Malcolm and RadioWorks Ltd - 2003-007, 2003-008
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- Julia Malcolm
The Edge – caller to station advised that she had unwittingly committed incest and sought assistance with advising half-brother – caller telephoned her half-brother on-air advising him of their relationship – highly sensitive material – breach of privacy – releasing information offensive – no tape
Principle 1 Guideline 1a – despite time for reflection, broadcaster proceeded with the broadcast of very sensitive information for entertainment purposes – uphold
Principle 3 – privacy – consent from one party Privacy Principle (vii) – no uphold – no identification of the other – no uphold
Broadcast of statement
This headnote does not form part of the decision
 "Cleaning Out Your Closet" was the name of a competition run by The Edge, a radio station, in which callers speak about something they want to get off their chest. At about 5.30pm on Monday 19 August 2002, a woman caller said that she had discovered that the man she was "sleeping" with was her half-brother, but she had not told him. She then made a telephone call to her half-brother advising him of their relationship. That telephone conversation was recorded by The Edge and, approximately half an hour later after technically disguising the man’s voice, it was broadcast.
 Julia Malcolm complained to The RadioWorks Ltd, the broadcaster, that the disclosure of such highly sensitive material breached the standards of privacy and good taste and decency. She said that the half-brother was not told that the call was to be broadcast.
 When the broadcaster did not respond to the complaints within 20 working days, Ms Malcolm referred them to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.
 When it responded to the complaints, The RadioWorks explained that all calls were pre-recorded, that it was the woman’s half-brother, and that he was told after the call but before broadcast that it had been recorded, and that callers could decline permission at any stage for the material to be broadcast, but that neither had done so. The RadioWorks denied that the standards were breached and declined to uphold the complaints.
For the reasons below, the Authority upholds the complaint that the broadcast breached the requirement for standards consistent with good taste and decency. It declines to uphold the privacy complaint.
 The members of the Authority have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.
 "Cleaning Out Your Closet" was the name of a competition run by The Edge, a radio station. It was based on Eminem’s recent song and the callers spoke about something they wanted to get off their chest. The RadioWorks advised that calls on The Edge were pre-recorded and participants at any time might decline to allow the broadcast of the matters disclosed.
 Julia Malcolm complained that the broadcast on The Edge at about 5.30pm on Monday 19 August 2002 disclosed highly sensitive material which involved breaches of both privacy and the principles of good taste and decency.
 The broadcast involved, Ms Malcolm wrote, a woman who, in an undisguised voice, said that she had been "sleeping" with a man whom she had later discovered was her half-brother. She then made a telephone call to her half-brother advising him of their relationship. That telephone conversation was broadcast. The Edge advised that it had recorded the call, and was broadcast approximately half an hour later. The man’s voice was disguised, Ms Malcolm noted, but he gave his name and was very surprised. Ms Malcolm said that the caller, who did not tell her half-brother that the call was being recorded, arranged to meet him later to "sort it out".
 Upon finishing the call to her half-brother, Ms Malcolm said, the caller again spoke to the presenters on The Edge who tried to console her as she was extremely nervous, and they told her how brave she was. Ms Malcolm continued:
The woman clearly regretted the revelation that she had made on air. After she had hung up, the two hosts launched back into their usual joking mode and proceeded to advertise a forthcoming competition called Six Degrees of Separation. Laughingly they said that if you’re not careful that’s exactly what happens and "you could end up like (the woman’s name), rooting your brother". (The word rooting was not used but was clearly implied). They then broke into loud derisive laughter.
 Ms Malcolm expressed concern that the broadcaster did not appear to take any responsibility for allowing people to do and say things which they might later regret. She reiterated her concern that the conversation dealt with a private matter and the man receiving the call was not told that he was on-air. She asked whether, having made the call for "laughs", the couple were left to it.
The Referral to the Authority
 As The RadioWorks did not respond within 20 working days, Ms Malcolm referred her complaint to the Broadcasting Standards Authority.
The Broadcaster’s Response to the Complainant
 As it had not received her letter, The RadioWorks apologised to Ms Malcolm for not responding to her complaint.
 The RadioWorks explained the procedure for recording and broadcasting calls in the "Cleaning Out Your Closet" competition. On this occasion, the woman had referred to her half-brother and it had taken 30 minutes for the call to him from the woman to be edited and produced with voice processing. That allowed "plenty of time for her or him to stop it going to air". The RadioWorks said the names used had been changed to protect the privacy of the woman and her half-brother.
 Turning to the presenters’ later comments, The RadioWorks said that the word "rooting" had not been used, when noting that the call was an example of "Six Degrees of Separation", and had advised care when choosing a partner. The RadioWorks did not accept that the woman caller had been made to look foolish, adding:
She had just discovered that the person she had been seeing was in fact her half-brother, and this was the way she chose to tell him, whether right or wrong in a morale [sic] way, it was her choice.
 In regard to the other issue, The RadioWorks stated:
On the second point, he was told afterwards that it would be going to air and given the circumstances with the name and voice processing he had no problem with it…nor did she.
 The RadioWorks declined to uphold the complaints.
The Broadcaster’s Response to the Authority
 The RadioWorks expressed regret to the Authority that it was unable to provide a tape of the programme complained about. Explaining that The RadioWorks had recently made a major effort to meet its obligations in regard to complaints, it explained that the address used by Ms Malcolm to which to send her complaint, while physically accurate, contained no letterbox for the delivery of mail by a postie. In view of the delay in being advised of the complaint, it added, "no tape is now available". The RadioWorks assured the Authority that it had acted in good faith in this instance.
The Complainant’s Final Comment
 The complainant said that she was satisfied with the broadcaster’s explanation as to the mechanics of the broadcast, adding: "If people are foolish enough to do this sort of thing then I guess that’s their business". She continued to express concern about the programme’s concept, and at the broadcaster encouraging participants to "clean out their closet" on-air.
 Ms Malcolm stated that her main concern lay with the broadcaster’s involvement in the complaints process. She recalled that she had found it extremely difficult to contact the broadcaster, noting that on each of the four occasions she had rung the 0800 number listed, she had been unable to get through. She had then found a website for The Edge on the internet. When she sent an email, she had received a phone call in reply and was given the address in Ponsonby to which she had sent her letter. She wrote:
Maybe The Edge might consider listing their address in the phone book in the first place or are they deliberately trying to confound their listeners? You certainly have to be tenacious if you want to contact them. The cynic in me would say that it was very convenient that this "lapse" in time during which my letter was circulating Auckland was long enough for the mandatory time required to keep tapes to elapse.
 Ms Malcolm said that she hoped that, as a result of her complaint, The Edge would advise listeners about the complaints process, and publish its address on its website and in the relevant telephone directories.
 As neither the broadcaster nor the complainant has nominated any broadcasting standards, the Authority, taking into account the matters raised in the complaint, intends to assess the complaint under the following Principles (and Guidelines) in the Radio Code of Broadcasting Practice.
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
1a Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.
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 and applied when determining privacy complaints.
The Authority’s Determination
 The Authority records its regret that it has not been able to listen to a tape of the broadcast complained about. In the past, it has frequently found that it has been unable to determine a complaint about a radio broadcast in the absence of a tape as the tone of the broadcast is often critical to the complaint and the Authority’s finding. Fortunately, the tone of the broadcast is not central to these complaints, and the Authority has been able to complete its task.
 Under Principle 8 of the Radio Code of Broadcasting Practice, broadcasters are required to hold certain tapes for a period of 35 days. The RadioWorks, the broadcaster of the item complained about, was not advised of the formal complaint until after 35 days had elapsed. A tape was not available.
 The Authority notes that the complainant made every reasonable effort to lodge her complaint within the 20 working day period allowed in the Broadcasting Act. She advised that she found it difficult to ascertain an address for The Edge to which to send her formal complaint. The 0800 number was busy on the four occasions she tried, and the website for The Edge provided a fax number, but no mail address. She said her fax to The Edge evoked a telephone call and she was given a name of a person to whom to send her letter and a street address to send it to. The letter failed to reach The Edge, and after Ms Malcolm contacted the Authority, The Edge was advised of the complaint.
 The RadioWorks advised that the address which Ms Malcolm was given was indeed the correct street address, but it was not an address for the delivery of mail.
 In her final comment, Ms Malcolm argued that The Edge should broadcast an address for complaints, and that it should publish that address on its website and in relevant telephone directories. Ms Malcolm also questioned whether the process was designed to discourage complainants.
 The Authority is concerned at the inadequacies of the process put in place by The RadioWorks for receiving complaints about broadcasts on The Edge. It notes that in the letter to the Authority explaining the inadequacies which have taken place (dated 1 November 2002), The RadioWorks was worried that they might in fact recur. Section 5(a) of the Broadcasting Act requires broadcasters to establish a proper procedure to deal with formal complaints, and it is the broadcaster’s responsibility under the legislation to ensure an inadequacy of process is not repeated.
 Dealing first with the privacy complaint, the Authority considers that the broadcast involved neither a breach of the privacy of the woman caller, nor that of her half-brother. By participating in the exchange which she knew would be broadcast, the Authority accepts that the woman gave her consent. The privacy principles, which the Authority applies when determining privacy complaints, do not apply to someone who has consented to a broadcast (privacy principle (vii)). The first decision to be made in a privacy complaint is that the person involved in the broadcast is identifiable to people beyond his immediate family. As the man’s voice was disguised in the broadcast on The Edge at 5.30pm on 19 August, the Authority accepts that he would not have been identifiable. In these circumstances, it declines to uphold the privacy complaint.
 When it determines a complaint that a broadcast contravenes Principle 1 of the Radio Code, the Authority is required to determine whether the language and behaviour complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the standard. Accordingly, the Authority has considered the context in which the exchange complained about was broadcast.
 Having given full consideration to context, the Authority considers that the broadcast on this occasion breached Principle 1. It notes in particular the contextual issue that the broadcast was not a spontaneous, open line call-in. Rather, the broadcaster had 30 minutes from after the call until the broadcast to reflect and exercise judgment. The Authority does not question the right of a broadcaster to discuss incest. On this occasion, however, the topic was not discussed in an informed manner as a matter of freedom of expression. Rather, it broadcast a call involving one woman recounting her experience, and another of the woman advising her half-brother of the incestuous relationship. Essentially, the Authority considers that both calls were broadcast for the entertainment of listeners in response to a radio contest. In support of this finding, the Authority notes that the reference to the relationship by the presenters when advertising a forthcoming competition called "Six Degrees of Separation", indicated that they had approached the matter, at least to some extent, in a light-hearted manner.
 As another contextual matter, the Authority accepts from the correspondence – from both the complainant and the broadcaster – that The Edge had in place a number of procedural steps which indicated an awareness that sensitive matters could arise with the "Clean Out Your Closet" competition. However, the Authority concludes, the decision to broadcast the inherently intimate discussion, after having had some 30 minutes to reflect on contents of the call and the possible impacts upon the participants, indicates an insufficient appreciation by the broadcaster of the standards which it is required to maintain.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits 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". For the reasons given in Decision No. 2002-071/072, 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. 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 given in this decision, including in particular that the broadcaster had ample time to reflect on the decision to proceed with the broadcast of a very sensitive and personal discussion, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of the complaint.
For the reasons above, the Authority upholds the complaint that the broadcast of an item on The Edge, by The RadioWorks Ltd, at approximately 5.30pm on 19 August 2002, breached Principle 1 of the Radio Code of Broadcasting Practice.
It declines to uphold the privacy complaint.
 Having upheld a complaint, the Authority may make orders under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.
 Maintaining that the broadcast had not "attempted to make light" of the serious issue raised, The RadioWorks considered that an apology was appropriate. It also offered $5000 worth of radio advertising to a charity of Ms Malcolm’s choice.
 In her submission, Ms Malcolm focused on what she saw as the need for The Edge to broadcast regularly advice about the complaints procedure, and to publish an easily accessible postal address. She also sought the payment of $5,000 costs to the Crown. In regard to the "Cleaning Out Your Closet" competition, she asked that it include a statement advising participants that they were able to stop the broadcast of any comment which might be recorded.
 The Authority shares Ms Malcolm’s concern about the difficulty complainants might have in sending a formal complaint to The Edge, or any other station, if they are unable to locate reasonably easily a postal address. However, it is unable to make an order in this regard. Nevertheless, it draws the parties’ attention to the requirement in s.6(1)(ba) of the Broadcasting Act for each station to broadcast daily a notice publicising the complaints procedure.
 Having taken the submissions into account, the Authority concludes an order is appropriate. It agrees with The RadioWorks that an order which involves the broadcast of a statement, including an apology to listeners, would be suitable. The statement would refer to the date of the broadcast and the name of the competition but, to ensure that the parties are not identified, the topic involved should be referred to only in general terms. The Authority does not have the power to order advertising for a charity, and does not consider that a order for costs is necessary.
Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders The RadioWorks Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld as a breach of Principle 1 of the Radio Code of Broadcasting Practice. The statement, to be approved by the Authority, will include an apology to listeners and shall be broadcast at a date and time also to be approved by the Authority.
The Authority draws the broadcaster’s attention to the requirements in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
Signed for and on behalf of the Authority
13 February 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Julia Malcolm’s Complaint to The RadioWorks Ltd – 3 September 2002
- Ms Malcolm’s Referral to the Broadcasting Standards Authority – 10 October 2002
- The RadioWorks’ Response to Ms Malcolm – 29 October 2002
- The RadioWorks’ Response to the Authority – 1 November 2002
- Ms Malcolm’s Final Comment – received 19 November 2002
- The RadioWorks’ Report to the Authority – 2 December 2002
- The RadioWorks’ Submission on an Order – 24 December 2002
- Ms Malcolm’s Submission on an Order – 23 January 2003