BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
89.8 ZM – "spot the difference" competition – complainant’s incorrect entry read – complainant identified – breach of privacy

Findings
Privacy – privacy foregone by entering competition – no uphold

This headnote does not form part of the decision.

Summary

[1] The results of a "spot the difference" competition were broadcast on 89.8 ZM on 11 January 2002 at approximately 4.50pm. During the broadcast, KD’s incorrect answers and her name, city of residence and email address were read out on-air.

[2] KD complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that her privacy had been breached by the broadcast. She said that the broadcast had caused her humiliation and distress.

[3] The Radio Network Ltd (TRN), the broadcaster of 89.8 ZM, did not accept that KD’s privacy had been breached in the context of a "fun competition".

For the reasons below, the Authority declines to uphold the complaint.

Decision

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

The Broadcast

[5] The results of a "spot the difference" competition were broadcast on 89.8 ZM on 11 January 2002 at approximately 4.50pm. During the broadcast, the complainant’s incorrect answers and her name, city of residence and an email address were read out on-air.

The Complaint

[6] KD complained that her privacy had been breached by the broadcast. She explained that she was extremely embarrassed and humiliated by the broadcast. She also said that by revealing her private and personal details, both she and her daughter, with whom she said she shares her email address, were threatened and distressed. She said the actions of the announcers involved were:

not only reprehensible and unprofessional but they also question issues of privacy and law.

The Broadcaster’s Response

[7] TRN, the broadcaster, did not consider that KD’s privacy had been breached. It said:

It is admitted that your email address was read out. In competitions, contestants’ names and cities are always read out and it is not uncommon for the address to be given as well.

As can be heard in the broadcast, the next competitor is also clearly identified as coming from the TVNZ café in Auckland.

I believe it is also relevant that your email address was given at the start of the broadcast indicating a process of ‘this is the next contestant and this is where she comes from’, rather than some sort of deliberate breach of privacy.

While we regret any embarrassment that may have resulted, the broadcast has to be considered in the context of a fun competition and therefore we reject [that] there was a breach of privacy.

However as a result of the broadcast I have discussed with the station concerned the relevance of broadcasting addresses and this practice will cease immediately.

The Authority’s Determination

[8] KD submitted by email an entry to a "spot the difference" competition being run by 89.8ZM. By mistake, she referred to some incorrect pictures. However, before the announcers realised that the entry was in error, the complainant’s name, city of residence and email address were read out on-air.

[9] In determining privacy complaints, the Authority applies the Privacy Principles which it has developed and which are contained in a published Advisory Opinion, dated 20 September 1999.

[10] In view of KD’s complaint that she was embarrassed and humiliated by the broadcast, Privacy Principle (iv) is relevant. It reads:

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.

[11] However, Privacy Principle (vii) states:

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy.

[12] The Authority is of the view that, unless there is evidence to the contrary, it is implicit that a person who enters a radio competition is consenting to the publication of the details disclosed on the entry form.

[13] In this instance, KD volunteered her email address to the broadcaster when she entered the competition, and the Authority is satisfied that the broadcaster did not broadcast identifying details with the intention of ridiculing her. Accordingly, in the Authority’s opinion, the broadcaster did not infringe her privacy when it broadcast her name, her city of residence and email address on air. The Authority notes the broadcaster’s assurance that the practice of broadcasting addresses is to cease. 

[14] The Authority also observes that to find a breach of the Privacy Principles would be to interpret the Broadcasting Act 1989 in such a way as to limit the broadcaster's statutory freedom of expression in s.14 of the NZ Bill of Rights Act 1990 in a manner which is not demonstrably justifiable in a fee and democratic society (s.5 of the Bill of Rights Act). The Authority adopts an interpretation of the Principles which is consistent with the Bill of Rights.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
4 April 2002

Appendix

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

1. KD’s Formal Complaint to the Broadcasting Standards Authority – 14 January 2002
2. The Radio Network Ltd Response to the Authority – 23 January 2001