BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Personal remarks were made about a rival broadcaster on Soundwave FM on 27

November 1997 between 11.00pm and midnight. The comments were made by Graham

J Barclay and related to a personnel matter which involved the operator of another

station.

E complained to the Broadcasting Standards Authority under s.8(1)(c) that remarks

made about him were both untrue and a breach of his privacy. He also complained to

the station that the continuation of a personal vendetta over the air was not in the public

interest and breached the standard of good taste and decency.

In its response to E, Soundwave FM acknowledged that the broadcast was

inappropriate, and apologised for broadcasting material which offended him. It advised

that it was making a public apology, on air, three times a day for seven days, and that

measures would be taken to prevent the incident from being repeated. In the response

to the Authority on the privacy issue, the station outlined the background to the matter

and repeated that it was broadcasting an apology.

Dissatisfied with the action taken on the standards matters, E referred that complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaints.

Decision

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

have read the correspondence (which is summarised in the Appendix). On this occasion,

the Authority determines the complaints without a formal hearing.

Disparaging personal comments were made by the station manager of Soundwave FM

about E, a rival broadcaster, on 27 November 1997 between 11.00pm and midnight. The

remarks related to a personnel matter involving E and a work experience employee.

E complained that the remarks were untrue, malicious and were a breach of his privacy.

He said that he regarded it as inappropriate to conduct a personal vendetta over the air

waves as had occurred on this occasion.

Soundwave FM acknowledged that the broadcast was inappropriate, and accepted that a

serious mistake had been made. It apologised to E and advised that it had commenced

broadcasting a public apology on air, three times a day for the next seven days. It

offered E the opportunity to discuss the matters raised in an effort to resolve the issues

between them.

In its determination of the standards aspect of the complaint, the Authority applies

standards R2 and R5 of the Radio Code of Broadcasting Practice. They require

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.

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

       programme.

Dealing first with the issue of decency and good taste, the Authority concludes that the

sustained attack on a named individual, coupled with the offensive language which was

used, constitutes a breach of the standard. Name-calling and personal ridicule are not, in

the Authority's view, consistent with accepted norms of good taste, especially when

continued over a sustained period of time as occurred here.

Next it turns to the issue of fairness. The Authority finds that the comments were

unfair to E, not only because they were not able to be substantiated, but also because he

was given no opportunity to respond. It was clear from the tenor of the remarks that

they were intended to ridicule E, and that is inappropriate behaviour on the part of the

broadcaster.

In addition to complaining about standards breaches, E complained that his privacy was

breached by the broadcast. When it decides on privacy complaints, the Authority

applies the privacy principles enumerated in its Privacy Opinion dated 6 May 1996.

On the facts of this complaint, the Authority considers that Privacy Principle iv) is

relevant. That Principle reads:

iv) The protection of privacy also protects against the disclosure of private

facts to abuse, denigrate or ridicule personally an identifiable person.

This principle is of particular relevance should a broadcaster use the

airwaves to deal with a private dispute. However, the existence of a

prior relationship between the broadcaster and the named individual is

not an essential criterion.

The Authority finds a clear breach of Privacy Principle iv). E was identified and was

subjected to a tirade of abuse which related to a private matter between him and the

station manager at Soundwave FM. It was entirely inappropriate for the matter to be

aired publicly.

The Authority notes that Soundwave FM accepted that the broadcast was

inappropriate and had apologised to E in person, as well as on-air. Without any

consultation with E, it also undertook to broadcast an apology to him three times a day

for seven days. E has advised the Authority that he considered the broadcast apology

to be excessive and that it further exacerbated the breach. The Authority agrees with E

that it was not an appropriate response in the circumstances. When it takes into

account the extent of the breaches and the effect of the unsolicited on-air apology, the

Authority concludes that Soundwave FM has committed a serious transgression of the

Broadcasting Act.

The Authority advised Soundwave FM that it considered that a penalty may be

warranted and drew its attention to its powers under s.13(1)(d) of the Broadcasting Act

1989 to award compensation to a person whose privacy had been breached, and to

s.16(4), as amended in 1996, to order a broadcaster to pay costs to the Crown. It

sought submissions from Soundwave FM on the question of penalty.

In its submission, Soundwave FM advised that it was a very low powered station which

was run as a part-time hobby operation. It had no advertising and received no revenue,

and the expenses associated with the operation were met by those who ran the station.

The Authority takes those matters into account, but considers that nevertheless as a

broadcaster, Soundwave FM is obliged to comply with the requirements of the

Broadcasting Act. The Act is unequivocal: broadcasters are required to maintain

broadcasting standards.

In this case, the breaches were flagrant because the broadcaster used the airwaves to deal

with a personal dispute. The Authority awards compensation to the complainant, in

the amount of $250.00. In addition, it orders costs in the amount of $250.00 to be paid

to the Crown.

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

broadcast on Soundwave FM on 27 November 1997 between 11.00pm and

midnight breached E's privacy. It also upholds the complaint that the subsequent

action taken by the station, having upheld the standards complaint, was

inappropriate.

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

order for costs under s.16(4) of the Broadcasting Act 1989. The Authority makes the

following order:

Order

The Authority orders Graham J. Barclay to pay costs of $250.00 to the Crown and

compensation of $250.00 to E within one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
5 March 199

Appendix I

E's Complaint to Soundwave FM – 1 December 1997

E of Napier complained to Soundwave FM (Napier) about a broadcast on 27 November

1997 between 11.00pm and midnight. He considered statements made by the

programme's host were both defamatory and of malicious intent. In his view, the

remarks amounted to a personal vendetta which was not in the public interest, or in

good taste.

He complained that specific comments about an individual involved with his radio

station (Magic FM) were untrue and a breach of privacy. He said the instance cited was

a matter of confidentiality between himself and the New Zealand Employment Service.

E enclosed a transcript of statements made on the evening of 27 November to

substantiate his complaint.

Soundwave FM's Response to the Formal Complaint – 4 December 1997

Soundwave FM acknowledged that the broadcast was inappropriate, accepting that "a

gross error was done", and that E's description of the broadcast was true.

However, it considered the issue of personal vendettas, referred to by E, was in fact

initiated by him some months previously.

With respect to the employment matter, Soundwave FM stated that it believed its

information was reliable, and that it was not aware that the arrangement with the

Employment Service had expired.

It offered its sincerest apologies to E, and advised that it had commenced broadcasting a

public apology on air, three times a day for the next seven days. As of 1 December, it

advised that it would no longer refer to Magic FM in its programmes.

Finally, it offered E the opportunity to discuss the matter personally in an effort to

resolve the issues between them.

E's Final Comment – 14 December 1997

E considered that Soundwave FM was attempting to cloud the real issues. He rejected

the station's claim that he had initiated the problems between the two, noting that since

Soundwave FM's station manager had ceased involvement with Magic FM (E's

station), there had been no communication between the two men, and no comment had

been made on Magic FM about Soundwave's station manager. On the contrary, he

claimed, disparaging remarks had been made on Soundwave FM about Magic FM.

E provided the background to the relationship of Soundwave FM's station manager

with his station, and related the facts concerning the work experience contract which

was the subject of the broadcast.

E considered the station's response to the complaint was procedurally incorrect and

inappropriate, given the nature of the complaint. He noted that an apology was being

broadcast three times a day for seven days, and wrote:

Bearing in mind that the complaint dealt with matters of privacy and personal

dispute I consider that this action was not only excessive but also served to

highlight an incident which could have been better dealt with in a more modest

manner. I believe I should have been given an opportunity to decide whether a

public apology was the most suitable action to take and to be free to have an

input into any broadcast relating to this issue.

E referred to the Authority's Privacy Principles, and suggested that Principle iv) was

relevant because it dealt with the circumstances where the airwaves were used to deal

with a private dispute. He considered that the principle was relevant in this case.

Further Correspondence

Soundwave FM responded to E's final comment in a letter dated 29 December 1997 and

a fax dated 4 January 1998.

The station manager clarified and corrected some points made by E, regarding his

previous association with him at Magic FM. He also disputed E's version of events

concerning his former employee's call to Soundwave FM.

In conclusion, Soundwave FM advised that it did not intend to become involved in any

matters outside the original complaint. It noted that it had admitted that its broadcast

was inappropriate, and had attempted to repair the damage, if any, caused.

Soundwave FM provided a statement from the former employee of E which described

the events surrounding his dismissal from the station.

When asked by the Authority to provide submissions on the question of penalty,

Soundwave FM responded in a letter dated 9 February 1998. It pointed out that the

station was a very low-powered one, as permitted under the radio regulations. It

received no income from advertising, as it did not carry any advertisements. The station

was purely a hobby-based operation, staffed on a voluntary basis, with all expenses

being met by the staff from their respective unemployment benefits.

Soundwave FM advised that it had no assets, and was not covered by any insurance,

and so was not in a position to pay any costs. It noted that it had apologised to E on

more than one occasion and had undertaken not to repeat any offence in the future. It

therefore asked that a minimum penalty be considered.

Appendix II

E's Complaint to the Broadcasting Standards Authority – 2 December 1997

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

Broadcasting Act 1989 that his privacy was breached by a broadcast on Soundwave FM

on 27 November 1997 between 11.00pm and midnight.

The broadcast referred to an arrangement which had been organised between the New

Zealand Employment Service and himself whereby a young person was able to gain

work experience by working at his station Magic FM. For reasons which were

confidential to the NZ Employment Service and himself, the arrangement was

terminated.

E considered it a breach of privacy for the matter to be discussed on air by a rival

station, and considered that the fact that the truth was misrepresented only served to

aggravate the situation.

E provided a tape of the evening's programme.

Soundwave FM's Response to the Broadcasting Standards Authority – 5

December 1997

Soundwave FM noted first that it had already responded to E directly and enclosed a

copy of its letter to him.

With respect to the privacy issue, it advised that it could not make full comment as it

did not have a complete transcript or recording of the incident. It added that it had been

having problems with E since its station went to air in October.

Soundwave FM then explained the background to the on-air comments, which related to

the termination of the employment of the young person on work experience at Magic

FM.

It concluded by noting that it was broadcasting an apology to E on air three times a day

for seven days. It offered an assurance that the incident would not be repeated.

E's Final Comment – 14 December 1997

E's final comment is summarised in Appendix I.