BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(c) of the Broadcasting Act 1989
The Edge – anonymous caller revealed that named person had visited a medical clinic – disclosed confidential medical details – allegedly in breach of privacy

Findings
Principle 3 (privacy) – highly offensive disclosure of private facts – upheld

Order
Section 13(1)(d) – payment to the complainant for breach of privacy $5,000
Section 16(1) – payment of costs to the complainant $2,067
Section 16(4) – payment of costs to the Crown $5,000

This headnote does not form part of the decision.

Broadcast

[1]  On the afternoon of Monday 9 October 2006, the hosts on The Edge radio station stated that they had “a bit of inside goss” from an anonymous caller who had previously worked at a medical centre for two weeks. The hosts asked “are you breaking patient confidentiality here or something?” to which the caller laughed. One of the hosts then said “probably, but you don’t care – you were only there for two weeks”.

[2]  The anonymous caller said that a named person, EF, had visited one of the doctors at the centre. The caller then disclosed confidential medical details about EF’s treatment.

Referral to the Authority

[3]  EF lodged a privacy complaint with the Authority under s.8(1)(c) of the Broadcasting Act 1989. The complainant contended that the broadcaster had deliberately released confidential information in “a clear and flagrant breach” of privacy.

[4]  EF asserted that the information in the broadcast was highly personal and the disclosure of that information was unlawful. The complainant maintained that there had been a public disclosure of private facts which would be highly offensive to an objective reasonable person.

[5]  In a further letter, EF asked the Authority to grant name suppression in order to prevent further publication of the private information that was disclosed.

Standards

[6]  Principle 3 (privacy) of the Radio Code of Broadcasting Practice and privacy principle 1 are relevant to the determination of this complaint. They provide:

Principle 3

In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.

Privacy Principle 1   

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

Broadcaster’s Response to the Authority

[7]  CanWest made no objection to the request for name suppression. It considered that the disclosure of the nature of the medical advice EF received was highly offensive, and found that the disclosure of this private fact was a breach of Principle 3 (privacy).

[8]  The broadcaster said that it had taken the breach seriously and had advised the hosts and producers that this sort of information could not be made public. It had also apologised to EF at the earliest opportunity.

Complainant’s Final Comment

[9]  The complainant asserted that CanWest’s response was an attempt to dismiss the serious nature of the breach of privacy, and maintained that the broadcast had involved “the inappropriate and deliberate transmission of salacious gossip”.

[10]  EF also contended that the broadcast had breached Principle 1 (good taste and decency).

Further Response from the Broadcaster

[11]  CanWest denied that it had attempted to dismiss the serious nature of the breach.

Authority's Determination

[12]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Procedural Matter

[13]  The complainant has raised an additional standard – Principle 1 (good taste and decency) – when making a final submission to the Authority. Under the Broadcasting Act 1989, formal complaints about programme standards other than privacy must be made to the broadcaster in the first instance. As the complainant did not make a formal complaint to CanWest alleging a breach of Principle 1, and no such complaint has been referred to the Authority under section 8(1)(a) of the Act, the Authority has no jurisdiction to consider whether Principle 1 was breached.

[14]  Accordingly, the Authority confines its determination to the Principle 3 (privacy) complaint.

Name suppression

[15]  Due to the sensitive and personal nature of the facts revealed in the broadcast, the Authority agrees that it is appropriate that the complainant’s name should be suppressed. For this reason, it has not specified any details about the broadcast which could potentially identify the complainant.

Standard 3 (privacy)

[16]  The broadcast disclosed confidential medical details about the complainant. In the Authority’s view, this amounted to a highly offensive disclosure of private facts in breach of Principle 3. It is evident from the recording of the broadcast that the hosts had prior knowledge of what the caller was going to say, and were aware that the information was confidential. They asked the caller “are you breaking patient confidentiality here or something?” and commented “probably, but you don’t care – you were only there for two weeks”. The Authority considers that the hosts displayed a premeditated and flagrant disregard for the complainant’s rights.

[17]  The Authority also records its view that the tasteless and salacious manner in which the hosts and the caller laughed and joked while discussing the complainant’s medical details exacerbated the effect of this serious breach of EF’s privacy.

[18]  Furthermore, the Authority finds that there was no public interest – meaning legitimate public concern, as opposed to being of general interest or curiosity to the public¹ – in disclosing the private facts about EF. Accordingly it concludes that CanWest breached EF’s privacy in breach of Principle 3.

Bill of Rights

[19]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast of an item by CanWest RadioWorks Ltd on The Edge on Monday 9 October 2006 breached Principle 3 (privacy) of the Radio Code of Broadcasting Practice.

[20]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[21]  The complainant submitted that the Authority should order:

• that The Edge be prevented from broadcasting for 24 hours, during a “survey” period
• in the alternative, an advertising ban for 12 hours
• compensation to the complainant for the breach of privacy at the higher end of the $5,000 limit
• legal costs in the amount of $3,132.47

[22]  In response, CanWest submitted that orders curtailing broadcast or advertising were reserved for the most serious of deliberate or reckless breaches, and it contended that this breach was not in that category. It also argued that any penalty should reflect the fact that the broadcaster accepted responsibility immediately and apologised to the complainant. Lastly, CanWest said that the complainant’s legal costs appeared to be “at the high end” for a “reasonably straightforward” complaint, and in any event, it noted, the fees were incurred by a trust and it would not be appropriate to reimburse those costs.

Authority’s decision on orders

[23]  The Authority has considered the submissions on orders from both parties. It agrees with CanWest that it would not be appropriate to make an order under section 13(1)(b)(i) of the Broadcasting Act 1989 that The Edge should be prevented from broadcasting for 24 hours. The Authority has not previously made an order of this nature, and it finds that the breach on this occasion was not of such magnitude to warrant such a penalty.

[24]  The Authority has, however, given serious consideration to the complainant’s request that an advertising ban be ordered under section 13(1)(b)(ii) of the Act. The Authority has found a serious breach of EF’s privacy, and it is of the view that the nature of the breach – disclosing confidential medical details in a premeditated manner – is such that an advertising ban could appropriately be imposed. However, the Authority declines to make such an order on this occasion because CanWest immediately acknowledged the breach of EF’s privacy and apologised.

[25]  The Authority has previously said that costs to the Crown are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards (see for example Decision No. 2006-058). As it considers that the breach of privacy on this occasion was at the highest end of the scale, the Authority considers that a maximum award of costs to the Crown, in the amount of $5,000, is appropriate.

[26]  Similarly, the Authority makes an order directing CanWest to pay the complainant $5,000 in compensation for the breach of privacy. Having considered previous orders made under section 13(1)(d) of the Act for breaches of privacy, the Authority finds that the maximum amount is warranted on this occasion.

[27]  With respect to legal costs, the Authority disagrees with CanWest that the complainant’s fees were “at the high end”. It also considers it irrelevant that the complainant’s legal fees were paid by a family trust. In the Authority’s view, the complainant was entirely justified in seeking legal advice in this matter and counsel provided helpful submissions to the Authority. In these circumstances, the Authority orders that the complainant be paid 66% of the legal costs incurred, in the amount of $2,067.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(d) of the Act, the Authority orders CanWest RadioWorks Ltd to pay to the complainant $5,000, within one month of the date of this decision, by way of compensation for the breach of privacy.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(1) of the Act, the Authority orders CanWest RadioWorks Ltd to pay to the complainant costs in the amount of $2,067, within one month of the date of this decision.

3. Pursuant to s.16(4) of the Act, the Authority orders CanWest RadioWorks Ltd to pay to the Crown costs in the amount of $5,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
30 May 2007

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1     EF’s privacy referral to the Authority – 16 October 2006

2    CanWest’s response to the referral – 8 February 2007

3    EF’s final comment – 16 February 2007

4    Further response from CanWest – 23 February 2007

5    Submissions on orders from EF – 2 April 2007

6    Submissions on orders from CanWest – 16 April 2007

¹Paragraph 30 of Hosking v Runting PDF317.33 KB [2005] 1 NZLR 1 (CA)