BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A weekend in the Wairarapa was the prize in a competition run by radio station 91ZM in Wellington in the first week of February. Listeners were invited to write in and explain why they deserved this holiday. Some entries were read each day, including one from "Malcolm" on Wednesday, and he was subsequently chosen as the winner on Friday. His winning entry was read on both days and he was spoken to on-air on Friday after the announcer telephoned his named place of work and asked for him by name. His entry detailed how his wife of 13 years had left him and his two sons (aged 12 and 9) a little over a year previously as she was having an affair with a 19-year-old. His letter concluded by stating his former wife "has since been dumped by the 19-year-old".

DD, the former wife, complained to 91ZM that in view of their contents, the broadcasts on 3 and 5 February breached broadcasting standards and her privacy. As she did not receive a response within 20 working days, she referred her complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

On behalf of 91ZM, The Radio Network Ltd acknowledged that the broadcasts could have been embarrassing for the complainant but denied any breach of standards or invasion of privacy.

Dissatisfied with The Radio Network’s decisions, DD referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the privacy complaint in respect of the second broadcast.

Decision

The members of the Authority have listened to the items complained about, have read a transcript of MD’s competition entry, and have read the correspondence which is listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

In the first week of February 1999, radio station 91ZM in Wellington ran a competition for which the prize was a weekend for two in the Wairarapa, including accommodation, meals and tickets for events. Listeners were invited to write to the station explaining why they deserved the holiday. The Morning Crew on 91ZM selected some entries to be read on air, and those entries became the finalists for the major prize at the end of the week.

On Wednesday 5 February, the Crew read out a fax received from "Malcolm" in which he described how his wife of 13 years had left him and his two sons aged 9 and 12 just over a year previously because of her relationship with a 19-year-old. During a broadcast on Friday 7 February, "Malcolm’s" entry was drawn as the winner. Attempts to telephone him were unsuccessful, but he later rang the broadcaster.

During the second call, "Malcolm’s" full name and place of work were broadcast as was the first name of his new partner. His faxed entry referring to the details given above was read again on air. The programme’s host made a comment which drew attention to Malcolm’s claim that his former wife had since been "dumped" by the 19-year-old.

DD complained about both Wednesday’s and Friday’s broadcasts. Referring to her ex-husband’s letter which was read out on each occasion, she said it was embarrassing to her and contained biased and inaccurate material. Both she and her children, she wrote, had put the marriage break-up behind them, but the broadcasts which gave her ex-husband’s full name and occupation included degrading comments from the announcers. These broadcasts, she contended, had violated her own and her children’s privacy. She also complained that broadcasting standards had been breached.

When the broadcaster did not respond to her complaint within 20 working days, she referred the complaint to the Authority.

On behalf of 91ZM, The Radio Network apologised that action had not been taken on the complaint. In response to DD’s letter, it contended:

1. It is stretching it to say there were degrading and judgmental comments. There were
    some background noises and one minor comment only.

2. No surname was used in the first broadcast.

3. The occupation of "Malcolm" … was not mentioned.

The broadcaster concluded:

"While the broadcasts may have been embarrassing to the complainant, there is nothing here to suggest malice or the intentional invasion of privacy. We concede a little judicious editing of the letter may have been wise, but at no stage was her or the children’s name mentioned."

TRN also sent the Authority a report from the station manager of 91ZM in which he maintained that the Crew’s comments were non-judgmental. He added that DD had telephoned after the broadcast and he, the station manager, had assured her that neither the competition nor the name of the winner would again be broadcast. He noted that the complainant had not heard the broadcast herself, but had been advised of it by a friend. A copy of the winner’s letter read on air was also included in the broadcaster’s response to the Authority.

In her final comment, DD pointed out that she and her children were linked to the broadcast when her ex-husband’s name was given on air. As a result, friends and acquaintances who might have known only the barest facts, were informed fully about aspects of her personal circumstances and reasons for her marital breakup, she wrote. That had breached her and her children’s privacy and, she added:

"It may also interest you to know that my eldest son was so mortified and embarrassed by his father’s actions and the ensuing broadcast that he enquired about the legalities of changing his last name from that of his father’s to my maiden name – thus not linking him to the proceedings and protecting his privacy!"

D D considered that it was not relevant to her complaint that she had not heard the broadcast personally, pointing out that her informant had been able to link her with the events described in the letter.

The Authority’s Findings

As a preliminary matter, the Authority notes that DD’s letter to 91 ZMFM which was headed "Formal Complaint" was not responded to within the statutory period of 20 working days. The Authority expects broadcasters to have systems in place to ensure that formal complaints are dealt with appropriately.

The Authority first considers DD’s complaint that the broadcast on Friday morning breached her privacy. Under s.4(1)(c) of the Broadcasting Act 1989, broadcasters are required to maintain in their programmes and their presentation standards consistent with the privacy of the individual. In assessing privacy complaints, the Authority in 1996 advised broadcasters of seven privacy principles pursuant to which it assesses privacy complaints. Privacy Principle (i) is relevant to this complaint, and it provides:

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.

The principle requires several matters within the broadcast to be addressed before a complaint is sustained. The first question for the Authority relates to identity: was the complainant identified by the broadcast? Because the Friday broadcast revealed, first, the name and place of work of DD’s former husband; secondly, that they had been separated for just over a year: and thirdly, that they had two children now aged 9 and 12, the Authority accepts that listeners who were neighbours, relatives or acquaintances of DD would have been able to identify her reasonably easily. Indeed, the person who advised her of the broadcast evidently did so.

The next matter to be considered by the Authority is whether private facts were disclosed. The Authority again accepts that the details of the marital break-up included in the broadcast were matters which D D was justified in considering to be private facts.

Privacy Principle (i) also requires that the private facts disclosed be "highly offensive and objectionable to the reasonable person". In determining this aspect, the Authority is of the view that the facts disclosed on this occasion were indeed highly offensive and objectionable because of their personal nature.

Other privacy principles acknowledge the defences of, first, public interest in the facts released, and secondly, whether consent has been given by the party who has complained about the facts released. Neither applies in this situation.

Accordingly, the Authority finds that the broadcast on Friday morning breached D D’s privacy, as it was in contravention of s.4(1)(c) of the Broadcasting Act.

The Authority next considers the privacy complaint about the Wednesday broadcast, and concludes, because there were insufficient identifying details included in the broadcast, that privacy principle (i) was not breached.

DD also complained that the broadcasts breached the broadcasting standards. The Authority considers that standard R5 of the Radio Code of Broadcasting Practice is the most applicable standard. It requires broadcasters:

R5  To deal justly and fairly with any person taking part or referred to in any programme.

As insufficient identifying details were contained in the Wednesday broadcast, the Authority considers that R5 was not contravened at that time.

As for the Friday broadcast, the Authority considers that privacy is the core of DD’s complaint. Accordingly, on this occasion, because the fairness and privacy issues overlap, it subsumes the standard R5 requirement under the provisions of s.4(1)(c).

For the reasons above, the Authority upholds the complaint that a broadcast on 5 February 1999 by 91ZM in Wellington, a station of The Radio Network Ltd, breached s.4(1)(c) of the Broadcasting Act 1989.

It declines to uphold any other aspect of the complaints.

Having upheld a privacy complaint, the Authority may make an order pursuant to s.13 or s.16 of the Broadcasting Act 1989. It invited submissions from the parties on the question of penalty. A submission was received from the broadcaster in which it argued that a written apology would be suitable. The Authority disagrees. It considers that the second broadcast disclosed personal details for which monetary penalties are appropriate.

Orders

1. Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders The Radio Network Ltd to pay compensation of $250.00 to DD within one month of the date of this decision.

2. Pursuant to s.16(4) of the Act, the Authority orders The Radio Network Ltd to pay costs to the Crown in the sum of $250.00 within one month of the date of this decision.

Both orders shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
14 June 1999

Appendix

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

1. DD’s Complaint to 91ZM, Wellington – 22 February 1999-04-19

2. DD’s Referral to the Broadcasting Standards Authority – 31 March 1999

3. The Radio Network Ltd’s Response to the Authority – 9 April 1999

4. DD’s Final Comment – 25 April 1999

5. The Radio Network Ltd’s submission on penalty – 26 May 1999