Macdonald and The Radio Network Ltd - 2004-047
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- K R Macdonald
BroadcasterNew Zealand Media and Entertainment
Complaint under s.8(1)(a) of the Broadcasting Act 1989
Radio Sport – Terror Talkback – breakfast host Martin Devlin telephoned randomly a person with same name as sportsperson in the news – alleged intentional intrusion in person’s seclusion – breach of privacy
Principle 3 – Guideline 3a – Privacy Principle iii – the broadcast telephone call did not amount to prying – not upheld
This headnote does not form part of the decision.
 “Terror Talkback” is a regular feature of the Martin Devlin Breakfast Show on Radio Sport. It involves a telephone call to a person selected randomly who has the same name as a sportsperson in the news. At about 6.20am on 23 February 2004, the host referred to the appointment of a Mr Shand as the Manager of the All Blacks. He then indicated he had randomly chosen the telephone number of a Mr Shand. He telephoned and asked the person who responded what his reaction was to the appointment of Mr Shand as the All Black Manager.
 K R Macdonald complained to The Radio Network Ltd (TRN), the broadcaster, that what he described as “indiscriminate telephoning” was unacceptable and contravened the broadcasting standard relating to privacy.
 It was apparent from the broadcast, he continued, that the person who answered the telephone on 23 February was elderly, had been awoken, did not listen to Radio Sport, had no interest in the appointment of the All Black manager, and objected to being woken in that manner.
 Mr Macdonald described the “Terror Talkback” practice as “stupid”, and considered that the call amounted to intentional interference with an individual’s interest in solitude.
 TRN assessed the complaint under Principle 3 and Guideline 3a of the Radio Code of Broadcasting Practice which read:
In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.
3a Broadcasters shall apply the privacy principles developed by the Broadcasting Standards Authority.
 The complaint focuses on Privacy Principle (iii) which states:
- 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.
Broadcaster's Response to the Complainant
 Explaining that the call involved making a play on a name in the news, TRN pointed out that marketing and polling organisations made frequent use of random calls. It continued:
‘Terror Talkback’ calls are pre-recorded and permission must be granted by the person called before the recording can go to air. This was obtained in the case you cite.
 TRN noted that the complaint raised the issue about the time of the call and contended, despite the problem with making generalisations, that it was legitimate to make random calls between 6.00am and 10.00pm. It declined to uphold the complaint.
Referral to the Authority
 When he referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989, Mr Macdonald recorded that he was “appalled” that the broadcaster considered that it was legitimate to telephone between 6.00am and 10.00pm. He also said that he would be interested to contact the person spoken to on 23 February as he expressed doubt as to the accuracy of TRN’s claim that the person had granted permission for the broadcast of the call.
Broadcaster's Response to the Authority
 While confirming its decision on Mr Macdonald’s complaint, TRN advised that, on reconsideration, the “Terror Talkback” calls were not now to be made before 7.00am.
Complainant’s Final Comment
 Mr Macdonald pointed out that the same talkback host had recently telephoned a Mrs Martin at 6.20am, following the actions of New Zealand cricket player Chris Martin. TRN’s contention that such calls were now allowed only after 7.00am, he said, lacked credibility.
 TRN acknowledged that its instruction had not been made known to the host as he had been on sick leave. However, after the call to Mrs Martin referred to, he had been told of the new requirement.
 The members have listened to a tape of the call complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority understands why Mr Macdonald considered the “Terror Talkback” feature to be offensive. It regards the practice of telephoning an anonymous person early in the morning, solely because they have the same surname as a sports person in the news, as puerile. The Authority is also of the opinion that the behaviour, apparently carried out for the purpose of ratings, verges on being exploitative.
 Mr Macdonald contended that the practice amounted to a breach of Principle 3 (privacy) in that it contravened Privacy Principle (iii) which refers to the “intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion”.
 When determining complaints that a broadcast is in breach of Privacy Principle (iii), the Authority emphasises that the broadcast must involve prying – that is inquiring impertinently into the affairs of another person. While “Terror Talkback” may often amount to rudeness, as occurred in the broadcast of 23 February, the Authority finds that the telephone call did not amount to prying in that it was concerned only with the coincidence of the surnames of the sports person and the Mr Shand who on this occasion was apparently awoken at 6.20am. Accordingly, it declines to uphold the privacy complaint.
For the above reasons, the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
6 May 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- K R Macdonald’s Formal Complaint to The Radio Network Ltd – 24 February 2004
- TRN’s Response to the Formal Complaint – 3 March 2004
- Mr Macdonald’s Referral to the Broadcasting Standards Authority – 8 March 2004
- TRN’s Response to the Authority – 16 March 2004
- Mr Macdonald’s Final Comment – 22 March 2004
- TRN’s Further Response to the Authority – 30 March 2004