BB from the outset that she seek legal advice.

By way of explanation of the broadcast, Mr Smith pointed out that it was made in good faith. A complaint had been laid with the police, who were able to obtain the phone records. However, the police were not prepared to take action unless there was evidence that the call was malicious. This was difficult for the station to prove, Mr Smith observed.

Mr Smith stated that 1XX had always tried to be "fair and fair-minded" in its 28 years of broadcasting. The station regretted the current incident and felt that it had been used by parties unknown. In conclusion, on behalf of the station Mr Smith again apologised to BB.

In her final comment, BB concurred with 1XX’s version of events. Nevertheless, her privacy and that of her children had been abused, she wrote, adding:

As I see it, two parties share responsibility for this. The item was taken to air even though it contravened 1XX’s own internal checks on content and sensitivity. Surely such checks and balances are in place precisely for the purposes of protecting the public from inappropriate comment, and from exploitation such as this.

The Authority’s Findings

The Authority notes that in its correspondence with the Authority the broadcaster described the broadcast of the birthday call for BB on 7 April as a potential breach of privacy principle (iii). The Authority has issued seven privacy principles which it applies when determining a complaint that a broadcaster has failed to maintain standards consistent with the privacy of the individual as required by s.4(1)(c) of the Broadcasting Act.

Principles (i), (iii) and (iv) provide:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

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.

As principle (iii) focuses on the method by which private information is obtained, rather than on the information disclosed, the Authority does not consider that it is applicable in this instance.

In this complaint, BB has complained that the broadcast was a serious invasion of her privacy as it included incorrect and offensive information.

The situation is similar to the facts dealt with in the Authority’s Decision No: 1997-161/162 (4.12.97). In that case, the broadcast congratulated two named students at a local high school on the birth of a baby. The facts in the broadcast were untrue and caused a great deal of distress to the students and their families.

In that instance, the Authority wrote:

With respect to principle i), the Authority considers the public disclosure of private facts about the two identifiable individuals – regardless of the veracity of those facts – is offensive and objectionable to a reasonable person, and is therefore in breach of principle i). The students themselves did not invite the unwelcome publicity, and are entitled to protection from the disclosure of a malicious lie. It is not a defence, in the Authority’s opinion, for the broadcaster to claim that the announcer did not know that the facts were untrue, or to attempt to lay the blame with the students who made the request. The responsibility rests with the broadcaster, and unless it has systems in place to ensure that such breaches cannot occur, any broadcaster is vulnerable to the kind of abuse of the airwaves that occurred on this occasion.

Next, the Authority applies privacy principle iv). That principle protects against the disclosure of private facts to abuse, denigrate or ridicule an identifiable person. In the Authority’s view, this principle was also breached by the broadcast. The students were identifiable and a malicious rumour about them, which was intended to attack them personally, was broadcast.

The Authority is of the view that this reasoning is applicable to BB’s complaint, and concludes that BB’s privacy was breached as the broadcast contravened privacy principles (i) and (iv).

BB has also asked the Authority to review the action taken by the broadcaster. While she expresses considerable sympathy for the station, and acknowledges its assistance, she asks the Authority to consider whether its actions were sufficient.

The Authority considers that the broadcaster’s reaction to the complaint was appropriate in the circumstances. As soon as the matter was brought to its attention, the station responded by broadcasting an apology and, in addition, by complaining to the Police about the malicious telephone call which was the source of the information contained in the broadcast. The broadcaster has apologised in writing to BB on more than one occasion.

In the Authority’s opinion, the broadcaster made an error of judgment in broadcasting the birthday call. However, it considers that the broadcaster’s actions on receipt of the complaint disclosed a genuine concern and displayed efforts to act responsibly to remedy the situation. Its actions, the Authority concludes, were sufficient and appropriate.

For the above reasons, the Authority upholds the complaint that the broadcast by Radio Bay of Plenty Ltd on 1XX in Whakatane of a birthday call on 7 April 1999 breached s.4(1)(c) of the Broadcasting Act 1999.

It considers that the subsequent action taken by the broadcaster was sufficient.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
29 July 1999

Appendix

The following correspondence was received and considered by the Authority in determining the complaint.

1. BB’s Complaint to 1XX - Radio Bay of Plenty Ltd – 23 April 1999

2. Broadcaster’s Response to BB – plus attachments – 30 April 1999

3. BB’s Referral to the Broadcasting Standards Authority – 11 May 1999

4. Broadcaster’s Report to the Authority – 20 May 1999

5. BB’s Final Comment – 8 June 1999