BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under sections 8(1)(a) and 8(1)(c) of the Broadcasting Act 1989
Newstalk ZB – item on the sale of shares by the New Plymouth District Council – broadcast of complainant’s recorded comments regarding the issue – allegedly unfair – alleged breach of privacy

Findings
Principle 3 (privacy) – no private facts disclosed – not upheld

Principle 5 (fairness) – complainant should have been aware he was being recorded – spirit of Guideline 5a observed – not upheld

This headnote does not form part of the decision.

Background

[1] On 8 September 2004 the complainant faxed to Newstalk ZB a copy of a letter he had sent to various official institutions, including the office of the Auditor-General. The letter included allegations by Mr Gibbs that a district council executive stood to benefit financially from the sale of shares by the New Plymouth District Council.

[2] Mr Gibbs received a phone call that evening from a journalist from Newstalk ZB, and discussed the contents of the letter with him.

[3] The broadcast of Mr Gibbs’ comments from that conversation resulted in a financial settlement between the complainant and the executive concerned. Newstalk ZB also later broadcast an apology to the executive.

Broadcast

[4] On 9 September 2004 at around 6.30pm an item on Newstalk ZB discussed the sale of shares held by the New Plymouth District Council. The announcer said that the issue had taken a new turn, with accusations levelled at a council executive regarding his role in the sell-off.

[5] The announcer went on to say that Victor Gibbs, a “Tongapurutu resident and council candidate”, had written to the Auditor-General, the Ombudsman, the Overseas Investment Commission and New Zealand First leader Winston Peters, alleging that the executive stood to benefit financially from the sale of the shares.

[6] Extracts from a conversation with Victor Gibbs were then played. He was heard to say:

We believe that [the executive] is getting a kick back on this deal – whether it’s legal or not, it’s bloody immoral.

It’s a fairly usual part of a lot of executives’ contracts. A few days ago he called Mr Cullen evil. Who’s the evil one? I believe he’s the evil one.

[7] The announcer went on to say that the executive had denied the allegations. A quote from the executive was played stating that his contract was being reviewed and he was confident that a representative for the Auditor-General would confirm that he would not receive any incentive payments.

Complaints

[8] Victor Gibbs complained to the Authority that the item breached his privacy. He also complained that the broadcast breached the broadcasting standard relating to fairness.

[9] The Authority accepted the direct referral of the privacy complaint under s.8(1)(c) of the Broadcasting Act 1989. The Authority advised the complainant that the broadcaster would respond directly to him on matters other than privacy.

[10] In his formal complaint to The Radio Network (TRN), Mr Gibbs referred to his conversation with the journalist from Newstalk ZB and said that “at no time during that phone call was I aware that our conversation was being recorded”.

[11] The complainant noted that Newstalk ZB had subsequently apologised to the executive for broadcasting the comments. He alleged that the broadcaster failed in its responsibility to maintain the standards of privacy and fairness.

Principles

[12] Principles 3 and 5 of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint:

Principle 3

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

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Guidelines

5a  No telephone conversation will be recorded or broadcast for the purpose of news, current affairs or any other programme, unless the recipient has been advised that it is being recorded for possible broadcast, or is aware that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.

5b  Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.

5c  Programmes shall not be presented in such a way as to cause panic, or unwarranted alarm or undue distress.

Broadcaster's Response to the Authority – Privacy Complaint

[13] The Radio Network Ltd (TRN) stated that Mr Gibbs was clearly intent on having his view broadcast. This could be seen from the fact that he had initially contacted the radio station with his fax and then allowed the follow up interview to proceed. In addition, TRN said, he had failed at any stage to say it was “off the record”.

[14] TRN stated that the complainant was familiar with this practice as he had been interviewed by the radio station on a “regular basis”. It contended that there was no breach of privacy.

Broadcaster's Response to the Complainant – Fairness Complaint

[15] In considering Mr Gibbs’ complaint that the broadcast was unfair, TRN noted that the complainant had faxed a letter to their newsroom outlining his accusations against the executive. TRN categorised this as “an open invitation for our newsroom to contact you for further details” and that Mr Gibbs had “a clear intention” to publicise the letter further.

[16] The broadcaster stated that while “it is possible that the words ‘I’m recording now’ were not used, the journalist is in no doubt that you knew the interview was taking place”. In fact, TRN said, when the complainant had begun speaking on another topic the journalist had asked him to “stick to the interview at hand”.

[17] TRN further noted that at no stage during the conversation had Mr Gibbs said his comments were “off the record”. In addition, the complainant did not contact the broadcaster with any concerns until two weeks following the broadcast. TRN said that “this appeared to be as a result of [the executive]’s action against your comments”.

[18] The broadcaster asserted that the journalist had no doubt that Mr Gibbs had an understanding that his comments were being recorded for later playing. TRN contended that the complainant had dealt with the radio station “dozens of times” where his comments were recorded and broadcast.

[19] Referring to Guideline 5b, the broadcaster noted that the complainant had not provided any details about how the interview extracts may have been a distortion. In addition, TRN did not believe that Guideline 5c applied to this complaint and accordingly declined to uphold the complaint under Principle 5 (fairness).

Referral to the Authority - Fairness Complaint

[20] Dissatisfied with the broadcaster’s response, Mr Gibbs referred his complaint regarding Principle 5 (fairness) to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He reiterated that he had not been advised by the journalist that their conversation was being recorded for possible broadcast. He had been “surprised and alarmed” that excerpts from the conversation had been broadcast.

[21] The complainant said that in previous dealings with the radio station he had always dealt with another journalist, who would say “Victor I am going to ask you some questions for your comment to be broadcast”. On this occasion, he said, the journalist had introduced himself as being new to Newstalk ZB and from Wellington. The complainant maintained that he had not been advised that his comments were being recorded for possible broadcast.

[22] Mr Gibbs further noted that he had told the journalist he had not seen the executive’s contract. He said the broadcast had caused him “panic, unwarranted alarm and undue distress”, and provided details of the costs incurred by him as a result of the subsequent defamation action by the executive.

Broadcaster’s Response to the Authority – Fairness Complaint

[23] Further to the complaint about Principle 5 (fairness), TRN stated that Mr Gibbs’ recollection of his conversation with the journalist appeared “sketchy and hazy”. The journalist was not new to Newstalk ZB, and was not from Wellington, and so had said neither of these things to the complainant.

[24] TRN stated that the complainant had faxed Newstalk ZB his letter to the Auditor-General “clearly with a view to gain publicity for his actions”. Mr Gibbs, it said, had freely consented to the phone interview.

[25] The broadcaster maintained that Mr Gibbs had not contacted the station “to complain or express surprise at the story and his strong ‘sound bite’”, despite having said that he was alarmed by the broadcast. TRN noted that the complainant only contacted Newstalk ZB two weeks later, and after legal dealings with the lawyer of the executive.

[26] TRN went on to say that Mr Gibbs had previously made submissions to the New Plymouth District Council that “typically used strong and emotive language, including attacks on [the executive]”. The complainant had also been the source of several news stories for both radio and the local paper, it said.

[27] The broadcaster said Mr Gibbs has had “extensive experience with the news media and has used it successfully to further his causes”. TRN added that it had:

…no doubt of the complainant’s intentions to have his ‘interview’ with [the journalist] recorded and subsequently broadcast.

His extensive and long standing dealings with the media and his lack of reaction after the broadcast point to the fact that he achieved exactly as he set out to achieve – that is, gain coverage and publicity for his letter and comments to the Auditor-General.

Complainant’s Final Comment – Fairness Complaint

[28] In his final comment on the fairness complaint, Mr Gibbs referred to the broadcaster’s response to the Authority. He maintained that his recollection of the conversation with the journalist was accurate.

[29] The complainant stated that he had never intended to gain publicity from his actions, and that he had told the journalist he had not seen the executive’s contract. He further emphasised that he was not aware the conversation was an “interview” and he was never informed that it was being recorded for broadcast.

[30] Mr Gibbs said he did not react immediately to the broadcast because he thought “the damage had already been done”, and he was not aware of the Broadcasting Standards Authority regulations until after this time. He stated that:

The fact that Newstalk ZB broadcast an apology is evidence that the item should not have been broadcast.

[31] The complainant said that his involvement with radio and the local paper related to issues surrounding a specific decision made by the New Plymouth District Council (NPDC). Referring to the broadcaster’s letter and suggesting there might be “collusion and an agenda here”, he said:

Accusations of lengthy submissions to NPDC using strong emotive language including attacks on [the executive] I find disturbing.

[32] Mr Gibbs repeated that he had no knowledge that the conversation was being recorded for broadcast, and that on previous occasions he had always been informed when recording was going to take place.

[33] In conclusion, the complainant said that it was the broadcaster’s decision to broadcast the item, and their “responsibility is evidenced by their broadcast apology” to the executive. Mr Gibbs said he had incurred costs as a result of the matter, and suffered “extreme stress” for which he expected to receive compensation.

Complainant’s Final Comment – Privacy Complaint

[34] Mr Gibbs also made a final submission with regard to his privacy complaint. He argued that by releasing the contents of his letter to the Auditor-General, and his name, the broadcaster had breached his privacy. This had caused him to be “liable for legal action and damages”.

[35] In addition, the complainant alleged that his right to privacy had been breached by the broadcaster recording a conversation without his knowledge.

Further Information

[36] Faced with conflicting accounts as to the conversation between Mr Gibbs and the Newstalk ZB journalist, the Authority asked each party to provide an affidavit outlining their version of events.

[37] Mr Gibbs maintained that the journalist did not indicate that he was recording, so he had taken the view that the conversation was not for broadcast. The journalist accepted that it was possible he did not say “I am recording now”, but was firmly of the opinion that the complainant knew he was being interviewed as opposed to having an “off the record” conversation.

Authority's Determination

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

[39] The complainant has alleged that the broadcast was unfair to him, and that it constituted a breach of his privacy.

Privacy

[40] Referring to the Privacy Principles, the Authority finds Privacy Principle (i) to be the only relevant principle on this occasion. It requires that, for a breach of privacy to be found, there must have been a disclosure of private facts which are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

[41] The Authority does not consider that there was a disclosure of private facts in the broadcast. The broadcast disclosed Mr Gibbs’ view that the executive was receiving a bonus payment from the sale of PowerCo shares. The fact that Mr Gibbs held that opinion was not private, because he had sent a fax containing the allegations to a number of official organisations and to the broadcaster.

[42] The Authority finds that Mr Gibbs invited a public conversation about the issue when he sent his fax to the radio station. When telephoned, he was aware that he was speaking to a reporter and, regardless of whether he knew he was being recorded, the complainant must have known that the conversation was for the public record. Mr Gibbs has never claimed that he told the reporter his comments were “off the record”. These matters reinforce the Authority’s view that Mr Gibbs’ opinion in this regard was not a private fact.

[43] Accordingly, the Authority finds that there was no breach of the complainant’s privacy on this occasion.

Fairness

[44] Mr Gibbs has also contended that the broadcast was unfair to him and therefore in breach of Principle 5 (fairness). The Authority notes that his main argument revolves around Guideline 5a, with the allegation that he was not advised that his conversation with the journalist was being recorded for possible broadcast.

[45] The complainant and the journalist have both maintained their accounts of the conversation and provided affidavits to the Authority. Mr Gibbs asserted that he was not explicitly told that he was being recorded, and the journalist has accepted that it was possible he did not use the exact words “I am recording now”. However, bearing in mind that the discussion occurred as a result of the complainant’s fax to the radio station, the Authority must conclude that Mr Gibbs was aware it was an interview, and not merely a conversation.

[46] Mr Gibbs put his opinions in the public arena by faxing them to the radio station, and he was aware that he was speaking to a journalist as a result of that fax. In addition, the Authority notes that he has acknowledged dealing with another journalist from the radio station on a number of occasions and, in this respect, he was not a stranger to interacting with the media.

[47] In all the circumstances, the Authority finds that the spirit of Guideline 5a was observed on this occasion. While the journalist may not have used the exact words “I am recording now”, the Authority is of the view that a reasonable person in the complainant’s position would have been aware that his comments were being recorded for possible broadcast. Accordingly, the Authority concludes that there was no breach of the fairness standard on this occasion.

[48] As a further note, the Authority observes that Mr Gibbs has placed great importance on the fact that TRN broadcast a public apology to the executive. The complainant believes that this is evidence that TRN should have not broadcast the material, and that this strengthens his complaint. The Authority notes that the fact that TRN chose to broadcast an apology to the executive concerned is not relevant in assessing whether it breached broadcasting standards in its dealings with Mr Gibbs.

Name Suppression

[49] The Authority observes that the complainant has requested name suppression in this case. The Authority may be sympathetic to requests for name suppression when a complaint involves an alleged breach of the complainant’s privacy.

[50] However, the Authority has not found any breach of the complainant’s privacy on this occasion. Further, it notes that Mr Gibbs publicised his views about the executive by faxing various official institutions and speaking to a journalist. Under these circumstances, the Authority sees no reason to suppress the complainant’s name. The Authority declines the complainant’s request.

For the above reasons the complaint is not upheld.

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 March 2005

Appendix

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

1. Victor Gibbs’ formal complaint – 5 October 2004
2. TRN’s response to the privacy complaint and its decision on the fairness complaint – 8 October 2004
3. Mr Gibbs’ referral to the Authority of the fairness complaint – 12 October 2004
4. TRN’s response to the Authority – 21 October 2004
5. Mr Gibbs’ final comment on the fairness complaint – 2 November 2004
6. Mr Gibbs’ final comment on the privacy complaint – 11 November 2004
7. TRN journalist’s affidavit re interview – 23 February 2005
8. Mr Gibbs’ affidavit re interview – 24 February 2005