BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
Willie and JT – host broadcast listener’s email address and said “send him an email” – allegedly in breach of privacy

Findings
Standard 3 (privacy) – privacy principle 4 applies to email addresses – personal email address is also a private fact under privacy principle 1 – however host’s disclosure of email would not be highly offensive to an objective reasonable person – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   During the Willie and JT programme, broadcast on Radio Live on the afternoon of 22 October 2010, one of the hosts read out an email from a listener in response to the hosts’ discussion about union action over the film The Hobbit. After reading out the email, which strongly disagreed with the host’s opinion, the host said:

...That’s from [listener’s full name]. That’s [full name] at hotmail, [full name] at hotmail.com. Send him an email.

Referral to the Authority

[2]   Justin Marshall lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989. He argued that the host had breached the listener’s privacy by broadcasting his email address and encouraging the audience to email him.

Standards

[3]   Standard 3 of the Radio Code of Broadcasting Practice and privacy principles 1 and 4 of the Authority’s Privacy Principles are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Privacy principles

1.   It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

4.   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 individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

Broadcaster’s Response to the Authority

[4]   RadioWorks stated that in all privacy complaints it must first consider whether the person whose privacy was allegedly infringed was identifiable in the broadcast. It accepted that the listener was identifiable in this instance.

[5]   Next, RadioWorks considered privacy principles 1 and 4. Referring to the Authority’s decision in Kirk and TVWorks,¹ which stated that principle 4 was “not intended to cover the disclosure of an electronic email address”, the broadcaster maintained that privacy principle 4 was not applicable in the circumstances.

[6]   RadioWorks then considered whether any private facts were disclosed about the listener contrary to principle 1. It accepted that a personal email address could be regarded as a private fact. However, it maintained that the disclosure would not be considered offensive or objectionable by a reasonable person in the listener’s position. RadioWorks argued, “The host did not encourage listeners to harass the emailer and merely read the contents of the email (which of itself was strongly worded. He finished by reading out the email address and saying ‘send him an email’.” It considered that a reasonable person would not find the disclosure of the email address offensive because “the host did not take an overtly negative position on its contents and because consequences of receiving emails are not personally intrusive”.

[7]   Further, the broadcaster considered that “both the Christian and surname within the address are subject to variations in spelling and the chances of a listener (who may have been tempted to email the man) spelling the entire email address correctly were very slim”. It maintained that it was “significant” that the listener himself had not complained about the broadcast.

[8]   RadioWorks concluded that the listener’s privacy had not been breached, and it declined to uphold the Standard 3 complaint.

Authority's Determination

[9]   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.

[10]   When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the host disclosed the listener’s full name, we are satisfied that he was identifiable.

[11]   The disclosure of an email address has previously been considered by the Authority under privacy principles 1 and 4 of the Authority’s Privacy Principles.

Privacy principle 4

[12]   Privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public.² In Kirk and TVWorks Ltd,³ the Authority found that this principle did not apply to the disclosure of email addresses. The Authority said in that decision:

The inclusion of the word “address” in privacy principle 4 was intended to prevent broadcasts which disclosed a physical address, in order to protect individuals from potential harassment or physical threats at their place of residence. While the Authority recognises that threats and harassment can occur via email, it considers that people have a degree of control over the emails they receive (for example, choosing not to read them), that is not available if the threats or harassment occur at an individual’s doorstep or on the telephone. Accordingly, the Authority considers that privacy principle 4 was not intended to cover the disclosure of an electronic email address.

[13]   With respect, we are of the view that this reasoning is no longer valid. We now live in an era in which people are heavily dependent on email communication, with some being accessible by email 24 hours a day. For this reason, we accept that harassment that occurs by email, and especially in a large volume, has the potential to be as distressing and unpleasant as harassment over the phone or at a physical address. Accordingly, we consider that the disclosure of an email address, for the purposes of encouraging harassment of an identifiable individual, may fall within the scope of privacy principle 4.

Privacy principle 1

[14]   Privacy principle 1 relates to the public disclosure of private facts. Although we have departed from the reasoning in Kirk in relation to principle 4, we agree with the Authority’s finding in that decision that a personal email address amounts to a private fact for the purposes of privacy principle 1.

Highly offensive disclosure

[15]   Under both principles, the disclosure of private information must be highly offensive to an objective reasonable person before the Authority will make a finding that an individual’s privacy has been breached. By way of example, the Authority has found that the following disclosures were “highly offensive”:⁴

• Disclosure of involvement in gangs and crime where individuals believed they would not be identified (HDC and TVWorks⁵)
• Disclosure of personal and confidential medical consultations and procedures without the patient’s informed consent (LM and TVNZ⁶; EF and RadioWorks⁷)
• Disclosure of child’s involvement in a custody dispute (JB and TVNZ⁸).

[16]   In this case, while we acknowledge that the host repeated the email address twice, and said, “send him an email”, we note that his tone was not inflammatory or abusive, and that he did not explicitly encourage listeners to harass the man. Furthermore, we recognise that the listener willingly emailed a talkback radio station, expressing his views in relatively strong and provocative language, so that he could have expected some response from the host or others who disagreed with those views.

[17]   Accordingly, while we accept that the very disclosure of a listener’s personal email address, where the disclosure has not been requested by the listener, would be considered offensive by many people, we are not satisfied that the disclosure on this occasion reached the threshold required for it to be “highly offensive”.

[18]   We therefore find that the broadcast did not breach the listener’s privacy, and we decline to uphold the Standard 3 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
18 March 2011

Appendix

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

1      Justin Marshall’s direct referral to the Authority – 22 October 2010

2      RadioWorks’ response to the Authority – 24 December 2010

¹Decision No. 2007-088

²See, for example, Spring and TRN, Decision No. 2007-108.

³Decision No. 2007-088

⁴See Practice Note: Privacy as a Broadcasting Standard (Broadcasting Standards Authority, June 2010).

⁵Decision No. 2009-088

⁶Decision No. 2007-138

⁷Decision No. 2006-112

⁸Decision No. 2006-090