BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has not upheld a complaint about a broadcast of Punjabi talkback programme, Sikh Patshahi, in which a caller to the programme referred to the complainant by name and attempted to speak to the host about them. While the complainant was clearly identified, the Authority found no private information or material was disclosed during the broadcast, by either the caller or the host to the programme, over which the complainant had a reasonable expectation of privacy. The host took proportionate steps during the segment to steer the conversation away from the complainant’s specific circumstances and towards the general topic of discussion, which was Sikh marriage and divorce, and emphasised throughout the segment that the caller could not speak about named individuals without allowing them an opportunity to respond. In these circumstances, the Authority found that the potential harm was mitigated and its intervention in upholding the complaint would represent an unreasonable and unjustified limit on the right to freedom of expression.

Not Upheld: Privacy

The broadcast and background

[1]  On 9 May 2018, Radio Virsa broadcast Punjabi talkback programme, Sikh Patshahi.

[2]  As this programme was broadcast in Punjabi, we sought an independent translation and transcription of the relevant segment. We were also provided with an independent analysis of the translation. Both of these documents were provided to the parties for their information and for comment.

[3]  According to the translation and analysis we have been provided, the topic of discussion during this segment of Sikh Patshahi was Punjabi marriage and divorce and the Sikh community’s compliance with Sikh religious practices. It appears that listeners of the programme were invited to call in to discuss this topic on air.

[4]  A listener called in to the programme and attempted to discuss the complainant’s ‘socio-religious conduct’. The transcript provided to us records that the complainant was named four times by this caller during the broadcast.

[5]  As part of this segment and in response, the host appears to speak generally about those who have made it their ‘profession’ to marry individuals so that they can get permanent residency in New Zealand, asking the caller what happens to the code of ‘socio-religious conduct’ in that case.¹

[6]  According to the translation, the caller then repeatedly attempts to discuss the complainant’s specific personal circumstances, but the host appears to request on each occasion that the caller does not discuss specific individuals.

[7]  The host further explains that only the people involved can explain themselves, saying: ‘only two of them may claim by calling upon phone, on-air, that they love a lot’, and that the caller should ‘wait for some time’ and ‘we should give them an occasion to tell their version’.

[8]  Given the personal nature of this complaint, we have granted name suppression to the complainant and in this decision refer to them as ‘FG’.

The complaint and the broadcaster’s response

[9]   FG complained directly to the Authority that this broadcast breached the privacy standard of the Radio Code of Broadcasting Practice, for the following reasons:

• FG was referred to by name throughout the broadcast and the host implied that they had been married in New Zealand in order to claim permanent residency. The host was well-known to the complainant’s family and was aware of their marriage and divorce.
• The purpose of the discussion was to discredit FG and to warn listeners that if they disagreed with the host, he would humiliate and lie about them on air.

[10]  Radio Virsa responded that this broadcast was not in breach of the privacy standard, as the host did not name the complainant or discuss their marriage or divorce. The host simply received a call from a listener and discussed the topic he had introduced.

The standard and relevant guidelines

[11]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual.

[12]  In deciding whether the standard has been breached, we consider three criteria:

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable;
• whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy; and
• whether the disclosure could be considered highly offensive to an objective reasonable person.²

Our findings

[13]  When we make a decision on a complaint that a broadcast has breached broadcasting standards, we weigh the important right to freedom of expression against the level of actual or potential harm that might be caused by the broadcast. Here, the complainant has argued that the broadcast caused harm because they were identified and their personal circumstances were discussed on air.

[14]  We accept that the complainant was identified by the caller during this broadcast. However, for the reasons set out below, we do not consider that any private information or material was disclosed, over which the complainant had a reasonable expectation of privacy. We also recognise that in this case the broadcaster took reasonable steps to limit any reference by the caller to the individual and their personal situation. In these circumstances, the harm alleged to have been caused by the complainant does not justify our intervention in upholding the complaint, and we set out our reasons for this finding below.

Was the complainant identifiable?

[15]  First, we consider whether the complainant was identifiable, beyond family and close friends who might reasonably be expected to know about the matter dealt with in the broadcast.³

[16]  The complainant was named in full and likely to be identifiable in this broadcast, particularly given they are a member of the relatively small Sikh community in New Zealand, to which this broadcast is targeted.

Was private information or material disclosed, over which the complainant had a reasonable expectation of privacy?

[17]  As we have noted above at paragraph [3], the translator has explained that the topic of discussion during this segment of Sikh Patshahi was issues around Punjabi marriage and divorce, and compliance with Sikh religious practices. Sikh Patshahi is a talkback programme, with listeners invited to call in to discuss the issues raised.

[18]  The Authority has previously acknowledged the challenges that can face broadcasters in managing live content, particularly in talkback and radio where spontaneous comments from callers or third parties may inadvertently breach standards.⁴ It is the broadcaster’s responsibility to ensure that broadcasting standards are maintained, and to be alert to what third parties might say during a broadcast.⁵

[19]  In this particular case, it was the caller to the programme who named the complainant and attempted to discuss them specifically in the context of the general topic. In response, the host attempted to direct the conversation back to the topic of discussion, referring generally to individuals who married couples for permanent residency. As noted in the translator’s analysis provided to us, ‘the host... turns his talk towards a generalised trend of the people of Punjab’, rather than engaging in any discussion about the complainant specifically. He consistently emphasised throughout the segment that the caller cannot speak about the complainant specifically and that people should be given an opportunity to comment or respond.

[20]  It does not appear that the complainant’s marriage or divorce were explicitly discussed at any point during the broadcast, either by the host or the caller. Given the complainant’s name was raised in the context of the discussion, we acknowledge that some listeners might have inferred that the host’s general statement about marriage and permanent residency could apply to the complainant. However, we do not consider that this potential inference amounts to private information over which the complainant had a reasonable expectation of privacy.

[21]  Our view is that the host took proportionate steps, in a challenging talkback environment, to steer the conversation away from the complainant’s specific circumstances and towards the general topic of discussion. He also emphasised throughout the segment that the caller could not speak about individuals without allowing them the opportunity to have their say.

[22]  It will not always be the case that naming an individual during a broadcast will result in a breach of privacy.⁶ In this case, while the complainant was clearly identified, we do not consider that any private information or material was disclosed during the segment over which FG could have a reasonable expectation of privacy. Having concluded that no private information or material was disclosed, there is no need to consider the third factor (whether the disclosure could be considered highly offensive to an objective reasonable person).

[23]  In these circumstances, our intervention in upholding the complaint would represent an unreasonable and unjustified limit on the right to freedom of expression.

Name suppression

[24]  As we have noted above, due to the nature and circumstances of this complaint, we have suppressed the complainant’s name and other identifying details in our decision.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings
Chair
28 January 2019

Appendix

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

1      Translation of Sikh Patshahi, broadcast 9 May 2018 – Translation Service, Department of Internal Affairs
2      FG’s direct privacy complaint – 29 May 2018
3      Radio Virsa’s initial comments on the broadcast segment – 25 September 2018
4      FG’s comments on the translation – 27 November 2018
5      Radio Virsa’s confirmation of no further comment – 29 November 2018

¹ This issue has been reported recently in New Zealand media, for example: The Big Scam: 'Marriages for sale' in alleged visa rort (Stuff, 26 October 2018) 

² Guidelines 10a and 10b

³ Guidance: Privacy, 2.1, Broadcasting Standards in New Zealand Codebook, page 59

⁴  See, for example: Parlane and MediaWorks Radio Ltd, Decision No. 2018-001 at [10]; and LN and MediaWorks Radio Ltd, Decision No. 2016-016 at [21]

⁵  LN and MediaWorks Radio Ltd, above, at [21]

⁶ See, for example: Supreme Sikh Society & Others and Planet FM, Decision No. 2018-040 at [31]