BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

In the context of a discussion about the re-appointment of the All Black coach, the host of the breakfast show on Radio Sport broadcast by TRN on 15 September 1998 reported that the previous evening he had overheard John Hart in conversation with his wife in a public place saying something like "I thought Ross was supposed to be on my side".

Mr Black complained to The Radio Network Ltd, the broadcaster, that it was unethical to report a private conversation, and a breach of Mr Hart’s privacy.

TRN responded by noting that the host just happened to be in Mr Hart’s vicinity and overheard the conversation. It emphasised that the host would in no circumstances have engaged in any unethical action to Mr Hart’s detriment. As far as the alleged breach of privacy was concerned, TRN argued that in order for a complaint to succeed, the intrusion into the individual’s privacy had to be offensive, which it was not in this case. In addition, it argued that there was a major public interest at the time in the question of who the All Black coach would be. It therefore declined to uphold the complaint.

Dissatisfied with TRN’s decision, Mr Black referred the complaint 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 the privacy of a named individual.

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. On this occasion, the Authority determines the complaint without a formal hearing.

Speculation about the re-appointment of All Black coach John Hart was one of the themes of the breakfast show on TRN’s Radio Sport broadcast on 15 September 1998. In conversation with a caller, the host reported that the previous evening while in town, he had seen coach John Hart on the street with his wife and had happened to overhear part of a conversation between them. He said:

…wandering down the street central city Auckland about 20 to 7…Mr Hart was walking across the road…his wife had her arm around him…visibly upset he was…overheard to say – and I ducked around so that I couldn’t be seen -"But Ross was supposed to be on my side or Ross was supposed to be my supporter…"…That was a direct overheard quote and I presume that that Ross was not the Ross from Friends.

The host then speculated as to what that comment might have meant.

Mr Black complained to TRN that the report of an overheard private conversation breached Mr Hart’s right to privacy. He also complained that it was unethical, and sought a clear ruling from the Authority on the matter.

In its initial response, TRN asserted that the host would under no circumstances have engaged in unethical conduct to the detriment of Mr Hart. It observed that in fact the host had made the comment on air that perhaps Mr Hart had been talking about Ross from Friends.

In his referral to the Authority, Mr Black complained about the inadequacy of TRN’s response, and repeated his complaint.

A more detailed response from TRN dealt with the privacy issues. It referred to the Authority’s Privacy Principles and submitted that the only relevant one was principle (iii), which reads:

(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.

TRN argued that in order for a complaint under this principle to succeed, the intrusion must be offensive, which it clearly was not in this case. It suggested that comments made by the coach in a public place were a matter of public interest, particularly when they concerned his position as coach. It argued that there was no breach of principle (iii) because there was no intentional observation or following of the subject, as contemplated by the standard. In addition TRN contended that the position of the All Black coach was overwhelmingly a matter of public interest. Finally, TRN considered it of relevance that no complaint had been lodged by Mr Hart himself, and concluded that the complaint was made not to protect Mr Hart’s privacy, but to advance the ethical position of the complainant.

The Authority deals first with the initial response from TRN. It notes that the conversation broadcast was as reported by Mr Black (and confirmed by the Authority when it listened to the tape). Contrary to TRN’s assertion, it was the host who said that he did not believe that when John Hart referred to "Ross" he meant the Ross from Friends. The Authority also reminds TRN of its obligation under s.7(3) of the Broadcasting Act to notify complainants of their right to refer complaints to the Broadcasting Standards Authority.

The Authority then turns to privacy principle (iii) which it agrees is apposite on these facts. That principle protects against the disclosure of private and public facts where there is an intentional interference with an individual’s interest in solitude or seclusion. Such an intrusion must be offensive to a reasonable person. However, being observed, followed or photographed in a public place is not an intrusion into an individual’s privacy.

As reported by the programme’s host, Mr Hart was engaged in a private conversation with his wife. The host admitted that he positioned himself so as not to be observed by Mr Hart, and then eavesdropped on that private conversation. Subsequently he reported what he believed he heard and speculated as to what the remarks might mean.

The Authority finds this to be a clear breach of privacy principle (iii). Even if, as suggested, the topic of the private conversation was a matter in which the public was interested, it is clear that the conversation was not intended for public consumption. The Authority considers that the fact that the host admitted to having "ducked around" so that he could not be seen demonstrates that he was aware that it was not intended that he, or anyone else, should be privy to that conversation. It finds that he intentionally interfered with Mr Hart’s right to privacy. In order for a breach of the principle to occur, the intrusion must be offensive to an ordinary person. The Authority considers that it was offensive not only to listen secretly to a private conversation, but subsequently as the host of a sports programme, to publish those comments widely and to speculate as to their meaning. It therefore concludes that Mr Hart’s privacy was breached by the report.

The Authority then turns to privacy principle (vi), the public interest defence. That principle reads:

(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.

The broadcaster argued that the public interest in the question of who was to be the All Black coach was overwhelming. In addition, it argued that statements made by him in a public place were a matter of public interest, particularly when it concerned his position as coach.

The Authority does not agree with this interpretation. First, it makes the point that it is not clear from the snippet of conversation reported what exactly Mr Hart was referring to, and concludes therefore that the host’s conclusions were pure speculation. Secondly, the Authority reiterates that the conversation was a private one, a fact which was known to the host when he admitted that he had avoided being seen in order to eavesdrop on the conversation. While the Authority acknowledges that the remarks may well have been interesting to the public, it does not agree that it was in the public interest to report a snippet of an overheard conversation and to speculate on its meaning.

The Authority acknowledges the broadcaster’s argument that it was relevant that Mr Hart himself did not complain. However, it is not persuaded that that is germane. There may be a number of reasons why Mr Hart did not complain, including that he did not know of the broadcast.

As Mr Black intimated, there is an overlap between ethics and privacy in some circumstances. The Authority finds that is the case on this occasion. It regards the broadcast as an ethical lapse, the result of which was an invasion of Mr Hart’s privacy, and consequently a breach of the requirement in s.4(1)(c) of the Broadcasting Act 1989 that broadcasters maintain standards consistent with the privacy of the individual.

For the reasons set forth above, the Authority upholds the complaint that Mr Hart’s privacy was breached in a broadcast on TRN’s Radio Sport programme on 15 September 1998.

Having upheld a complaint, the Authority may make an order under s.13(1) and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on the question of penalty. Having received and considered those submissions the Authority decides that no penalty is warranted on this occasion.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
21 January 1999

Appendix

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

1.  Geoff Black’s Complaint to The Radio Network Limited – 15 September 1998

2.  TRN’s Response to the Formal Complaint – 21 September 1998

3.  Mr Black’s Referral to the Broadcasting Standards Authority – 8 October 1998

4.  TRN’s Response to the Authority – 2 November 1998

5.  Mr Black’s Final Comment – 10 November 1998