BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

During the Port FM Breakfast Show the presenters allegedly mentioned 'Jimmy from Omarama'. The Authority declined to determine a complaint from Jimmy Courtney that the broadcast breached his privacy, as the broadcaster was unable to provide a recording of the broadcast. The Authority however noted that on the basis of the information before it, it appeared unlikely the broadcast amounted to a breach of privacy. The Authority also recorded its expectation that broadcasters retain recordings of broadcasts for 35 days following the broadcast.

Declined to determine: Privacy 

Introduction

[1]  During the Port FM Breakfast Show the presenters allegedly mentioned 'Jimmy from Omarama' in relation to some email correspondence with him about Port FM's weather reports. Mr Courtney had disputed the towns/regions included in the report, and the presenters apparently 'had a laugh' about his email on air.

[2]  Jimmy Courtney complained that the broadcast breached his privacy. Mr Courtney did not hear the broadcast in question but was apparently informed by others that he had been mentioned on Port FM.

[3]  The broadcast allegedly took place on Port FM on 10 June 2015. Upon receiving Mr Courtney's privacy complaint, we requested a recording of the broadcast from Port FM. It informed us that because they are a 'music-based format' station, it does not record transmissions and so was unable to provide a recording. We requested instead an 'accurate-as-possible' transcript of what was said on air and this was given to the complainant for comment. The members of the Authority have read this transcript and the other correspondence listed in the Appendix.

[4]  The issue for us is whether we are able to determine the complaint in the absence of a recording of the broadcast.

Is the complaint able to be determined?

[5]  Section 11(b) of the Broadcasting Act 1989 states that the Authority may decline to determine a complaint if it considers that, in all the circumstances of the complaint, it should not be determined.

[6]  Broadcasters are expected to retain recordings of broadcasts for 35 days following the broadcast to cover the period of 20 working days in which someone can lodge a formal complaint. This is a longstanding expectation, but does not form part of any standard as it is not one of the areas specified in the Act which are to be covered in any code developed. The introduction to the Radio Code of Broadcasting Practice does however state that 'Radio broadcasters acknowledge their obligation to retain, for 35 days after the date of broadcast, the audio of all open line and talkback programmes, news and current affairs coverage'.

[7]  Given this wording in the current Radio Code, we can understand the broadcaster's position that its format is 'music-based' and therefore it believed it was not required to retain recordings. However, a determination of whether the complainant's privacy was breached by the programme in question necessarily requires careful consideration of the content and tone of the broadcast, as well as any relevant contextual factors. Without being able to hear the broadcast, we cannot verify exactly what was said, or in what manner. Therefore in the absence of a recording of the broadcast we reluctantly find that we have no choice but to decline to determine the complaint under section 11(b).

[8]  We are currently giving consideration to this issue (the retention of broadcasts) as part of a review of our three main codes of broadcasting practice, including the Radio Code. We will aim in the new codes to minimise the potential for us to be left in an unsatisfactory position as we have been in this case.

Comments

[9]  While we are unfortunately unable to determine Mr Courtney's complaint, we have informally considered the issues raised, based on the information before us.

[10]  If the complainant's assertion about what was said during the Port FM Breakfast Show is correct, no private facts appear to have been disclosed about Mr Courtney. His first name and town of residence, and the fact of his correspondence and/or dispute with Port FM about their weather report, is not information which is private or sensitive in nature. From the email correspondence we have seen it appears Mr Courtney was quite open about his criticisms of Port FM's weather report. Further, in general, an individual should reasonably expect that correspondence with, or feedback directed to, a radio host may be discussed on air and will not remain private.¹ We therefore consider it unlikely that the broadcast would have breached Mr Courtney's privacy, though we emphasise this is informal comment only and not a definitive finding under the privacy standard.

For the above reasons the Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
25 August 2015

Appendix

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

1      Jimmy Courtney's formal complaint – 10 June 2015

2      Mr Courtney's further comments re complaint – 11, 12 and 16 June 2015

3      Port FM's initial response to the complaint – 17 June 2015

4      The Authority's request for further information from Port FM – 25 June 2015

5      Port FM's response to the Authority – 26 June 2015

6      Mr Courtney's final comments – 28 June 2015

7      Port FM's confirmation of no further comment – 30 June 2015

¹ See, for example, Broughton and RadioWorks Ltd, Decision No. 2009-144