BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A list of people – excluding their names – who had been charged with serious crimes and

were now receiving psychiatric treatment was read on Radio Pacific between 9.00–

10.00am on 2 February 1994. The issue was raised as some 37 dangerous psychiatric

patients had been released from various hospitals and could not now be recalled.

Mrs Earlly complained to the Authority under s.4(1)(c) of the Broadcasting Act 1989 that

the broadcast breached the privacy of one of her relatives as sufficient information had

been released to enable him to be identified. She complained to Radio Pacific Ltd under

s.6(1)(a) of the Act that the broadcast was inaccurate, misleading and encouraged

discrimination against psychiatric patients.

Arguing that the incident in which the relative had been involved had been a matter of

considerable publicity at the time and was still of public interest, Radio Pacific denied that

the broadcast breached the privacy principles. It acknowledged that it had been

inaccurate in using the word "murder" when referring to Mrs Earlly's relative and by not

acknowledging the not guilty verdict "on the grounds of insanity". It denied any breaches

of the other standards. Dissatisfied with Radio Pacific's decision, Mrs Earlly referred her

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

For the reasons given below, a majority of the Authority upheld the aspect of the

complaint that the action proposed on the accuracy point upheld by Radio Pacific was

unsatisfactory.

Decision

The members of the Authority have listened to a tape of the broadcast complained about

and have read the correspondence (summarised in the Appendices). As is its practice, the

Authority has determined the complaints without a formal hearing.

The Radio Pacific talkback host (Ms Jenny Anderson) on Wednesday morning 2 February

read from a letter received from a nurse formerly at Kingseat Hospital listing murders

committed by people who were now psychiatric patients. One such item reported:

Murder, his father with crossbow, leg chewed off by a lion in the Auckland

Zoo. Currently in Mason Clinic.

Observing that the person referred to was a relative, Mrs Earlly complained to the

Broadcasting Standards Authority that the broadcast breached the privacy standards, and

to Radio Pacific that the broadcast contravened a number of broadcasting standards.

Privacy Complaint

In her privacy complaint, Mrs Earlly acknowledged that names had been omitted but

maintained that sufficient unique details had been released to allow the person referred to

above to be identified although the incidents had occurred some eight years earlier. Unlike

some recent well publicised incidents involving former psychiatric patients who had been

released because of "gaps in the system", her relative was correctly detained and was being

appropriately treated. The reference to him on the talkback show was invasive of his

privacy and those who were concerned for him. Moreover, the broadcast not only

intruded on people's privacy, it also interfered with the patient's rehabilitation. She

concluded by emphasising that the person referred to was not one of the "so-called 37

dangerous people" released into the community who had been the subject of recent media

attention.

The Authority accepted the complaint as one lodged under s.4(1)(c) of the Broadcasting

Act 1989 which reads:

4(1)  Every broadcaster is responsible for maintaining in its programmes

and their presentation, standards which are consistent with -

     (c) The privacy of the individual;

In its report to the Authority, Radio Pacific denied that the broadcast breached the privacy

standard. No individual, it wrote, had been identified although the incident referred to

was one which had received considerable publicity at the time and had been, and

continued to be, a matter of public interest.

Radio Pacific went on to suggest that Mrs Earlly's comments about her relative in her

letter supported the broadcast item's general concern that psychiatric patients were not

receiving adequate attention from the "system". However, as Mrs Earlly pointed out in her

final comment, her letter supported the opposite viewpoint.

In determining complaints which allege a breach of privacy, the Authority applies the

privacy principles it identified in an Advisory Opinion issued in June 1992. Principle (i) is

the main one applicable to this complaint and it reads:

(i) The protection of privacy includes legal 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 Authority agreed with Mrs Earlly that Radio Pacific's argument – that her relative was

not named – was irrelevant as sufficient particulars were disclosed to allow him to be

identified by some listeners at least. However, the Authority was not prepared to conclude

that the only private fact possibly disclosed – that this identifiable person was detained in

the Mason Clinic – contravened the requirement contained in principle (i). It did not

accept that the facts were highly offensive to a person of ordinary sensibilities.

While appreciating Mrs Earlly's desire to allow her relative to recuperate undisturbed, the

Authority also accepted that the relative's actions – albeit eight years ago – were matters

which received considerable media coverage at the time and that nothing had occurred

which could justify the Authority now concluding that the events, and the identifying

particulars about the person responsible, had become private facts again. As a

consequence, the Authority declined to uphold the privacy complaint.

Radio Code Complaint

As well as the complaint to the Authority alleging a breach of privacy, Mrs Earlly

complained to Radio Pacific that the item breached a number of standards in the Radio

Code of Broadcasting Practice. The item, she added, had breached the standards as it had

incorrectly stated that her relative had been convicted of murder whereas the relative had

been found not guilty of murder on the grounds of insanity. In addition, she maintained

that the item was misleading and had encouraged discrimination against people who were

at various stages of recovery and rehabilitation. In her view, the item had broadcast the

list of patients without doing sufficient research to discover the differences between the 37

former patients referred to in the media and the patients on the list disclosed by Radio

Pacific.

Radio Pacific assessed the complaint against standards R1, R5, R11 and R12 of the Radio

Code. They require broadcasters:

R1  To be truthful and accurate on points of fact in news and current affairs

programmes.

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

programme.

R11 To respect the privacy of the individual.

R12 To correct factual errors speedily and with similar prominence to the

offending broadcast or broadcasts.

Standard R11 is not dealt with further as it repeats the requirement in s.4(1)(c) of the

Broadcasting Act considered above.

With regard to the other standards, Radio Pacific maintained that the item was accurate

as required by standard R1 except when reporting that Mrs Earlly's relative had been

convicted of murder. In discussing the specific point, it accepted that the patient had, as

Mrs Earlly had explained, been found not guilty on the grounds of insanity. Further,

however, Radio Pacific maintained that the broadcast had not been unfair as it had not

been critical of the individual patients but had blamed the system as hospital units had

been closed regardless of the consequences for individual patients.

In summary, Radio Pacific concluded its report to Mrs Earlly:

For the reasons outlined above, Radio Pacific upholds your complaint in relation to

use of the word "murder". It is prepared to provide a more full explicit statement of

your relative's act, arrest, court hearing and sentence, and present situation in

order to correct the factual error. That apart your complaint is declined.

When she referred her complaint to the Authority, Mrs Earlly expressed her

disappointment both at Radio Pacific's approach and its accuracy in reporting her

comment about the role of the "system" (referred to above). She also questioned the degree

of compassion for patients displayed by the talkback host and argued that the item, by

reporting snippets from various sources, presented a "fearful and confusing" account

which did not help the public's understanding of the issues.

In considering the standards raised by the complaint, the Authority was unable to accept

that the item contained any inaccuracies – other than the basis for detention which Radio

Pacific acknowledged. It agreed with Mrs Earlly that the programme lacked clarity and it

was of the view that the reason for the broadcast was vague and, indeed, that it had not

explained what the issues were. However, the Authority decided it had not been unfair or

unjust to anyone referred to as, although some of the facts included were unpleasant, they

were public facts. With regard to the reason for the relative's detention, the Authority

concurred with Radio Pacific that the comment was inaccurate, but it did not consider

that, in addition, the item had been unfair to the relative.

Mrs Earlly expressed her displeasure at Radio Pacific's proposed action to deal with the

upheld aspect of the complaint. In view of her concern about the continuing publicity

about her relative, she regarded the broadcaster's proposed statement as a threat in bad

taste rather than an apology.

A majority of the Authority understood Mrs Earlly's reaction to the broadcaster's offer to

make a more explicit statement concerning her relative. Not only would it not be helpful

to the relative's recovery, it could well exacerbate the situation. Moreover, it was obvious

that the complainant was never going to accept this form of offer as a remedy. The

majority believed that any broadcast which dealt further with the issue would either

contain insufficient detail so that it would be incomprehensible to the listener or would

contain sufficient detail to identify explicitly the relative who had not been named in the

broadcast complained about. Indeed, it found it difficult to visualise how Mrs Earlly's

request for a broadcast acknowledgement that the use of the word "murder" was a breach

of law and a public apology could be combined without repeating the facts disclosed in the

original broadcast.

A minority of the Authority considered that Radio Pacific's offer of a broadcast statement

was an honest attempt to make amends whereas the majority was of the opinion that the

proposal was not satisfactory.

The Authority considered that a letter of apology to Mrs Earlly would seem to have been

the appropriate remedy at the time the accuracy complaint had been upheld and it believes

that this action could still be taken. Although it does not have the jurisdiction to order this

action, the Authority notes that Radio Pacific has now offered a letter of apology.

For the reasons given above, a majority of the Authority upholds the

complaint that the action proposed by Radio Pacific Ltd, having upheld the

complaint that the broadcast on 2 February was inaccurate in part, was

not satisfactory.

The Authority unanimously declines to uphold any other aspect of the

complaints.

Having upheld part of a complaint, the Authority may make an order under s.13(1)(d) of

the Broadcasting Act 1989.

The situation with regard to this complaint is unusual as most complainants who refer

complaints to the Authority on the basis of dissatisfaction with the action taken, usually

seek the broadcast of an apology. On this occasion, the complainant opposed a proposed

broadcast explanation as it would probably be necessary, when explaining the background

to the broadcast, to disclose the identity of her relative.

The Authority's powers when dealing with a complaint about the action proposed allow it

to order a broadcast or the publication of a statement. Those procedures are not the

appropriate actions in this instance and, accordingly, the Authority declines to make any

order on this occasion. The Authority would repeat however that it considers a written

apology from Radio Pacific to Mrs Earlly to be the appropriate action and in view of the

broadcaster's recent offer of such an apology, it unanimously recommends to Radio Pacific

to proceed with this action.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
June 1994

Appendix I

Mrs Earlly's Complaint to the Authority

In a letter received on 2 March 1994, Mrs Shirley Earlly of Auckland complained directly

to the Broadcasting Standards Authority about a broadcast by Radio Pacific Ltd between

9.00 - 10.00am on 2 February 1994. She claimed that the broadcast failed to maintain

standards consistent with the privacy of an individual as required by s.4(1)(c) of the

Broadcasting Act 1989.

The offending comment, she wrote, arose from the discussion that a number of dangerous

psychiatrically disturbed offenders had been released into the community and that there

was no way to return them to hospital.

In dealing with the topic, the talkback host on Radio Pacific said she had a list of 40 similar

cases from which she read some examples. Although names were excluded, Mrs Earlly

maintained that:

The words used to describe at least one person from that list were so specific as to

definitely identify someone whose case involved some unique circumstances. The

incidents concerned with this case date back to eight years ago, the person

concerned does not have a parallel comparison with the "Lake Alice" cases where

persons have "fallen through gaps in the system". The person referred to and

identified on the list is one who does fall within present acts of law and is being

treated appropriately and has not done anything to cause concern at this time. The

family of this person, of which I am a member, are also trying to recover and the

inappropriate quoting of the specific details in the manner broadcast by Jenny

Anderson [the talkback host] is very invasive of the privacy and solitude of all

concerned.

Mrs Earlly expressed her concern that a list existed and had been made available to Radio

Pacific.

Radio Pacific's Response to the Complaint

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter is dated 1 March 1994 and Radio Pacific's barrister's reply is dated 17 March.

Radio Pacific acknowledged that the talkback host had read the list described in the

complaint which had been sent to her by a nurse. Emphasising that names were not

mentioned, Radio Pacific said the following comment was broadcast about the member of

the complainant's family:

Murder, his father with a crossbow, leg chewed off by a lion in the Auckland Zoo.

Currently in Mason Clinic.

That comment, Radio Pacific continued, did not amount to a breach of privacy for the

following reasons:

1) No individual had been identified;

2) Names were expressly withheld so as not to be unfair to the individual's

relatives;

3) The incidents had been well publicised at the time;

4) Despite the fact that it occurred eight years ago, it was still a matter of

public interest;

5) The comments were directed at the system - not at individuals.

Radio Pacific stated that the broadcast had included the source of the letter and had not

said that any of the people listed were included among the list of 37 dangerous people who

had been released from hospital.

Mrs Earlly's Final Comment to the Authority

The letter from Mrs Earlly dated 13 April 1994 in response to Radio Pacific's comments

also referred the other aspects of the complaint to the Authority included in Appendix II.

With regard to the privacy aspect, she said that the unusual details involved in her

relative's offending would ensure that he had been identified. She also objected to Radio

Pacific's misquote of her letter which reversed the meaning of her letter of complaint.

She disagreed with Radio Pacific that privacy was not an issue, stating:

Surely there must be a time when the people concerned in a tragedy have the right

to heal their wounds and not be dragged up in sordid detail - especially with the

type of language used on this occasion eg " ... leg chewed off by a lion ...".

Appendix II

Mrs Earlly's Complaint to Radio Pacific Limited

In a letter dated 21 February 1994, Mrs Shirley Earlly of Auckland complained to Radio

Pacific Ltd about a broadcast between 9.00 - 10.00am on Wednesday 2 February.

While referring to some patients at Lake Alice Hospital, Mrs Earlly stated, the talkback host

read out a list of people - omitting names - who were currently psychiatric patients. One

such example referred to a patient currently in the Mason Clinic who had been charged

with the murder of his father with a crossbow and who had previously lost his leg during

an accident at the Auckland Zoo.

Mrs Earlly maintained that the comment breached the broadcasting standards for a

number of reasons:

1) The reference to murder was incorrect and could be considered to be

libellous.

2) The information broadcast in relation to the individual referred to was

incorrect.

3) By comparing the list with the "Lake Alice" cases, the broadcast was

misleading.

4) As the broadcast intruded on the person's recovery, it might encourage

discrimination.

5) The broadcast raised matters of privacy which were to be the subject of a

complaint directly to the Broadcasting Standards Authority.

Mrs Earlly concluded:

Surely it is the duty of any broadcaster, to research facts before making

comparisons for the whole of New Zealand to hear. I suspect in this particular

instance, there was not enough research or understanding of the difference

between the earlier cases discussed and at least some on the list used.

Radio Pacific's Response to the Formal Complaint

Radio Pacific's barrister advised Mrs Earlly of the broadcaster's decision in a letter dated 17

March 1994.

It began by reporting the following background to the broadcast. The talkback host

announced that she had received a letter from a nurse who had worked in the Forensic

Unit at Kingseat Hospital and who had sent her "a list of murders committed by former

psychiatric patients who are obviously now back in psychiatric care". Names were not

included as the host said that would be unfair to the families. One of the examples read

out stated:

"Murder, his father with a crossbow, leg chewed off by a lion in the Auckland Zoo.

Currently in the Mason Clinic".

The complaint, Radio Pacific continued, had been considered under standards R1, R5, R11

and R12 of the Radio Code of Broadcasting Practice.

It then dealt with the complaint under each standard.

Radio Pacific said the item was accurate except that the person referred to was found not

guilty of murder on the grounds of insanity. Moreover, as was apparent from its context,

the broadcast had been making the point that the system - not the patient - had been at

fault. The broadcast did not involve the invasion of an individual's privacy as the trial had

received considerable publicity and it was public knowledge that Mrs Earlly's relative was

receiving psychiatric care.

To correct the error about the use of the word "murder", Radio Pacific stated:

[It] is prepared to broadcast a correction replacing the word "murder" with the

word "killing". It is prepared to make a full statement relating to your relative's act,

the circumstances surrounding it, his sentence and his current status. His name

would not be identified.

Radio Pacific then dealt with the specific points raised by Mrs Earlly and again

acknowledged that the use of the word "murder" was incorrect but maintained that

otherwise the standards had not been breached.

Mrs Earlly's Complaint to the Broadcasting Standards Authority

Dissatisfied with Radio Pacific's response, in a letter dated 13 April 1994 Mrs Earlly

referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

Mrs Earlly expressed particular concern about the action proposed by the broadcaster in

relation to the incorrect usage of the word "murder", observing:

The whole purpose of my complaint evolves around my objections to the continual

publicising of cases such as that of my relative. - NOT encouraging the

heightening of publicity. I am sorry, but this to me, is more of a "threat" than an

apology and would be in very bad taste. I would only be happy with an

acknowledgement from Radio Pacific that the use of the word "murder" was a

breach of the law and a public apology - WITHOUT DRAGGING ANYBODY ELSE

INTO MORE PUBLICITY!

She was also upset that Radio Pacific had "misread" her letter of complaint. Whereas she

had complained that details had been read out about a person who was legally restrained

and being treated appropriately, Radio Pacific had quoted her complaint and the sentence

- "one who does fall within present acts" - as "one who does not fall within". She described

the difference as "drastic".

Proceeding to deal with three specific points in Radio Pacific's letter in response to her

complaint, she said first that it was confused and inaccurate about the role of the Mason

Clinic. Secondly, she maintained that the talkback host had not named the patients to

whom she had been referring only because they had served their purpose as being a source

of news. She had shown little real concern for them.

Thirdly, she disagreed with Radio Pacific that privacy was not an issue.

The remainder of her letter dealt with the broadcaster's reaction to her privacy complaint

and has been included in Appendix I.

Radio Pacific's Response to the Authority

As is the Authority's practice, it sought the broadcaster's response to the referral. Its letter

is dated 19 April 1994 and Radio Pacific's barrister's reply, 18 May.

Explaining that Radio Pacific acknowledged that the use of the word "murder" was

incorrect, it said that it was prepared to provide Mrs Earlly with a letter of apology. It

believed that the standards had not otherwise been contravened.

As for the privacy complaint, Radio Pacific addressed each of the privacy principles applied

by the Authority and argued that none had been breached.

Mrs Earlly's Final Comment to the Authority

When asked to comment on Radio Pacific's reply, in a letter dated 6 June 1994 Mrs Earlly

expressed her belief that the information about the patients broadcast was "privileged" and

that there was no reason why their present whereabouts should become public. She also

argued that the inference to be drawn from the broadcast was that the patients referred to

were similar to the "dangerous Lake Alice patients" about whom there was considerable

public discussion at the time. Furthermore, facts about a matter eight or more years old

should not have been broadcast.

With regard to the written apology now offered, she recorded her thanks but added that

the broadcast had involved irresponsible use of words. She commented:

Therefore it would be my wish during a similar time schedule as the original

broadcast, that an admission and apology be broadcast by Radio Pacific that it had

exceeded the law in a past programme, in using the word "murder", and without

any reference being made to the persons whose details were broadcast originally.