BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An article in "The Press" on 1 June reported that Mr Sumner had been awarded a

lump sum of $10,000 by the Accident Compensation Appeal Authority following

injuries he had suffered when running into a fence post while crossing a paddock at

night and being startled by a bull. The talkback host on 3ZB that morning (Mr Mike

Hosking) referred to the item in some detail.

Mr Sumner complained to the Broadcasting Standards Authority under s.8(1)(c) of the

Broadcasting Act 1989 that the talkback host's comments had been sarcastic,

disparaging and offensive, and had breached his privacy.

Pointing out that the broadcast had not disclosed any facts not already contained in

the article and, moreover, Mr Sumner had consented to their disclosure having applied

to the Appeal Authority, RNZ declined to uphold his complaint. It also declined to

accept a later complaint that the broadcast had been unbalanced and unfair to Mr

Sumner as it was received outside the period during which a broadcaster must accept a

formal complaint.

For the reasons given below, the Authority declined to uphold the privacy complaint.

Decision

The members of the Authority have read the correspondence (summarised in the

Appendix) which includes the newspaper article to which the broadcast referred. As

is its practice, the Authority has determined the complaint without a formal hearing.

Referring to an article in that morning's "Press", the talkback host on 3ZB spoke

about a man who had been awarded $10,000 by the Accident Compensation Appeal

Authority against a recommended payout of $7,000. The newspaper article reported:

Mr Sumner, 37, at the time of the accident, was startled by the bull while

walking across a paddock at night. He ran into a fence post and his injuries

included a bleeding nose, grazed face and hands, bruises and a dislocated

shoulder.

In his complaint, Mr Sumner said the host had dealt with the newspaper item in:

a sarcastic, disparaging and a particularly offensive manner without checking

the veracity, accuracy and balance of the press article.

Listing the inferences to be drawn from the host's comments, Mr Sumner said he had

in effect been accused of "milking the public purse" and complained that the broadcast

involved an invasion of his personal privacy.

In its response to Mr Sumner, the Authority advised him that the matter raised by the

complaint could involve issues other than privacy and, shortly afterwards, received a

copy of a letter from Mr Sumner's solicitor to RNZ observing that the host's

comments were "clearly defamatory" of Mr Sumner.

In its response to the Authority on the privacy complaint, RNZ assessed the matter

under the five privacy principles laid down by the Authority. It noted that the

broadcast, by dealing with a newspaper story, had neither disclosed private facts nor

involved prying. Moreover, should the Authority disagree with that submission,

RNZ argued that the broadcast was probably in the public interest and, by appealing

to a public body, Mr Sumner had consented to any later public report of the

proceedings.

RNZ later declined to deal with a further complaint from Mr Sumner's solicitors

alleging a breach of a number of other broadcasting standards on the basis that it was

made well outside the time during which a broadcaster must accept formal complaints.

In these circumstances, the Authority was required to deal only with the privacy

complaint and it believed that principles (i) and (iii) were possibly relevant. They

read:

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.

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.

The Authority had some sympathy for Mr Sumner in view of the way the newspaper

article had been dealt with, but it agreed with RNZ that the broadcast dealt with a

matter that had been reported in three newspapers and had involved neither the

disclosure of private facts nor prying. The Authority declined not to uphold the

complaint.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
3 November 1994

Appendix

Mr Sumner's Complaint to the Broadcasting Standards Authority - 26 June 1994

Mr Grant Sumner of Christchurch complained to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that a broadcast on 3ZB

between 11.10 - 11.30am on 1 June breached his privacy.

An article in "The Press" on 1 June, Mr Sumner recorded, had reported that he had

been awarded a lump sum Accident Compensation payment of $10,000 because,

during the night, he had run into a fence post and had been injured after being started

by a bull (while crossing a paddock). The item reported that because of the injuries

Mr Sumner had had to give up his job as a part-time rubbish collector, had been

restricted in his sporting activities and had declined the ACC's initial offer of $7,000.

Mr Sumner said that the 3ZB talkback host (Mr Mike Hosking) referred to the article

in "a sarcastic, disparaging and a particularly offensive manner". He had been brought

into disrespect because of the snide comments which were listed by Mr Sumner. He

pointed out that his ACC claim was an appropriate one under the legislation.

Accusing the talkback host of damaging his reputation, Mr Sumner said he had in

effect been accused of "milking the public purse".

The Authority's Response to Mr Sumner - 30 June 1994

The Authority advised Mr Sumner that it accepted his complaint as one which alleged

a breach of privacy. It pointed out, however, that some of the matters raised dealt

with issues other than privacy and that, under the Broadcasting Act, it was necessary

to complain about such matters initially to the broadcaster directly.

Mr Sumner's Complaint to Radio New Zealand Limited - 4 July 1994

The Authority received a copy of a letter to Radio New Zealand Ltd written by Mr

Sumner's legal advisers. The letter said that the broadcast had accused Mr Sumner of

"ripping off" the system and asked that the tapes of the item containing the "clearly

defamatory" comments be retained until Mr Sumner's full instructions were received.

RNZ's Response to the Broadcasting Standards Authority - 5 July 1994

As is its practice, the Authority sent the privacy complaint to the broadcaster for

comment.

RNZ assessed the complaint against the five privacy principles applied by the

Authority. It maintained that the broadcast did not disclose private facts and enclosed

reports of the incident published by three major newspapers. Should the Authority

decide that any of the privacy principles had been contravened, RNZ added, it

believed that it was entitled to publish the material in the public interest and thus the

broadcast overrode any privacy contravention. Moreover, it added, Mr Sumner's

application for review amounted to consent that the facts could be disclosed publicly.

As some of the Authority's privacy principles have been contravened, RNZ declined

to uphold the complaint.

Further Correspondence

In response to a press report that the Authority was concerned that some privacy

complaints failed to address the complainant's concern, in a letter to the Authority

dated 14 August 1994, Mr Sumner asked the Authority for its advice on what other

complaints he should file. He was advised by the Authority in its reply dated 19

August that this matter had been canvassed in the Authority's letter to him of 30 June

and, moreover, that the matter seemed to be addressed in a preliminary way by this

lawyer's letter of 4 July to RNZ.

Mr Sumner's lawyers wrote to the Authority in a letter dated 31 August and said that

they had been instructed by Mr Sumner to complain - in addition to the privacy issue

- under standards R5, R9 and R14 of the Radio Code of Broadcasting Practice.

The letter reviewed the circumstances and content of the broadcast and argued that it

had breached those nominated standards. It concluded:

We look forward to receiving your confirmation that the above matters will be

raised when the complaint is heard.

In a letter dated 1 September 1994, the Authority explained to Mr Sumner's legal

advisers that complaints - other than one alleging a breach of privacy - had to be made

initially to the broadcaster. It also pointed out that a broadcaster was obliged to

accept a formal complaint only if made within 20 working days of the broadcast

complained about. However, a broadcaster retained the discretion to accept a

complaint outside that period and the Authority advised that the letter of 31 August

had been sent to RNZ for its decision.

In a letter dated 5 September 1994 copied to the Authority, RNZ advised Mr

Sumner's legal advisers that it declined to accept the 31 August letter as a formal

complaint that the broadcast on 3ZB on 1 June breached standards R5, R9 and R14 of

the Radio Code.

It reached that decision on the basis that the original complaint was primarily

concerned with a breach of privacy, that the legal advisers' letter to RNZ on 4 July

was mainly concerned to ensure that the tapes were retained and although it referred to

the possibility of a formal complaint, it was not followed up within 20 working days

and, indeed, not until the 31 August letter. RNZ concluded:

The letter of 4 July to 3ZB, which the Company reads as notice that formal

complaint action was contemplated other than the privacy complaint to the

Authority, referred specifically to only one alleged failing in the programme,

namely, alleged defamation, which is not a matter for formal complaint. Specific

programme standards against which you would wish the complaint to be

assessed are cited for the first time in your latest letter to the Authority.

The Company notes that your letter of 4 July to 3ZB and your letter of 31

August to the Authority are both out of time. The Company therefore declines

either to regard the former as notice-within-time that a formal complaint to the

Company was contemplated by yourselves or your client, or to accept or

consider a formal complaint or complaints as proposed in the latter.

On receipt of a copy of RNZ's advice, in a letter dated 6 September 1994 the

Authority asked Mr Sumner's legal advisers for a brief, final comment on the privacy

complaint.

Mr Sumner's Final Comment to the Authority - 9 September 1994

In a letter to the Authority Mr Sumner's legal advisers repeated the points made by

Mr Sumner in his initial complaint that he believed the talkback host's gratuitous

comments were a breach of his privacy and had exposed him to ridicule and suspicion.

Expressing the opinion that the bull's involvement had made the story newsworthy,

the letter concluded:

Had Mr Sumner been injured playing rugby then no doubt the story would have

got no coverage at all. The fact remains however that Mr Sumner feels as though

a rather painful and difficult period of his life has been exposed in an unfair

manner to public scrutiny. Mr Hosking's invective may well have been better

directed at the Accident Compensation Corporation (as it then was) rather than

our client.

Mr Sumner, in a letter dated 10 September, addressed the issue of privacy and

maintained that the talkback host had gone beyond the role of host and had broadcast

material which was offensive and denigratory to him. He stated that the broadcast had

not maintained standards of integrity, objectivity and impartiality and had infringed

his privacy.

Further Correspondence

A copy of the letters from Mr Sumner and his solicitors were sent to RNZ which, on

15 September 1994, maintained that the broadcast did not invade Mr Sumner's

privacy in contravention of the standard.