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 that the action taken by MediaWorks in response to a breach of the fairness standard during a segment of Jay-Jay, Flynny and Jase Driving You Home was insufficient. The segment featured host Flynny telling a story about an ‘embalmer’ who had embalmed their cat after it passed away. The Authority agreed that the complainant was unfairly treated by the broadcaster in breach of the fairness standard. However, the Authority found the action taken by the broadcaster, which included a direct apology to the complainant, and counselling of the hosts concerned, was proportionate to the breach. The Authority also found that the broadcast was unlikely to cause widespread undue offence or distress and that the complainant’s privacy was not breached as they were not identifiable in the broadcast.

Not Upheld: Fairness (Action Taken), Good Taste and Decency, Privacy

The broadcast

[1]  A segment on Jay-Jay, Flynny and Jase Driving You Home featured host Flynny telling a story about an ‘embalmer’ who embalmed their cat which had passed away. The hosts then talked about taxidermy and skeletons before asking viewers, ‘What strange things have you seen in someone’s house?’

[2]  The segment was broadcast on 18 November 2019 on More FM.

[3]  The Authority has listened to a recording of the broadcast complained about and has read the correspondence listed in the Appendix.

[4]  Given the nature of this complaint, we have granted name suppression to the complainant and have referred to the complainant throughout as ‘HS’.

The complaint

[5]  HS complained that the broadcast breached the fairness, good taste and decency and privacy standards of the Radio Code of Broadcasting Practice. In response to the original complaint, the broadcaster upheld the complaint as a breach of the fairness standard and apologised to the complainant. The broadcaster also counselled the hosts involved. It did not uphold the complaint under the good taste and decency and privacy standards.

[6]  The complainant referred the complaint to us and made the following submissions:

• Flynny used HS’s occupation as an embalmer ‘specifically to draw attention to a segment that he had made based on my personal expression of grief; a memorial table for my recently deceased cat which features the cat’s skeleton.’
• ‘Ominous music was played in the background, and my heartfelt tribute to my best friend was publicly shared and [criticised] without my permission or the permission of anyone who I had shared it with…’
• HS’s occupation was publicly criticised, and their grief was worsened by this traumatic event.
• Private information was broadcast without the complainant’s permission. They were easily identifiable by occupation, gender and location.
• HS was unfairly referenced and unfairly treated. When HS called the station an hour after the broadcast to ask who had contacted them, ‘they lied to me and said someone had txt in, I now know this to be false; my partner's father told a colleague about it, that colleague was friends with ‘Flynny’ who victimized me.’

The broadcaster’s response

[7]  MediaWorks upheld the original complaint under the fairness standard finding:

• It should have been clear to the hosts that this information was personal, and may not have been something the complainant wished to be discussed on the radio.
• The use of ominous backing music and the description of the cat was inconsiderate and inappropriate.
• The complaint to the station ought to have been taken more seriously.

[8]  MediaWorks apologised for the offence the broadcast caused the complainant. It discussed the complainant’s concerns, and the ‘broadcast’s shortcomings’ with More FM’s Content Director who also apologised to the complainant.

[9]  MediaWorks noted the show's producer has no recollection of the call from the complainant or of any discussions with them. 

[10]  MediaWorks did not uphold the complaint under the remaining standards for the following reasons:

• The broadcast contained material that the complainant found personally offensive. However, the good taste and decency standard applies to the audience in general. The broadcast was unlikely to cause widespread undue offence.
• MediaWorks ‘have real doubts’ that HS was identifiable to anyone who did not already know them and who knew about their cat – ie, to anyone new.
• MediaWorks noted that the New Zealand Embalmers’ Association has a large number of members of the same gender as the complainant. Therefore, that information on its own cannot have made the complainant identifiable to the general public.
• The broadcast did not identify where the funeral director was based.

The relevant standards

[11]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. A consideration of what is fair will depend on the nature of the programme.¹ Where programmes deal with distressing circumstances (eg, grief and bereavement) broadcasters should show discretion and sensitivity.²

[12]  The good taste and decency standard (Standard 1) states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.³

[13]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.⁴

Our findings

[14]  The starting point when we determine a complaint about an alleged breach of broadcasting standards is to recognise the importance of the right to freedom of expression. We weigh the value of the broadcast, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused to individuals, or to the audience generally, as a result of the broadcast.

[15]  In this case, the harm alleged to have been caused arises from the treatment and portrayal of the complainant who was in a state of grief and distress over the loss of their cat.

[16]  We recognise that humour and irreverence are important and valued parts of freedom of expression. We also recognise that there are established audience expectations that radio entertainment programmes such as Jay-Jay, Flynny and Jase Driving You Home will at times broadcast edgy content. However, as we discuss below, this must be balanced with the fair treatment of people referred to in the broadcast, particularly when people are dealing with distressing circumstances such as grief and bereavement.

Fairness – Action taken

[17]  Where a broadcaster has upheld a complaint in the first instance and taken action with which the complainant is not happy, it is the Authority’s role to consider whether the action taken by the broadcaster was sufficient to remedy the potential harm.

[18]  In making this assessment we consider the severity of the breach, the seriousness of the conduct, the extent of actual or potential harm that may have arisen, and whether the action taken by the broadcaster appropriately remedied the alleged harm.⁵

[19]  We agree that the fairness standard was breached in this case. While the complainant was not identified in the broadcast, they were ‘referred to’ for the purposes of the standard. The item, which may have been presented as a comedic, light-hearted segment, nevertheless discussed an issue that was personal and sensitive to the grieving complainant and used it as a vehicle to ridicule them. By failing to inform the complainant of their potential participation in the item prior to the broadcast, particularly where they were adversely affected by ridicule, the broadcaster failed to meet the standards expected under the fairness standard.   

[20]  However, in this case we consider that the steps taken to address the breach were appropriate. MediaWorks apologised for the offence the broadcast caused the complainant. They discussed the complainant’s concerns, and the ‘broadcast’s shortcomings’ with More FM’s Content Director who also apologised to the complainant. These steps demonstrated recognition that the station’s conduct fell below standards and reflected effort taken to hold the station to account for the breach. 

[21]  We find this to be a sufficient response to the breach and that any further action would be disproportionate.

[22]  For these reasons, we do not uphold the complaint that there was insufficient action taken in relation to the fairness standard.

Good taste and decency

[23]  When we consider a complaint under this standard, the context of the broadcast is crucial in determining whether current norms of good taste and decency have been maintained.⁶ Relevant contextual factors on this occasion include:

• The segment did not feature any graphic or explicit language.
• The complainant was not identified in the broadcast.
• The hosts of this programme are known for, at times, using provocative and edgy humour.
• There is an audience expectation that Jay-Jay, Flynny and Jase Driving You Home and similar programmes will discuss topics in a comedic and irreverent manner.
• There was low public interest in the story (outside of its unorthodox nature).

[24]  We acknowledge that the segment caused offence to the complainant as HS was the subject of the broadcast. The segment discussed something that was a legitimate source of grief and pain for the complainant and we recognise the hurt that arose for the complainant personally.

[25]  We also acknowledge that some other listeners may have been offended or disturbed by the nature of the discussion. However, considering the audience expectations of the hosts and the programme, alongside the lack of graphic or explicit descriptions, we find the broadcast was unlikely to cause widespread undue offence or distress or to undermine widely shared community standards.

[26]  Therefore, we do not uphold the complaint under the good taste and decency standard.

Privacy

[27]  In deciding whether a breach of privacy has occurred, the Authority considers 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
• whether the disclosure could be considered highly offensive to an objective reasonable person.

[28]  Individuals must be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁷ During the broadcast the host used comments such as ‘the person in question is an embalmer’, ‘they work in embalming, in a funeral home, in a morgue’ and referring to the complainant by their gender.

[29]  We do not however consider that the complainant was identifiable in the broadcast. In contrast with other privacy cases the Authority has dealt with,⁸ we do not consider the broadcast contained sufficient detail to make the complainant identifiable beyond family and close friends. Outside of gender, occupation and the subject matter of the story itself, no additional detail was broadcast about the complainant. Specifically, we note that neither the location of the complainant nor the region they work in were broadcast. On this occasion, we find that mentions of the complainant’s gender, occupation (even if it is unusual) and the story itself were insufficient to make HS identifiable beyond family and close friends.

[30]  As the complainant was not identifiable, the criteria above have not been met and we therefore do not uphold the complaint under the privacy standard.

For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

26 May 2020
         

Appendix

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

1.  HS’s complaint to MediaWorks Radio Ltd – 21 November 2019

2.  MediaWorks’ decision on the complaint – 17 December 2019

3.  HS’s referral to the Authority – 17 December 2019

4.  MediaWorks’ response to the referral – 28 January 2020

5.  Further clarification from MediaWorks – 5 May 2020

¹ Guideline 11a
² Guideline 11i
³ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁴ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁵ Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]
⁶ Guidelines 1a and 1b
⁷ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59
⁸ JN and MediaWorks Radio Ltd, Decision No. 2017-053