BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

During The Edge’s Smash! 20 countdown show, a caller successfully answered a series of questions based on the songs in the countdown and won a prize. While taking the caller’s personal details, the announcer left the phone channel in ‘on-air’ mode and inadvertently broadcast the caller’s full name, address, school, date of birth and mobile number. The Authority upheld a complaint that the broadcast breached the caller’s privacy. The caller was clearly identifiable and disclosed a high level of personal detail on air, over which she had a reasonable expectation of privacy. The Authority acknowledged the caller’s disclosure was the result of an unfortunate technical error on the announcer’s part, and that the broadcaster took immediate actions to respond to the breach. The Authority did not make any order in these circumstances.

Upheld: Privacy

No Order

Introduction

[1]  During The Edge’s Smash! 20 countdown show, a caller successfully answered a series of questions based on the songs in the countdown and won a prize. While taking the caller’s personal details, the announcer left the phone channel in ‘on-air’ mode and inadvertently broadcast the caller’s full name, address, school, date of birth and mobile number.

[2]  Karen Madden complained directly to the Authority that the broadcast breached the caller’s privacy.

[3]  The issue is whether the broadcast breached the privacy standard, as set out in the Radio Code of Broadcasting Practice.¹

[4]  The item was broadcast on 12 July 2016 on The Edge at 9.30pm. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach the caller's privacy?

[5]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. However it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

The broadcaster’s submissions

[6]  MediaWorks accepted that the caller was identifiable in the broadcast and that she had provided her name and contact details under the assumption that she was off air. MediaWorks found that an objective, reasonable person in the caller’s position would have considered this to be private information, and considered the broadcast of this personal information and contact details to be highly offensive.

[7]  While MediaWorks accepted there was a breach, it did not consider the breach to be ‘severe’. It said that the disclosure came about through human error, not through any intention to encourage harassment, and there was no malice directed towards the caller. MediaWorks said, ‘It is a reality of the highly technical nature of a radio broadcasting environment that on occasion technical errors will occur. Unfortunately, in this instance a technical error has led to a privacy breach’.

[8]  MediaWorks said that the announcer immediately contacted the caller to explain what had happened and to apologise, and that the show’s producer and The Edge’s Content Director had formally counselled the announcer, reminding him of his responsibilities when handling live phone calls.

Our analysis

[9]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.²

[10]  The broadcaster has acknowledged that the criteria for a breach of privacy were met in this case. The caller was clearly identifiable through the disclosure of her full name, address, date of birth, school and cellphone number. She had a reasonable expectation of privacy in the circumstances, as she divulged her personal information under the assumption that she was providing this information to the announcer off air, not to all listeners of the programme. Additionally, we note that the caller, who, at the time of broadcast, would have been 15 years old, is considered a child for the purposes of the privacy standard (under 16). Children generally have high reasonable expectations of privacy,³ and the caller’s age meant she was unable to consent to the disclosure of information.⁴ We consider that a reasonable person would have found the broadcast of the caller’s personal information in these circumstances to be highly offensive.

[11]  We therefore uphold the privacy complaint.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of Smash! 20 on 12 July 2016 breached Standard 10 of the Radio Code of Broadcasting Practice.

[12]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.

[13]  We have carefully considered whether orders are warranted in this case. While this was an inadvertent, technical error, ultimately, the announcer’s carelessness did result in a serious breach of a young caller’s privacy. The broadcaster took effective steps to immediately respond to the breach, in particular by calling the listener to explain and to apologise, and by reminding the announcer of his responsibilities.

[14]  We are mindful that this is a complaint made by a third person about the caller’s privacy having been breached. We have found it to be a justified complaint. For us to make an award of compensation we would need to have some understanding of what the consequences of the breach were, if any. We do not know and nor does the complainant. We could inquire of the caller, who is a young person, but we have decided not to do so. The caller has not participated in this process and an inquiry by this Authority may be seen as intrusive or as a re-opening of something that has been closed. Accordingly, on balance we have decided to leave things where they lie and not make any order in the circumstances.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 October 2016

Appendix

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

1     Karen Madden’s formal complaint – 13 July 2016
2     MediaWorks’ response to the complaint – 12 August 2016

¹ This complaint was determined under the new Radio Code, which took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/radio-code

² Guidelines 10a and 10b to Standard 10 (Privacy) 

³ Broadcasting Standards in New Zealand Codebook, Guidance: Privacy, 5.2 

⁴ Broadcasting Standards in New Zealand Codebook, Guidance: Privacy, 5.1 and 5.3