BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Radio Pacific – Solid Gold – The Edge – The Rock – messages broadcast over 4 days asking anyone who knew whereabouts of complainant to contact The RadioWorks – improper use of missing person report – unfair – breach of privacy

Findings
Principle 3, guideline 3a – privacy principle (iii) – disclosure of name because of a company’s unpaid debt – intrusion into seclusion – majority uphold; privacy principle (iv) – no intention to ridicule – no uphold; privacy principle (v) – no public interest in name disclosure – majority uphold

Principle 5, guideline 5c – reference to complainant unfair – majority uphold

No Order

This headnote does not form part of the decision.

Summary

[1] A message asking anyone who knew the whereabouts of John Lehmann to contact The RadioWorks was broadcast at various times on the Radio Pacific Network, the Solid Gold Network, The Rock Network and The Edge Network, on 25 and 27 November 2001.

[2] John Lehmann complained to The RadioWorks Ltd, the broadcaster, that "a missing person" report had distressed him and his family and had breached his privacy and was unfair to him. Mr Lehmann believed that the message was broadcast in order to locate him, as the broadcaster incorrectly assumed that he owed money to the broadcaster.

[3] In response, The RadioWorks maintained, first, that Mr Lehmann was not referred to as a missing person, and second, that he had given a personal guarantee for the company’s cheques. It declined to uphold the complaints.

[4] Dissatisfied with The RadioWorks’ response, Mr Lehmann’s solicitor referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaints. It declines to impose an order.

Decision

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

The Programmes

[6] A message was broadcast on 24,25, 27 and 28 November 2001 on four of the networks broadcast by The RadioWorks. It named the complainant, referred to a number of companies he was said to be associated with, and asked that he, or anyone who knew him, to contact The RadioWorks. One version of the message asked him to contact Janet Faulding of The RadioWorks.

The Complaint

[7] Through his solicitors, Mr Lehmann complained to The RadioWorks about "a missing person’s" report broadcast on 25 and 27 November. Mr Lehmann believed that the message was broadcast in order to locate him, as the broadcaster incorrectly assumed that he owed money to the broadcaster.

[8] Mr Lehmann stated that, after receiving numerous calls from distressed friends and family, he had left four messages with the station manager at Radio Pacific. As there was no response, he instructed solicitors to contact the broadcaster to stop the calls. He noted that the station refused and let the reports run for a further 12 hours.

[9] In regard to the money owed to the broadcaster, Mr Lehmann said that it was owed a by separate legal entity, Chemical Enterprises Ltd, and the invoice from The RadioWorks was made out to that company. The invoice also noted Mr Lehmann’s designation as marketing manager.

[10] In addition to a breach of broadcasting standards, Mr Lehmann said "a missing person’s report" damaged his professional reputation and brought emotional harm to himself, family and friends.

The Standards

[11] The RadioWorks assessed the complaint under Principles 3 and 5 of the Radio Code of Broadcasting Practice. They provide:

Principle 3

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

Guideline

3a  Broadcasters shall apply the privacy principles developed by the Broadcasting Standards Authority and applied when determining privacy complaints.

Principle 5

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

Guideline

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

[12] The RadioWorks agreed that Chemical Enterprises Ltd had arranged for advertising. However, it continued, it had been allowed advertising only on the basis that it was given post-dated cheques and, in addition, it wrote, "Mr Lehmann gave personal verbal guarantees for the cheques".

[13] The RadioWorks reported that, on the first occasion, post-dated cheques for $15,750 were cleared only following lengthy discussions with Mr Lehmann and his bank.

[14] Further advertising was accepted, The RadioWorks continued, only on Mr Lehmann’s "personal verbal guarantee that the cheques would not bounce". However, cheques for a total of $13,500, although presented twice, had not been cleared by the bank.

[15] In order to resolve the matter, The RadioWorks recalled, efforts were made "on numerous occasions" to contact Mr Lehmann. These efforts were unsuccessful and Mr Lehmann’s mobile phone was not working. Efforts by Baycorp (a collection agency) to locate Mr Lehmann were also unsuccessful. In these circumstances, The RadioWorks wrote, the only way for it to locate Mr Lehmann was to broadcast a message "to ask him or anyone who knew him" to call a named person who worked for The RadioWorks.

[16] The RadioWorks advised that the campaign had begun on Saturday and Sunday, the 24 and 25 November and, when that proved unsuccessful, it was repeated on Tuesday and Wednesday 27 and 28 November.

[17] During the second period when the message was broadcast, The RadioWorks recorded, solicitors acting for Mr Lehmann passed on a mobile phone number, but it was found to be not working. At 1.42pm on 28 November, The RadioWorks wrote, Mr Lehmann telephoned and left a message for the named person at The RadioWorks. She contacted Mr Lehmann and advised him that the campaign would finish at midnight. She also told him that she wished to meet him to discuss the outstanding account. However, The RadioWorks stated, Mr Lehmann had been abusive and threatening.

[18] The RadioWorks maintained that Mr Lehmann had not been defamed and he had "failed miserably to support his verbal guarantees".

The Complainant’s Response to the Broadcaster

[19] In response to The RadioWorks, Mr Lehmann argued that he was not an officer of Chemical Enterprises and "strongly" denied that he had given any personal guarantees.

[20] In regard to the first batch of cheques referred to, Mr Lehmann advised that money was deposited to meet the cheques and The RadioWorks subsequently apologised.

[21] In regard to the second lot of cheques, Mr Lehmann said that the cheque book was stolen when he moved from the "far North" to Auckland, and his contact with Chemical Enterprises ceased at that time.

[22] Mr Lehmann also maintained that he had had a mobile phone since 1990 and "it has never been disconnected". Mr Lehmann acknowledged he threatened to sue The RadioWorks’ employee personally for defamation when he had spoken to her on 28 November, but he did not accept that he had been abusive. The employee had hung up on him.

[23] Mr Lehmann contended that he had no contractual relationship with The RadioWorks and that he had given it no verbal or written guarantees.

The Referral to the Broadcasting Standards Authority

[24] Mr Lehmann’s solicitors referred the complaint to the Authority as he was unhappy with the way Mr Lehmann had been treated by the broadcaster.

The Broadcaster’s Response to the Authority

[25] The RadioWorks said that at no stage had Mr Lehmann been referred to as a missing person, noting:

The broadcast related to asking the public if they could assist in locating Mr Lehmann. Broadcasting a request of this nature does not constitute a breach of privacy.

There is no difference in broadcasting the request on air or placing an advertisement in the daily paper requesting information as to the whereabouts of a certain individual. This is common business practice especially when attempting to locate persons who have outstanding debts.

The Complaint’s Final Comment

[26] The complainant’s solicitor repeated:

We reiterate that RadioWorks was attempting to locate Mr Lehmann for a debt that was not his. We have not had the opportunity of hearing the broadcast and can only say that if the word "missing" was not used then the report certainly led people to believe that Mr Lehmann was missing

[27] The letter also expressed concern about what people were told when they telephoned. It was not true, the letter maintained, that he owed money.

[28] On the basis that the broadcast was an exercise in information gathering about him, Mr Lehmann’s solicitors considered that the broadcast breached his privacy and was unfair to him.

[29] In a later letter, the complainant’s solicitor asked that the complaint be considered under Privacy Principles (iv) and (v) of the Authority’s privacy Principles, and wrote:

Specifically our client believes that RadioWorks used the airways to deal with a private dispute between Chemical Enterprises Limited and RadioWorks.

We are also instructed that our client believes that his name was disclosed by RadioWorks without his permission.

The Authority’s Determination

[30] The complainant maintained that the broadcast of his name at various times on four networks broadcast by The RadioWorks breached his privacy and was unfair to him. From the information supplied by the broadcaster, it seems that a total of 73 messages were broadcast between 6:00am and midnight on the 24, 25, 27 and 28 November 2001. Two similar messages were broadcast. One was worded:

If you know the whereabouts of John Lehmann associated with the companies Ferco, Waco Coatings and RB 80 and believed to be in the Whangarei/Northland area, please contact Janet Faulding during business hours at 09 375 7171.

[31] Under Principle 3 of the Radio Code, broadcasters are required to maintain standards consistent with the privacy of the individual. As guideline 3a records, the Privacy Principles developed by the Authority are those which are applied to privacy complaints. The Authority considers that Privacy Principles (iii), (iv) and (v) deal with the situation that has risen in this complaint. They provide:

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual's interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

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.

v) 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).

[32] The Authority does not consider that the broadcast was a "missing person" message but it is divided whether the broadcast was offensive to the ordinary person as to amount to a breach of Privacy Principle (iii). On being informed by the correspondence that The RadioWorks sought to contact Mr Lehmann because of an unpaid debt, the majority considers that the broadcaster used its position unjustifiably for private purposes. The majority concludes that the intrusion into Mr Lehmann’s interest in seclusion caused by the broadcasts was offensive to the ordinary person.

[33] The majority believes there is an essential difference between a private radio broadcaster using its frequencies to broadcast a large number of messages (73 according to the broadcaster) requesting information as to the whereabouts of a certain named individual, and regular public notice advertisements in the print media placed by parties other than a newspaper. The former is not a common practice.

[34] The minority of the Authority (Rodney Bryant) does not agree. Pointing out that he had not considered Mr Lehmann was portrayed as a missing person when he listened to the broadcast, the minority considers that naming people who the broadcaster contends are debtors in order to locate them is justifiable, albeit marginally, for the business operation of a private radio broadcaster. In coming to this conclusion, the minority notes that the broadcaster advised that the broadcast of Mr Lehmann’s name took place only after other attempts to locate him were unsuccessful. The minority declines to uphold the complaint as a breach of Privacy Principle (iii).

[35] As the broadcaster did not disclose facts with the intention to abuse or ridicule Mr Lehmann, and the facts were not used to abuse him, the Authority concludes that Privacy Principle (iv) was not transgressed.

[36] Privacy Principle (v) protects against the disclosure by a broadcaster of a person’s name (among other things) unless it is in the public interest to do so.

[37] The Authority is also divided in its decision on this aspect of the complaint. For the same reasons given in paragraphs [32], [33] and [34], the majority upholds the complaint as a breach of Privacy Principle (v), and the minority (Rodney Bryant) declines to uphold it.

[38] Mr Lehmann also complained that the broadcast breached Principle 5 of the Radio Code which requires that broadcasters deal fairly with people referred to.

[39] The concepts of fairness and privacy overlap and, in this instance because the issues are similar, the Authority reaches the same determination on Principle 5 as it did on Privacy Principles (iii) and (v). This aspect of the complaint is upheld by a majority, and not upheld by the minority (Rodney Bryant).

[40] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". The Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. In addition, for the reasons given in this decision, a majority of the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the majority has taken into account all the circumstances of these complaints, including the disclosure of the name of an identifiable person without consent, and the potential impact of an order.

[41] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.

For the reasons above, a majority of the Authority upholds the complaints that the broadcast by The RadioWorks Ltd of messages naming Mr John Lehmann on 25 and 27 November 2001 breached Principles 3 and 5 of the Radio Code of Broadcasting Practice.

[42] Having upheld the complaints, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[43] The RadioWorks expressed surprise that the complaints were upheld and argued that if any order was imposed, it should be a requirement for the broadcast of a statement summarising the decision.

[44] Mr Lehmann suggested the imposition of orders in regard to each network, and in regard to each broadcast. He argued that the payment of compensation and the payment of his costs were appropriate. He also sought the broadcast of a statement relating to the complaints on 73 occasions.

[45] The Authority notes that this is the first occasion that it has been required to determine a complaint of this nature, and that broadcasters will now be aware that such broadcasts are unacceptable and contravene the standards. Given the precedential nature of the decision, and noting that the imposition of an order is discretionary, including one dealing with costs, the authority concludes that it is not necessary or appropriate to impose any orders.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
13 June 2002

Appendix

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

1. John Lehmann’s Solicitor’s Complaint to The RadioWorks Ltd – 12 December 2001
2. The RadioWorks’ Response to the Complaint – 20 December 2001
3. Mr Lehmann’s Solicitor’s Reply to the Broadcaster – 21 January 2002
4. Mr Lehmann’s Solicitor’s Referral to the Broadcasting Standards Authority – 4 February 2002
5. The RadioWorks’ Response to the Authority – 26 February 2002
6. Mr Lehmann’s Solicitor’s Final Comment – 15 March 2002
7. Mr Lehmann’s Solicitor’s Further Final Comment – 4 April 2002
8. The RadioWorks’ Submission on an Order – 23 May 2002
9. Mr Lehmann’s Solicitor’s Submission on an Order – 24 May 2002