BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

A radio station announcer, claiming he was doing a survey on STDs, telephoned a woman and asked a number of personal and intimate questions. The call was broadcast live on The Edge on 30 November 1998 at about 4.00pm.

J, the woman who received the call, had identified herself using her first name and employer’s name. She complained to the station that the call was a serious invasion of her privacy as she was never told that the caller was from a radio station, or that it was being broadcast live. J said the comments ranged from being personal to obscene, and cited some examples.

When the matter was referred to the station initially, J received an apology both from the station manager and the announcer. In its response to the Authority on the privacy complaint, the station repeated its apologies and offered to make a donation to a charity of J’s choice and to provide J’s employer with advertising to the value of $2000. It emphasised that the announcer had not attempted to hide his identity or the fact that he was calling from a radio station. It acknowledged however that the caller might not have known that The Edge was a radio station. No tape was available, it advised, as there had been technical problems that day.

Dissatisfied with the action taken by the broadcaster on the standards complaint, J referred the 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 that J’s privacy was breached and that the action taken by the station was insufficient. It orders The Radioworks to pay compensation of $1000 to J, $750 in costs to J, and $1000 in costs to the Crown.

Decision

The members of the Authority have read the correspondence which is listed in the Appendix. No tape of the programme was provided. On this occasion, the Authority determines the complaint without a formal hearing.

A station announcer for The Edge telephoned a woman at her place of work and told her he was conducting a survey on STDs. When she answered the phone, J gave her first name and her employer’s name. The announcer proceeded to ask a number of questions which referred to genitals and human sexuality, ostensibly relating to the survey he was conducting. The entire call was broadcast live on The Edge on 30 November 1998 at about 4.00pm.

J contacted the station immediately she became aware that the call was from a radio station and had been broadcast. She complained that the announcer’s behaviour was unprofessional and unethical and had caused her extreme distress and humiliation. The topics discussed, she said, were extremely personal and verged on being obscene. They made her feel very uncomfortable and quite distressed. She said that she had wondered whether someone was playing a joke on her and that she was "absolutely horrified" when she was phoned by a family member and told that the telephone call had been broadcast live.

When it responded, the station advised that the announcer had been reminded that he should inform people that he was calling from a radio station when he made such calls. It advised that he would write a personal apology to J. The station apologised for the distress caused. In a second letter, the station’s General Manager wrote to J acknowledging that the call was offensive and unfair, and that it was unfair that the announcer did not say that The Edge was a radio station. The General Manager advised that the announcer had received a strong verbal warning over the matter and gave an assurance that such an incident would not take place again. The station offered to make a donation of $300 to a charity of J’s choice.

J then forwarded her complaint to the Broadcasting Standards Authority. She emphasised the extreme distress the incident had caused her, particularly as her job entailed dealing with members of the public who could well have heard the broadcast.

When the matter was referred to the station for its response, it reiterated its regrets, adding that it was concerned about every aspect of the call. In addition to making an offer to make a donation to a charity of J’s choice, it offered $2000 of advertising to J’s employer, if the Authority considered that appropriate.

In relation to the privacy issue, the station emphasised that the announcer never intended to conceal who he was or the fact that he was from The Edge. It advised that due to technical problems with its air check machine, it had no copy of the recording on air. It apologised again to J.

In her final comment, J asked the Authority to take into account the fact that the station had apparently had a technical problem with its tape system at the time of her call, and she questioned whether that could really have been the case. She again reiterated the distress the incident had caused.

The Authority’s Findings

The Authority deals with this complaint in two parts. First it deals with the standards and privacy breaches, and secondly with the action taken by the broadcaster in relation to those breaches.

No standards were referred to in the complaint. The Authority considers that standards R2 and R5 of the Radio Code of Broadcasting Practice are apposite. 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.

Turning first to the good taste standard, the Authority concludes that a clear breach occurred, not only because of the content of the call, said by the complainant, and not disputed by the broadcaster, to include intimate and personal questions and to make reference to genitals and sexual practices, but also because the complainant was an unwitting participant in a prank call which was broadcast live without her knowledge or consent. The Authority finds the breach to be a serious one both because the content was offensive and because of the distress the call caused the complainant.

Standard R5 was also breached, the Authority concludes. It finds that the complainant was not treated fairly because she was not advised that the call was from a radio station, was not told that her comments were being broadcast live, and because of the sensitive and personal nature of the matters which she was asked to discuss. She was gravely misled about the purpose of the call and a falsehood was used to trick her into participating. The Authority concludes that this breach too was a serious one.

Next the Authority turns to the complaint that J’s privacy was breached by the call. When it deals with privacy complaints, the Authority applies its Privacy Principles. It considers that Principles (i), (iv), (v) and (vi) are apposite. They read:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

(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 protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

The Authority accepts that J was recognised by listeners to the station. She identified herself by her first name and the name of her employer. The Authority finds that Principle (i) was breached because J was tricked into disclosing intimate and personal private facts in a public forum. It also finds that Principles (iv) and (v) were breached because J was humiliated and embarrassed for the entertainment of the announcer and his listeners, and because her name and that of her employer were disclosed. No public interest defence was applicable.

The Authority notes that the station offered J an apology and that the announcer responsible also apologised, first for not identifying himself as stating that he was from a radio station, and secondly for the content of the call. In a further letter to J, the station manager offered to make a donation of $300 to the charity of her choice, and advised that the announcer had received a verbal warning over the matter. Finally the station advised that it was prepared to offer J’s employer an advertising schedule to the value of $2000. It reported that due to technical problems with its air check machine, it was unable to provide a tape of the exchange.

The Authority next considers the adequacy of the station’s response. It finds the response deficient on a number of counts.

First the Authority notes the failure of the station to retain a tape of the broadcast and its excuse that the air check equipment failed shortly prior to the broadcast. It shares J’s scepticism. Standard R35 of the Radio Code reads:

R35  For a period of 35 days after broadcast, radio stations shall hold a recording of all talkback and open line programmes and a copy or tape of news and current affairs items.

The Authority is disturbed that it does not have a copy of the tape, but in the circumstances it accepts the complainant’s undisputed account of what transpired. It notes that regulations are shortly to be drafted which will enable it to penalise broadcasters who do not comply with this provision.

Next the Authority turns to the station’s response to the complaint. It views with some concern its offer first of a donation to a charity of J’s choice, and secondly of free advertising for J’s employer. The Authority considers that while these offers might have been made in good faith, in the circumstances they were totally inappropriate and, in its view, demonstrate that the broadcaster has failed to recognise the seriousness of the breach of broadcasting standards, and the harm caused to J herself.

The Authority also views with some concern the station’s apparent misapprehension that the gravamen of the breach was the announcer’s failure to advise that he was from a radio station when he made the call. The Authority emphasises that that was but one factor in the breach. It was exacerbated by the subject matter of the call, the fact that J identified herself and her place of work when she answered the telephone, and that the call was broadcast live without her knowledge or permission. It is not sufficient, as the station seems to suggest, for announcers simply to ensure that they identify themselves as being from a radio station when they make unsolicited calls for broadcast.

For the reasons set forth above, the Authority upholds the complaint that the action taken by The Edge was insufficient when it upheld the complaint that a broadcast on 30 November 1998 at about 4.00pm breached broadcasting standards. It also upholds the complaint that J’s privacy was breached.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on the question of penalty with respect to the insufficiency of the action taken and compensation for the breach of J’s privacy.

In its consideration of penalty in this complaint, the Authority takes into account the seriousness of the breaches and the inadequacy of the station’s response.

The Authority considers that an order of compensation to J is appropriate as she was humiliated and distressed for the entertainment of the announcer and his listeners. Having given her name and that of her employer when she answered the telephone, she was recognised by listeners, and her privacy was breached. The Authority also considers that J is entitled to compensation to offset the costs incurred relating to the matter. In addition, the Authority concludes that an order of costs to the Crown is appropriate given the seriousness of the breaches, including the offensive content of the call, the station’s failure to recognise that J’s privacy was breached, the fact that no tape of the call existed, and the offers of compensation were not personal to J. The Authority makes the following order:

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders The Radioworks to pay, within one month of the date of this decision, compensation to J in the sum of $1000 for the breach of her privacy. The Authority further orders The Radioworks under s.16(1) and s.16(4) of the Act to pay, within one month of the date of this decision, the sum of $750 by way of costs to J and the sum of $1000 by way of costs to the Crown.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 March 1999

Appendix

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

The Radioworks’ Response to J’s telephone call – 30 November 1998

J’s Complaint to The Edge – 1 December 1998

The announcer’s apology to J – 1 December 1998

The Radioworks’ Response to the Formal Complaint – 2 December 1998

J’s Referral to the Broadcasting Standards Authority – 3 December 1998

The Radioworks’ Response to the Authority – 16 December 1998

J’s Final Comment – 7 January 1999

J’s Submission on Penalty – 26 February 1999

The Radioworks’ Submission on Penalty – 24 February 1999