BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Newstalk ZB – host made comments about a listener who had emailed him – called listener a “moron” who was “incapable of rationality” and said “don’t email me again until you’ve had some help with your head” – allegedly in breach of privacy and unfair – broadcaster upheld fairness complaint – complainant dissatisfied with privacy decision

Findings
Principle 3 (privacy) – no reasonable expectation of anonymity when emailing a radio station – no private facts disclosed – implied consent given to broadcast name – not upheld

This headnote does not form part of the decision.

Broadcast

[1] During Leighton Smith’s talkback show on Newstalk ZB at approximately 10.10am on 17 March 2006, the host made the following comments about a listener who had emailed him:

Oh dear, Kevin Malone go away. Go and get help for goodness sake. You are incapable of rationality. Jeez you’re a moron.

It is um…I mean your comparison just is…it is illogical to the extreme for goodness sake. Don’t email me again until you’ve had some help with your head.

Complaint

[2] Kevin Malone made a formal complaint about the comments to The Radio Network Ltd (TRN), the broadcaster. He explained that he had been corresponding with the host via email, and that the host had previously referred to him on the talkback show but had never used his surname. Mr Malone said that he understood that correspondence and calls to the talkback show were considered to be anonymous, and he stated that he had not given permission for his full name to be used. Even though his full name was contained in the header of his emails, Mr Malone said he had signed his emails only as “Kevin”.

[3] The complainant contended that broadcasting his full name was malicious and a “calculated breach” of his privacy. He noted that the host had not read out his email, thereby leaving listeners with no background or explanation for his comments.

Principles

[4] TRN considered the complaint under Principles 3 and 5 of the Radio Code of Broadcasting Practice, which provide:

Principle 3

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

Principle 5

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

Broadcaster's Response to the Complainant

[5] TRN upheld the complaint under Principle 5 (fairness). It considered that in using Mr Malone’s full name there was a greater onus on the host to treat him justly and fairly. With no explanation of the content of the email Mr Malone had sent the host, TRN agreed that the complainant had been treated unfairly.

[6] However, the broadcaster did not agree that the broadcast amounted to a breach of Mr Malone’s privacy. It observed that Mr Malone had not requested that his name not be used, and said:

At no stage did [the host] keep your emails private. He sometimes broadcast extracts from them and you continued to send them. You also appear to have a misconception about the anonymity of correspondence and calls. Many callers and email correspondents have their full name used on air.

[7] Based on these facts, and the frequency of Mr Malone’s correspondence, TRN stated that he must have been aware “there was always a good chance” of his name being used on air. It declined to uphold the privacy complaint.

Referral to the Authority

[8] Dissatisfied with TRN’s response in respect of Principle 3 (privacy), Mr Malone referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He maintained that the broadcast had breached his privacy, and said that there could be no other explanation for broadcasting his full name other than to publicly denigrate him.

[9] Mr Malone contended that if it was simply a matter of the host’s discretion whether the full names of callers were broadcast, then a warning should be broadcast about this before each talkback session. He said that this should be enforced by the Authority.

Authority's Determination

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

[11] Mr Malone has complained that the host deliberately disclosed his full name in order to “abuse” and “denigrate” him. The Authority considers that the following privacy principles are relevant to Mr Malone’s complaint:

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).

[12] In order for a complaint to succeed under privacy principle (iv), there must have been a disclosure of “private facts”. On this occasion, the complainant’s full name was disclosed in the broadcast. In the Authority’s view, this would only amount to a “private fact” if Mr Malone had a reasonable expectation of anonymity when he emailed the host.

[13] The Authority finds that a person emailing a talkback radio station does not have a reasonable expectation of anonymity. It agrees with TRN that anyone sending regular emails to a radio host is engaging in a “public forum”. Mr Malone acknowledged that he continued to send emails (which included his full name in the header) with no specific request for confidentiality, even after the host had read excerpts from several on air. In these circumstances, the Authority considers that Mr Malone could not reasonably have expected that anything about his emails would remain private, including his name. It finds that privacy principle (iv) was not breached.

[14] For the same reasons, the Authority finds that the broadcast did not contravene privacy principle (v). This principle states that a person’s name cannot be disclosed “without consent”. Because of the public nature of the forum, the Authority considers that a person emailing a talkback radio station should be aware that any part of their correspondence could be disclosed by the host. Because he did not make it explicit in his emails that he did not wish to be identified, the Authority considers that Mr Malone consented by implication to his name being used by the host. The Authority notes that if Mr Malone desired anonymity in his dealings with the host, he had the option of using an email address which did not contain his full name, or specifically requesting anonymity.

[15] Accordingly, the Authority declines to uphold the complaint that the broadcast breached Mr Malone’s privacy.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 June 2006

Appendix

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

1. Kevin Malone’s formal complaint – 23 March 2006
2. TRN’s decision on the formal complaint – 10 April 2006
3. Mr Malone’s referral to the Authority – 11 April 2006
4. TRN’s response to the Authority – 3 May 2006