BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

In an episode of Mai Home Run, one of the radio presenters related a story about accidentally taking and not returning a bag containing items, including a gaming console, belonging to Lil’ Romeo. The presenter also disclosed the name of one of the people involved in the story. The Authority upheld the complaint that the item breached the privacy standard, finding that the named individual was identifiable and would have had a reasonable expectation of privacy in relation to the information disclosed. The Authority also found the disclosure to be highly offensive to a reasonable person, as it had the potential to significantly damage the named person’s reputation. The Authority did not uphold the complaint under the law and order standard, finding that in context the broadcast did not encourage or actively promote serious anti-social or illegal behaviour. The Authority also did not uphold the complaint under the discrimination and denigration standard, finding that, in the context, the item did not encourage discrimination against or denigration of the Māori or Polynesian communities.

Upheld: Privacy

Not upheld: Law and order, discrimination and denigration

The broadcast

[1]  In a segment on Mai FM’s afternoon show, Mai Home Run, the presenters discussed the possibility of Atari-themed hotels in Las Vegas. This led to a short discussion about video gaming consoles, in which one of the presenters related a story about a friend accidentally picking up a bag belonging to the American rapper, Lil’ Romeo during a basketball tournament in Las Vegas and failing to return it. In the discussion the hosts said:

Host 1: ...so we were in Vegas and we played against a team and then they were on the bench right after us, so they put their uniform on and they put their bags down, and then while they were warming up we went to grab our bags, and one of the boys grabbed the wrong bag, and he picked up Lil’ Romeo’s bag. So in the bag was like his, ah, he had a, I think, it was a no-limits chain…there was a PSP in there, his wallet, everything was in there and we looked at ourselves, like, we got back to the hotel, like do we give it back? And then we saw him the next day, he had a brand new chain on, and then we were like nah we’ll keep this. So I kept the PSP, it’s still in my mom’s house. The chain is out west in Auckland somewhere.

Host 2: Oh my God.

Host 1: Yea [name of friend] took it.

Host 3: Chuck him under the bus eh?

Host 1: He lives in Australia now so it’s alright.

Host 3: Safe, safe, safe

Host 1: But that was my shout-out to Lil’ Romeo for the PSP, I appreciate it.

[2]  This segment was broadcast at 4:25pm on 29 January 2020 on Mai FM.

[3]  In considering this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[4]  Andrew Marino complained that the broadcast breached three standards of the Radio Code of Broadcasting Practice as follows:

Law and order

[5]  The complainant submitted that the presenter related his ‘personal experience of committing this crime in such a way that glorified it and made it sound desirable and fun. Theft is a serious crime, and should be treated as such especially on air during peak time.’

Discrimination and denigration

[6]  With respect to this standard, the complainant submitted that Mai FM has a target audience which includes the Māori and Polynesian communities. He explained that he identifies with such communities, and ‘condoning behaviours such as theft and crime is denigration. It devalues the reputation of our already unstable and stigmatized section of the community in Aotearoa.’

Privacy

[7]  Mr Marino submitted that the presenter breached this standard by naming his friend and announcing on air that he now lives in Australia.

The broadcaster’s response

[8]  Mediaworks did not uphold the complaint for the following reasons:

• ‘While we agree that the hosts’ failure to condemn the behaviour described in the Broadcast is unfortunate, the Committee does not consider that the Broadcast hit the threshold for actively promoting serious antisocial or illegal behaviour.’
• The broadcaster did not consider that the broadcast met the threshold of having encouraged discrimination or denigration.
• While the broadcast identified the presenter’s friend, and revealed that the person is now living in Australia, the information was not disclosed in a way that was highly offensive to an objective reasonable person in the position of the person affected.

The relevant standards

[9]  The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. This standard is designed to prevent programmes that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.¹

[10]  The discrimination and denigration standard (Standard 6) provides that broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. Denigration is defined as devaluing the reputation of a particular section of the community.²

[11]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. Broadcasters should not disclose private information or material about an individual in a way that is highly offensive to an objective reasonable person in the position of the person affected.³

Our analysis

[12]  The starting point in our consideration of a complaint is that we recognise the right to freedom of expression, including the broadcaster’s right to entertain, and to impart ideas and information, and the public’s right to receive that information and expression. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified. In this case we are considering a complaint about the content of a light-hearted entertainment radio programme. The context of the narrative complained about is important to our assessment of this complaint.

Law and order

[13]  We do not consider that the item actively promoted ‘serious antisocial or illegal behaviour’⁴ in the manner required to find a breach of the law and order standard. The presenter described an incident in which young people took advantage of a mistake. He did not describe an intentional theft, and it seems that there was no intention to permanently deprive the owner of the bag when it was initially mistakenly taken. The young men may have been dishonest about choosing not to return the bag, but in our view this is not the type of conduct contemplated by the standard,⁵ nor was the story relayed in such a way as to encourage others to follow suit.

[14]  To the extent that the conduct may be considered anti-social, we do not consider it reaches the level required to find a breach of the standard. Nor do we consider that the presenters encouraged or actively promoted similar behaviour by others. The comments by the other hosts (for example, ‘oh my god,’ and ‘chuck him under the bus eh?’) would have conveyed to listeners that the decision to retain the mistakenly obtained bag was wrong.

[15]  We therefore do not uphold the complaint under the law and order standard.

Discrimination and Denigration

[16]  The discrimination and denigration standard applies only to recognised ‘sections of the community’.⁶ We agree that Māori and Polynesian communities are recognised sections of the community for the purposes of this standard.

[17]  The next question is whether or not the broadcast ‘encouraged’ discrimination against, or denigration of those communities. The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to reach that conclusion.⁷

[18]  Taking into account the following factors, we do not consider that the item encouraged discrimination against or denigration of the Māori or Polynesian communities:

• The presenter was telling a story about events that took place a long time ago. It was a story about his first PSP, and how he got it. The standard is not intended to prevent the broadcast of material that is factual.⁸
• There was no mention of, or reference made to, the Māori or Polynesian communities, and the presenter did not specify whether his friend identified as Māori or Polynesian.
• The story was not told in a way that highlighted those communities or placed them in a bad light.
• There was no indication of condemnation, malice or nastiness towards Māori or Polynesian communities in the tone or manner in which the story was told.

[19]  We therefore do not uphold the complaint under the discrimination and denigration standard.

Privacy

[20]  In deciding whether a breach of privacy has occurred we consider three criteria:

(a)  whether the individual(s) whose privacy has allegedly been interfered with was identifiable⁹

(b)  whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy¹⁰

(c)   whether the disclosure could be considered highly offensive to an objective reasonable person.¹¹

[21]  In this case we agree with the complainant that the presenter’s friend was clearly identifiable. The following information was disclosed on air:

• the individual’s name
• the fact that he used to live in West Auckland
• the fact that he has now moved to Australia
• that he used to play basketball and went on a school trip
• that he was part of the group that had taken and retained Lil’ Romeo’s bag
• that he took and kept Lil’ Romeo’s chain.

[22]  We all agreed that the information disclosed about the person was information over which he would have had a reasonable expectation of privacy. The information disclosed on air is personal information,¹² and its disclosure resulted in the host’s friend being expressly connected, by the disclosure of his name and other details, to an event from his youth that he may reasonably not wish to be disclosed live on air.

[23]  We also agreed that the disclosure of the person’s personal information, in the context of the story that was told, would be highly offensive to an objective reasonable person in the position of the individual affected.

[24]  While we believe that the individual now resides overseas, and the events may have occurred a long time ago, we are of the view that the broadcast highlighted his participation in behaviour that had the potential to negatively impact his reputation. In our view, this disclosure would be highly offensive to a reasonable person.¹³

[25]  Finally, while it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest, we find there was no public interest in this historical story, and the defence does not apply.

[26]  Therefore, we uphold the complaint under the privacy standard.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of an item on Mai Home Run breached Standard 10 (Privacy).

[27]  Having upheld part of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider the publication of this decision is sufficient to publicly notify the breach of the privacy standard, and to censure the broadcaster.

[28]  This decision provides guidance on our expectations and we encourage broadcasters to remain mindful and respectful of individuals’ privacy when relating stories and anecdotes on air.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
4 August 2020

Appendix

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

1  Andrew Marino’s original complaint to MediaWorks – 29 January 2020

2  MediaWorks’ response to Mr Marino – 26 February 2020

3  Mr Marino’s referral to the BSA – 26 February 2020

4  MediaWorks’ confirmation of no further comments – 8 April 2020

¹ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
² Guideline 6a
³ Guideline 10b
⁴ Guideline 5a
⁵ Hunt and Māori Television, Decision No. 2009-010 at [10]
⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁷ Guideline 6b
⁸ Guideline 6c
⁹ Guideline 10a
¹⁰ Guideline 10c
¹¹ Guideline 10b
¹² Privacy Commissioner “What is Personal Information” <www.privacy.org.nz>
¹³ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59