BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Advisory Opinion (No: AO1/94)

To: The Licence Holder and Chief Executive of Pirate FM, Wellington

Under s.21(1)(d) of the Broadcasting Act 1989, the Authority may issue to broadcasters "advisory

opinions relating to broadcasting standards and ethical conduct in broadcasting". This opinion

is issued pursuant to that provision.

The Authority received a complaint that the broadcast by your station between 5.00–6.00pm on

18 February 1994 referred to and breached the privacy of Mrs Suzi Archer. The comments were

made by the announcer, Mr Derek Archer, who is the complainant's husband from whom she said

she is legally separated.

In its decision on the complaint (No: 56/94), the Authority declined to uphold the privacy

complaint under s.4(1)(c) of the Act on the basis that the material disclosed was untrue.

The Authority recorded in the decision that it was outraged at your announcer's misuse of the

airwaves to make personal comments. It suggested that had it received a complaint under

standard R5 of the Radio Code of Broadcasting Practice, its decision would probably have been

different. That standard requires broadcasters:

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

programme.

Should Mrs Archer have complained under that standard, the complaint would probably have

been upheld as a blatant breach and you would have been censured strongly.

In addition, the Authority might well have upheld a complaint under standard R2 of the Code

which requires broadcasters:

R2   To take into consideration currently accepted norms of decency and good taste

in language and behaviour, bearing in mind the context in which any language

or behaviour occurs.

The Authority also records that this complaint has highlighted difficulties for complainants,

who might be unsure about whether or not to complain under the privacy provision or standard

R5, the "dealing unfairly" standard. This has also been apparent in other complaints it has

received. The Authority will address this matter in an Advisory Opinion to be sent to all

broadcasters.

The Authority intends to send a copy of this Advisory Opinion to the complainant, to the

Ministry of Commerce as the government department responsible for the administration of the

Broadcasting Act, and to all subscribers who receive copies of the Authority's decisions.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
26 July 1994

Advisory Opinion (No: AO2/94)

To: The Chief Executive of all television and radio broadcasters and subscribers

Under s.21(1)(d) of the Broadcasting Act 1989, the Authority may issue to broadcasters "advisory

opinions relating to broadcasting standards". This opinion is issued pursuant to that provision.

In an Advisory Opinion dated 25 June 1992, the Authority advised all broadcasters of the five

relevant privacy principles which it intended to apply to complaints which alleged a breach of

privacy under s.4(1)(c) of the Act. The Authority stated in that Opinion that the specific facts of

each complaint were especially important when privacy was an issue. It also said that the

principles listed on that occasion were not necessarily the only ones which would be applied.

By way of introduction, the Authority also notes that complaints which allege a breach of

privacy, unlike complaints which allege a breach of any of the other standards, may bypass the

broadcaster and be made directly to the Authority under s.8(1)(c) of the Act.

The Issue

In developing the privacy principles it intended to apply when complainants alleged the

unwarranted disclosure of private facts, the Authority was very conscious of the "public's right

to know", and acknowledged the existence of a "public interest" defence. It also acknowledged

that recording action in a public place was a defence to a complaint which alleged the

intentional interference (in the nature of prying) with an individual's interest in solitude or

seclusion.

As a consequence of its efforts to achieve a balance between the individual and the public, the

Authority has settled on a reasonably narrow definition of privacy. In contrast, the concept of

privacy advanced by some complainants is much wider than the Authority would accept.

Moreover, some complainants argue that the disclosure of "untruths" is a breach of privacy

whereas the principles apply only when "facts" are revealed.

The Solution

Taking into account, first, the fact that privacy complaints may be made directly to the

Authority based on the complainant's version of that concept (which may not correspond with

the Authority's) and secondly, that the statutory time limits during which a broadcaster must

accept complaints may elapse before the Authority's decision is issued, the Authority intends to

take the following action.

Upon receipt of all complaints made directly under s.8(1)(c) alleging a breach of the privacy

standard in s.4(1)(c) of the Broadcasting Act 1989, the Authority when acknowledging the

complaint will advise the complainant that it may be appropriate to lodge, in addition, a

complaint with the broadcaster alleging a breach, as appropriate, of standard G4 of the

Television Code or standard R5 of the Radio Code. It shall also follow this procedure on the

rare occasions when the complainant sends to the Authority for its information a copy of a

complaint to a broadcaster alleging a breach of privacy.

Reason

The Authority is established under the Broadcasting Act and its functions and powers are set out

there. While it is necessary to comply conscientiously with those requirements, the Authority is

of the view that its decisions on complaints should not be determined by technicalities at the

expense of a complainant's central concern.

For this reason, the Authority intends to adopt the above procedure.

The Authority would also encourage all broadcasters, when they receive a privacy complaint, to

consider assessing the complaint under standard G4 or R5 as appropriate.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
26 July 1994