BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A joke call advising a woman that the tickets for her forthcoming overseas trip were

cancelled was broadcast on 91ZM in Christchurch on 31 August 1995 at 6.50am and

7.50am and possibly on other occasions that day.

Ms Koster, the person named in the broadcast, complained through her solicitors

directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the

broadcast breached her privacy. In addition, she complained to the broadcaster that

the broadcast contravened the broadcasting standards in that it failed to deal with her

fairly.

In its response to the privacy complaint, RNZ stated that the date and duration of the

proposed trip were not referred to and neither was the complainant's address nor

telephone number. With respect to the complaint that Ms Koster was treated

unfairly, RNZ noted that the call, made on the previous day, was not broadcast until

24 hours later and that the friend who set up the joke had telephoned the station to

ascertain when it would be broadcast as the complainant and her friends did not want

to miss it. RNZ suggested that the complainant was aware of the purpose of the call

and knew that it had been recorded and had not objected at the time to it being

broadcast. It rejected the allegation that she had been treated unfairly. Dissatisfied

with RNZ's decision on the standards complaint, Ms Koster's solicitors referred the

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

Act 1989.

For the reasons given below, the Authority upheld the complaint that standard R5

(dealing fairly) was breached and declined to uphold the privacy complaint.

Decision

The members of the Authority have listened to the item complained about and have

read the correspondence (summarised in the Appendix). As is its practice, the

Authority has determined the complaints without a formal hearing.

In a birthday call the recipient was told by a person purporting to be her travel agent

that plans for her forthcoming overseas trip had to be changed because of problems

with ticketing. The conversation, including her angry reaction, was broadcast by

Radio New Zealand Ltd on 91ZM (Christchurch) on 31 August 1995 at 6.50am,

7.50am and possibly on at least one other occasion during the day. It was introduced

by the announcers who named the recipient of the call, and stated that she was about

to leave on an overseas trip. What, they asked, could be worse than to have prepared

for a long-awaited overseas trip, and then to be told at the last minute that the

arrangements had to be changed?

Ms Koster, the recipient of the call, complained to the Broadcasting Standards

Authority through her solicitors that the call breached her privacy for two reasons.

First, her permission was not sought for the broadcast of the telephone conversation

and secondly, the fact of her absence from Christchurch should not have been

broadcast because of the potential for her home to be burgled while she was away.

She alleged that the broadcast was in contravention of s.4(1)(c) of the Broadcasting

Act 1989 which reads:

(1) Every broadcaster is responsible for maintaining in its

programmes and their presentation, standards which are

consistent with

(c) The privacy of the individual;

She also complained to RNZ that she had been treated unfairly and unjustly by the

broadcaster in breach of standard R5 of the Radio Code of Broadcasting Practice. That

standard requires broadcasters:

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

any programme.

In its response to the privacy complaint, RNZ first examined the background to the

telephone call. It noted that the item originated from a suggestion by one of Ms

Koster's friends and that the call, made on 30 August 1995, was not broadcast until

the following day. During that 24-hour interim period, it recorded that a friend of Ms

Koster's called to inquire when the item would be broadcast as everyone in the office

wanted to hear it. The only concern expressed at the time was about the swear words

used, to which the station responded that they had been "beeped" out.

As far as the content of the call was concerned, RNZ rejected Ms Koster's allegation

that it alluded to the fact that she was leaving on a seven week long trip to England the

following Sunday. According to its tape of the conversation, neither departure day or

date nor the proposed duration of the trip was mentioned. In its view, Ms Koster

would have been aware of the purpose of the call and known that it had been recorded.

It also believed her reaction confirmed that she was familiar with the hosts' particular

style of humour and practical joking. RNZ noted that neither Ms Koster's address

nor telephone number were mentioned and pointed out that there were 11 Costers and

9 Kosters in the relevant telephone book.

Reviewing the five privacy principles developed by the Authority, RNZ asserted that

none applied to the broadcast. It maintained that the suggestion of prying was not

involved because the information on which the call was based was volunteered by a

workmate who supplied the detail. In addition, it maintained that Ms Koster's

recorded reaction to the call, coupled with the inquiry by her friend ascertaining when

the item would be broadcast, indicated that she was aware of the nature and purpose

of the call. Consequently, RNZ concluded, her privacy was not breached. Moreover,

in RNZ's view, it was clear that Ms Koster was aware of the impending broadcast and

since she made no attempt to prevent it, she had implicitly consented to the playing of

the item. In that instance, RNZ invited the Authority to consider applying privacy

principle v), which prevents an individual who has consented to the invasion of their

privacy from later initiating a claim.

With respect to the allegation that she had been treated unfairly, RNZ maintained that

Ms Koster was aware the call had been recorded and knew that it would be broadcast.

It therefore rejected that aspect of the complaint.

The Authority's Findings

Privacy

Of the five privacy principles which have been developed by the Authority when

dealing with privacy complaints, it considered principle i) was relevant. That

principle 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.

First the Authority examined the facts which had been broadcast. In addition to Ms

Koster's name, the facts about her which were disclosed were: the day of the

broadcast was her birthday, she was going on an overseas trip which included Europe

and Disneyland, she had been planning the trip for six months, and her husband's

name was John. In the Authority's view, some of those facts, including Ms Koster's

name, were private facts. It then had to decide whether the disclosure of her name and

other private facts was both highly offensive and objectionable to a reasonable person.

In this case, it concluded that it was not offensive or objectionable to reveal her name,

that she was planning an overseas trip or that it was her birthday, and therefore the

broadcast had not breached privacy principle i). Having decided that, it did not have

to consider the applicability of privacy principles ii) to v).

Dealing Fairly

In addition to breach of privacy, Ms Koster complained that the broadcast, which she

alleged was repeated several times, did not deal with her fairly. She argued that

because the information given about her enabled her to be identified, and the fact that

she was going to be out of the country was made public, there was a potential risk that

her house could be broken into when she was away. She maintained that the

introduction to the item announced that she would be away for seven weeks, a fact

disputed by RNZ, and that it was reasonable to assume, from the information given,

that the departure date was imminent. Referring to RNZ's suggestion that she gave

implied consent to the broadcast of the call, Ms Koster responded that it was only

after she heard the broadcast with the disclosure of the particular information in the

introduction (her full name and the plans for the trip) that she became concerned about

the security implications. She claimed that the introduction on one occasion referred

to the fact that she was departing the following Sunday.

The Authority considered first the points of contention between RNZ and Ms Koster

about the number of times the item was broadcast on 31 August and the content of

those broadcasts. Ms Koster alleged that the item was broadcast several times during

the day on 31 August, while RNZ maintained that there were only two broadcasts of

the full item, at 6.50am and 7.50am. RNZ acknowledged that an excerpt from the tape

might have been used as a trailer but that no additional identifying information such as

the introduction would have been included. It was unable to ascertain whether it had

been used as a trailer as the programme schedule did not contain the detail about

individual trailers.

Ms Koster complained that RNZ had failed to comply with its obligation to retain

tapes of its broadcasts and that it should have done so when she laid her formal

complaint. As a result, the question of how many times the item was broadcast either

in whole or in part remained in contention. The Authority was unable to resolve the

question but notes that the obligation to retain tapes under the Radio Code of

Broadcasting Practice applies only to news, current affairs and talkback, and openline

programmes. Thus the standard did not apply in the present instance.

Ms Koster provided a transcript of the introduction to what she believed was the

7.50am broadcast (but which, it later transpired, was the 6.50am broadcast) which

began:

Finally, Johanna Koster is having a birthday. Johanna and her husband have

been planning a trip for seven weeks.

According to RNZ's transcript of the 7.50am broadcast, the item began:

And finally, Johanna Koster is having a birthday. Now Johanna and her

husband have been looking forward to this for 6 months.

Ms Koster's solicitors later provided the Authority with a tape of the full 6.50am

broadcast, including the introduction, which confirmed its transcript. The Authority

considered that there was sufficient ambiguity in the statement about the duration of

the trip in this transcript that listeners would not have been sure whether the trip had

been planned for seven weeks or was going to last for seven weeks. It accepted

RNZ's explanation that the introductory comments went to air only prior to the

6.50am and 7.50am broadcasts and that other broadcasts during the day, if indeed

there were any, contained edited excerpts from the telephone call only.

The Authority then turned to the substantive complaint under standard R5. It

accepted that in the station culture, practical jokes were popular and, generally, would

be received in good humour. On this occasion, it considered that Ms Koster dealt very

well with the alarming news that her long-awaited trip was being sabotaged by the

travel agent's ineptitude. Her relief when she discovered that it was simply a joke was

palpable, and her reaction to the friend who had set up the joke, perfectly

understandable. In the Authority's view, apart from the swearing, there was nothing

in the call which would have embarrassed or concerned Ms Koster. It believes that

she would have known the call was being recorded and been aware that it would

probably be broadcast.

However, the item the following day included the introductory remarks, which gave

her full name and details about her trip, as well as the recorded call. In the Authority's

view, there was a duty on the broadcaster to warn recipients of such jokes that their

full names would be broadcast by way of introduction and to give them an

opportunity to say whether they wished to be identified. The Authority concluded

that RNZ's failure to do so on this occasion breached its obligation to treat Ms Koster

fairly. It believed Ms Koster should have been warned that her full name would be

used and she should have been given the right to request anonymity. Accordingly it

upheld the complaint that standard R5 was breached.

For the reasons set forth above the Authority upholds the complaint that the

broadcast of a birthday call on 91ZM (Christchurch) by Radio New Zealand Ltd

on 31 August 1995 at 7.50am breached standard R5 of the Radio Code of

Broadcasting Practice because it was unfair to the person named.

The Authority declines to uphold any other aspect of the complaint.

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

Broadcasting Act 1989. It does not intend to do so on this occasion because the

practice of joke calls seems to be an established part of the station culture.

Nevertheless, it is a practice to which there should be more boundaries which

acknowledge the broadcasting standards. As this decision outlines the parameters, the

Authority does not consider an order appropriate.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
19 December 1995

Appendix I

Johanna Koster's Complaint to the Broadcasting Standards Authority - 22

September 1995

Johanna Koster of Christchurch, through her solicitors, complained to the

Broadcasting Standards Authority that a broadcast made by Radio Station 91ZM on

31 August 1995 breached her privacy in contravention of s.4(1)(c) of the Broadcasting

Act 1989.

She reported that two of the station's announcers telephoned her and joked that her

tickets for her forthcoming trip to England had been cancelled. During the

conversation, her name was mentioned and reference was made to the fact that she

would be in England for seven weeks.

Ms Koster's solicitors complained that her privacy had been breached in two ways.

First, she was not asked if the telephone conversation could be broadcast, and

secondly she believed that the fact of her absence for seven weeks should not have

been broadcast. She was concerned about that because so many people knew she was

going to be away, there was a potential for her house to be burgled.

RNZ's Response to the Broadcasting Standards Authority - 20 October 1995

As is its practice, the Authority sought the broadcaster's response to the privacy

complaint. RNZ began by examining the content of the broadcast, pointing out that

there was no mention of how long the trip was to last, nor when it was going to begin.

Further, it noted, there was no mention of Ms Koster's address or telephone number.

It added that there were 11 Costers and 9 Kosters listed in the local telephone book.

According to the two presenters of the programme, the call originated from a

suggestion by one of Ms Koster's friends. It was made on 30 August but not

broadcast until 31 August. During that time, Ms Koster's friend called the station to

find out when the call would be broadcast because everyone in the office, including Ms

Koster, wanted to hear it. The only concern expressed at that time, RNZ reported,

was that Ms Koster had used swear words which the presenters assured her would be

beeped out.

According to RNZ, no other concerns were expressed about the call and it was known

that it would be broadcast the following day.

Turning to the substance of the complaint, RNZ noted that Ms Koster's solicitors

alleged that reference was made to the fact that she was leaving the following Sunday

for a seven week long trip to England. In fact, RNZ pointed out, there was no

reference made to the date of departure or the length of time she would be away.

RNZ argued that Ms Koster's reaction to the call appeared to indicate that she was

familiar with the type of call and that she knew it had been recorded. The fact that an

enquiry was made to ascertain when the call would be broadcast appeared to confirm

this conclusion, according to RNZ.

Turning to the five privacy principles developed by the Authority, RNZ maintained

that none of the first four (i - iv) applied to the broadcast. It argued that the question

of "prying" could not be involved because the information on which the call was based

was volunteered by one of Ms Koster's workmates. In addition, it suggested that Ms

Koster's reaction to the call at the time and the later enquiry regarding when it was to

be broadcast, indicated that she was aware of its purpose and nature. It suggested that

the Authority should apply its fifth privacy principle in this instance.

Further Correspondence

Through her solicitors, in a letter dated 31 October, Ms Koster sought confirmation of

the times at which the telephone call was broadcast on 31 August and details about the

hosts' comments prior to the broadcasts.

That request was referred to RNZ which pointed out in a letter dated 2 November that

the original complaint referred only to a broadcast on the morning of 31 August and

not to any other broadcasts. However, in its view, the issues now raised by the

complainant's solicitors did not affect her original submission or the status of the

broadcast.

It advised that log-tape recordings were kept for only a limited period, noting that the

request by the complainant was well outside the station's tape retention period. On

the basis of information given by staff, RNZ advised:

1. There would have been no more than two broadcasts of the item (6.50am and

7.50am).

2. The same edited audio of the call would have been used for both playings.

Staff could recall no significant differences in their live introduction to the

item.

3. Programme staff could recall no departure from the normal routine of playing

birthday calls at 6.50am and 7.50am.

4. There may have been one, two or no playings of a trailer for the item. It would

have been very brief and would not have referred to any other matters other

than the tape of the conversation.

5. The programme schedules do not record details of individual trailers being

played.

In response to a request from the Authority, RNZ provided a transcript of the

introduction to the item.

Ms Koster's Response to the Authority - 17 November 1995

Ms Koster, through her solicitors refused to accept RNZ's interpretation of her

complaint being concerned with the broadcast of the telephone call on one occasion

only. She maintained that the call was broadcast on numerous occasions throughout

the day.

Referring to RNZ's advice that it no longer had the log tapes for 31 August, Ms

Koster inquired whether those tapes were available when the formal complaint was

laid on 22 September. She considered that RNZ had a duty to retain such tapes once a

complaint had been made.

Ms Koster provided a transcript of a tape recording of what she believed was the

7.50am broadcast. She repeated that the information given enabled her to be identified

and the fact that she was going to be out of the country for 7 weeks was made public.

She argued that because her husband's name was mentioned it would have been easy

to identify her from the telephone book and in addition, that it was reasonable to

assume that she would be leaving for her trip within a few days.

Regarding the telephone call prior to the broadcast inquiring when the item would be

played, Ms Koster advised that it was made by a friend who had overheard the

conversation and was concerned about her swearing. Ms Koster's concern only arose

as a consequence of the information in the call being combined with the detail given in

the introduction. She asserted that at least one broadcast of the call referred to the fact

that she was departing for her trip the following Sunday.

RNZ's Response to the Authority - 25 November 1995

In its detailed response, RNZ contended first that it was entitled to assume the

complaint referred to only one broadcast because the initial letter of complaint referred

to "a broadcast" and furthermore, the identical recorded cartridge would be used for

any further playings throughout the day.

It advised that the full items were broadcast in the "birthday call" slot on two

occasions - at 6.50am and 7.50am. It did not accept Ms Koster's claim that the

complete items were broadcast more than that. It acknowledged that it was possible

an excerpt from the tape was run later in the day as a promotion. That excerpt, it

emphasised, would not have included the live introduction by the announcers. In fact

it was not possible that any part of their introduction went to air except as part of the

6.50am and 7.50am broadcasts.

RNZ advised that after the complaint was laid it ensured that it retained the on-air log

recording from the 7.50am broadcast and the cartridge containing the telephone call. It

wrote:

Signed statements from the two presenters concerned were obtained

immediately confirming that the "cue" material introducing the phone call

cartridge contained on neither occasion any reference to date or day of Ms

Koster's departure, or mention of the trip's proposed duration.

Referring to the allegation that the presenters mentioned the duration of the trip, RNZ

responded:

Of possible significance is that where the tape referred to by [Ms Koster's

solicitors] cites "Voice 1" as saying, "...have been planning a trip for seven

weeks," the 7.50am cue material actually says, "...have been looking forward

to this trip for 6 months. They've been planning their trip to L.A., then on to

Europe." [RNZ] would seriously question whether any experienced

broadcaster would say "planning a trip for seven weeks" (which clearly

indicates the period over which the planning has taken place), instead of

"planning a seven-week trip", which is what would have been said had the

reference been to the proposed duration of the trip.

Regarding the identity of the caller who inquired when the item would be broadcast,

RNZ commented that although her identity was not relevant, it was important to note

that she was a colleague of Ms Koster's and thus confirmed its argument that Ms

Koster was not unaware of the purpose of the broadcast.

Finally, RNZ advised that it was not possible that extra wording could have been

added to the tape which was used for any promotion. It also noted that since it did

not expect that the complaint would expand to include promotions it did not retain the

log tapes for longer than the required time.

Ms Koster's Final Comment -5 December 1995

Ms Koster, through her solicitors, advised that she was able to provide witnesses who

heard the replay of the tape on more than two occasions other than the early morning

of 31 August. Reference was made to having heard replays of birthday calls between

8.30 - 9.00am comprising the introduction and the full telephone call.

She enclosed a tape recording of the broadcast and noted that at the beginning of the

introduction, one of the announcers clearly made reference to the fact that Ms Koster

and her husband have been planning a trip for seven weeks.

Appendix II

Ms Koster's Complaint to Radio New Zealand Ltd - 29 September 1995

Ms Johanna Koster of Christchurch, through her solicitors, complained that the

broadcast of a birthday call in which she was the subject of a joke was an infringement

of her right to be treated fairly and justly. The call was broadcast on 91ZM on more

than one occasion on 31 August 1995.

RNZ's Response to the Complaint - 7 November 1995

RNZ advised that, for the reasons it put forward in its response to the privacy

complaint, it declined to uphold the complaint that the item treated her unfairly and

unjustly.

Ms Koster's Referral to the Authority - 17 November 1995

Ms Koster referred her complaint under standard R5 in the same letter as she

responded on her privacy complaint above. RNZ's response and her final comment

are summarised above also.