Mitchell and NZME Radio Ltd - 2016-027 (3 November 2016)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose
- David Mitchell
ProgrammeHauraki Breakfast Show
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
During the Hauraki Breakfast Show Deborah Stokes, mother of New Zealand-born English cricketer Ben Stokes, rang the studio to complain about what she considered to be unfair comments made by the hosts regarding her son, and to defend him. Mrs Stokes asked to speak with someone off air. Host Matt Heath assured Mrs Stokes she was off air, when in fact the conversation was being broadcast live on air. The Authority upheld a complaint that the broadcast breached Mrs Stokes’ privacy. Mrs Stokes had a reasonable expectation that, in the circumstances, her phone call and the conversation would remain private. The recording and broadcast of her conversation, in circumstances where she had expressly asked for privacy was objectionable and would be highly offensive to an objective reasonable person in the complainant’s position.
Order: Section 13(1)(a) broadcast statement
 During the Hauraki Breakfast Show, Deborah Stokes, mother of New Zealand-born English cricketer Ben Stokes, rang the studio to complain about what she considered to be unfair comments made by the hosts regarding her son, and to defend him. Mrs Stokes asked to speak with someone off air. Host Matt Heath assured Mrs Stokes that her phone call was off air, when in fact the conversation was being broadcast live on air.
 David Mitchell complained directly to the Authority that the broadcast breached Mrs Stokes’ privacy. The Authority also received a complaint from Mrs Stokes about the same broadcast. That complaint is the subject of a separate decision, Stokes and NZME Radio Ltd, Decision No. 2016-045.
 The issue is whether the broadcast breached the privacy standard as set out in the Radio Code of Broadcasting Practice.1
 The item was broadcast on Radio Hauraki at 7.50am on 4 April 2016. 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 Mrs Stokes’ privacy?
 The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.
 Guideline 10b to the privacy standard states that 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.
 The phone call between Mrs Stokes and the radio hosts began as follows:
Host: Good morning. Have you got a suit for me?
Mrs Stokes: Ah no, I wanted to speak to someone off air if I could, please.
Host: You want to speak to somebody off air?
Mrs Stokes: Yes.
Host: Okay, you’re off air.
Mrs Stokes: Oh, I am?
Mrs Stokes: Oh, okay, that’s fine...
 Mrs Stokes said that she was calling to ‘put forward [her] thoughts’ in regards to how the hosts of the Hauraki Breakfast Show had ‘bagged’ the English cricketer Ben Stokes. She said:
[The hosts] have never met him, they don’t know him, and maybe if they had tempered their inappropriate remarks and name-calling with some quotes of some supportive Tweets he’s received from some very well-known cricketers and just your ordinary Joe Bloggs cricket supporters, then maybe...
 The host, Matt Heath, interrupted Ms Stokes at this point to say, ‘Could you slow down a bit, I’m just writing this complaint down, because I’ve got to get it through to Matt and Jeremy’.
 Mrs Stokes continued to articulate the concerns she had about the hosts’ comments about her son and the impact the comments had on her and her family.
The parties’ submissions
 Mr Mitchell considered the broadcast breached Mrs Stokes’ privacy because she was interviewed live on air, after being told she was off air. He argued that during the call, listeners could hear the ‘glee and [condescension] of the hosts as they kept up the charade’. Mr Mitchell considered that by making the call public, the hosts gave an unfair impression of Mrs Stokes and he felt that listeners were invited to laugh at Mrs Stokes’ expense.
 Mr Mitchell also took issue with what he considered to be the hosts’ ‘blatant disregard’ for their actions, saying ‘a simple apology would’ve sufficed but to go overseas (Las Vegas) and gloat about the incident on [Facebook] showed they weren’t being reprimanded as stated by the radio station and also showed [they] didn’t care about the ramifications of their actions’.
 NZME accepted that Mrs Stokes was identifiable. However, it noted that Mrs Stokes only identified herself one minute and 24 seconds into the conversation. NZME explained that the hosts thought she was a normal caller in a run of live calls, which were put straight through to the hosts, for a competition which was occurring at the time.
 NZME also accepted that Mrs Stokes was told at the start of the broadcast she was not on air and so continued the conversation with that assurance. It accepted that it was wrong for the hosts to inform Mrs Stokes she was off air when she was not.
 However, NZME argued it was debatable a) whether any private information about Mrs Stokes was broadcast and b) whether she had an expectation of privacy when calling a radio studio hotline and not a business line. It considered that the subject matter of the phone call – Mrs Stokes’ correction of what she considered to be unfair comments about her son and her request that negative comments be tempered with positive ones – was ‘a topical matter in the public domain’ and not inherently private.
 NZME argued the present situation was distinguishable from cases where the hosts initiated the telephone call and told the complainant they were not on air, which showed pre-meditation, whereas in this case it was Mrs Stokes who initiated the phone call. The broadcaster submitted that Mrs Stokes became an inadvertent participant in a ‘reverse prank call’, and in the context of an entertainment breakfast show, such pranks are not uncommon. NZME further argued that while the hosts did not intend to encourage harassment of Mrs Stokes, she did become the subject of the joke, and it regretted the emotional toll this may have taken. NZME considered that subsequent domestic and international news reports inflamed the situation, which it said was out of its control.
 In its subsequent response to Mrs Stokes’ own privacy complaint, NZME accepted that the broadcast constituted a breach of her privacy (and was also unfair to her).
Was Mrs Stokes identifiable?
 When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.2
 We agree with the broadcaster that Mrs Stokes was clearly identifiable. She identified herself by giving her full name and as being the mother of ‘English cricketer Ben Stokes’. She was identifiable regardless of whether this occurred at the beginning of the segment or part-way through the conversation.
Did Mrs Stokes have a reasonable expectation of privacy in relation to the broadcast material?
 The next question is whether there was a reasonable expectation of privacy in relation to the information or material disclosed. Factors to consider include, but are not limited to, whether the information or material is not in the public domain; and/or it is sensitive in nature; and/or the individual would reasonably expect it would not be disclosed.3
 During the broadcast, Mrs Stokes’ full name was disclosed, and the fact she is the mother of New Zealand-born English cricketer Ben Stokes. It was disclosed that she has family members in New Zealand and by implication, also lives in New Zealand herself. The phone call also revealed her opinion about what the hosts were saying about her son, and that family members were contacting her about the coverage and the hosts’ comments.
 This information was personal information about Mrs Stokes. Some of it may have already been in the public domain (for example, her name and the fact she is Ben Stokes’ mother), and therefore may not attract a reasonable expectation of privacy. It is also arguable whether the disclosure of this information in itself would be considered highly offensive.
 Regardless, in our view it is not the content of the conversation in this case that is important, but the context. The real issue here is that Mrs Stokes’ phone call was captured and broadcast at all, when she had expressly asked for privacy (by asking to speak off air). We think it is clear in these circumstances that the fact of the phone call and the conversation having taken place, and the recording of that conversation, was information about which Mrs Stokes had a reasonable expectation of privacy. In our view the conversation itself was in this situation private information about which Mrs Stokes had an expectation of privacy.
 This situation is comparable in some ways with instances of covert recording or filming, which are generally regarded as a serious intrusion into an individual’s expectation of privacy. In those cases, an individual has no knowledge or indication that what they are doing or saying is being captured for the purpose of being broadcast publicly on either television or radio. Similarly, in this case Mrs Stokes had no idea that her conversation with Mr Heath was being broadcast live, and did not consent to this occurring.
 Therefore, we find that the broadcast interfered with Mrs Stokes’ privacy interests and disclosed information about which she had a reasonable expectation of privacy.
 We are not convinced by NZME’s argument that because Mrs Stokes called a radio studio hotline, rather than a business line, she may have had a lesser expectation of privacy. Mrs Stokes was calling a radio station to complain, and expressly requested to speak to someone off air. This sufficiently indicated to the broadcaster that Mrs Stokes wished to have a private conversation with a staff member, rather than with the studio or programme hosts, and this was a reasonable request in our view.
Was the interference with Mrs Stokes’ reasonable expectation of privacy highly offensive?
 The next question is whether the disclosure of information, about which Mrs Stokes had a reasonable expectation of privacy, was highly offensive. The test is whether the interference with an individual’s privacy interests would be highly offensive to an objective reasonable person in the position of the individual whose privacy has allegedly been breached.4
 The means by which private material is gathered affects the offensiveness of the intrusion. For example, it may be highly offensive to broadcast private material gathered by surreptitious, deceptive or dishonest means.5 The disclosure of private information is also likely to be highly offensive where the person concerned has made efforts to protect his or her privacy, or has not consented to the broadcast.6
 For the reasons we have already outlined, we are satisfied that the recording and broadcast of Mrs Stokes’ conversation in circumstances where she had asked for privacy would be highly offensive to a reasonable person in her position. Mrs Stokes twice clearly indicated to Mr Heath that she wished to speak to someone off air, and was deceived into thinking the call was off air and therefore private. Her expectation was likely that the content of the conversation would remain private, or would only be known by her and relevant Radio Hauraki staff for the purposes of addressing her concerns. The hosts then proceeded to record and broadcast the conversation, meaning Mrs Stokes was deprived of control or choice over what happened next; she lost the opportunity to discontinue the conversation, or to modify what she chose to say, or how she said it. Most, if not all, people in Mrs Stokes’ position would find this objectionable.
 Furthermore, while broadcasting the conversation on air, the host also appeared to exploit and make light of Mrs Stokes’ concerns about her son (including by deliberately misinterpreting her complaint and continuing to talk about cricket). NZME suggested in this respect that Mrs Stokes became an inadvertent participant in a ‘reverse prank call’, and such pranks are not uncommon in the context of an entertainment breakfast show. However, the right to privacy is a fundamental right which society values and respects.7 It is generally unacceptable to interfere with an identifiable individual’s privacy interests merely in the name of entertainment, regardless of the programme genre. This broadcast clearly had the potential to be humiliating or distressing for Mrs Stokes and in our view this outweighed any perceived entertainment value in the broadcast.
 We also consider it was a reasonably foreseeable consequence that a broadcast of this nature, featuring the mother of an international cricket player, would attract media coverage. While we do not rely on this point in finding that the ‘highly offensive’ test has been met, this coverage had the potential to compound the embarrassment and alleged breach of Mrs Stokes’ privacy, whether or not NZME could itself control this coverage. At this point, we are concerned with whether the disclosure in the broadcast itself was highly offensive, rather than events which occurred after the broadcast. However, it may be relevant in our consideration of what, if any, orders to impose.8
Conclusion on privacy
 We do not consider there was any level of public interest in this broadcast which outweighed Mrs Stokes’ privacy interests. For the reasons outlined above, we find that the broadcast of the conversation between Mrs Stokes and Mr Heath amounted to a highly offensive disclosure of information in which Mrs Stokes had a reasonable expectation of privacy. We therefore uphold the complaint.
For the above reasons the Authority upholds the complaint that the broadcast by NZME Radio Ltd of the Hauraki Breakfast Show on 4 April 2016 breached Standard 10 of the Radio Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
Submissions on orders
 NZME submitted that the orders it proposed to remedy Mrs Stokes’ complaint were also suitable for, and would properly address, this complaint. It considered that if the position were otherwise, then a broadcaster would be at risk of multiple penalties in respect of the same matter depending on how many members of the public chose to complain.
 We did not receive any submissions from the complainant in relation to orders.
Authority’s decision on orders
 This complaint deals with a breach of privacy. Where a complaint is upheld the Authority may make orders including, in the case of a privacy breach, directing the broadcaster to pay compensation to the person whose privacy has been breached, to publish a statement, and/or to pay costs to the Crown.
 We have also received and upheld a complaint from Mrs Stokes about the same matter, and have addressed these potential awards in our decision Stokes and NZME Radio Ltd.9 We do not intend to make any additional orders here, save as provided in paragraph  below.
 We consider it is appropriate that the broadcaster publicly acknowledges this complaint in the broadcast statement ordered in Stokes and NZME Radio Ltd.10 That statement must refer to both this, and Mrs Stokes’, complaint and include a comprehensive summary of the decisions. Our standard practice is for the wording of the statement to be drafted by the broadcaster and approved by the Authority.
Pursuant to section 13(1)(a) of the Act, the Authority orders NZME Radio Ltd to broadcast a statement. The statement shall:
- be broadcast within one month of the date of this decision
- be broadcast during the Hauraki Breakfast Show
- be broadcast at a time and on a date to be approved by the Authority
- on the same day it is broadcast, be published also on the Radio Hauraki web page, and remain visible on that page for one month
- refer both to this decision and to the Authority’s decision Stokes and NZME Radio Ltd, Decision No. 2016-045
- contain a comprehensive summary of the upheld aspects of both this decision and the Authority’s decision Stokes and NZME Radio Ltd, Decision No. 2016-045.
The Authority draws the broadcaster’s attention to the requirement 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
3 November 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 David Mitchell’s direct privacy complaint to the Authority – 9 April 2016
2 NZME Radio’s response to the Authority – 10 May 2016
3 Mr Mitchell’s final comment – 14 May 2016
4 NZME Radio’s final comment – 18 May 2016
5 NZME Radio’s submissions on the provisional decision and orders – 4 October 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/overview
2 Guidance: Privacy, 2.1 (for example, see Moore and TVWorks Ltd, 2009-036)
3 Guideline 10c
4 Guideline 10b. See also Andrews v TVNZ, HC Auckland, 15 December 2006, CIV 2004-404-3536
5 Guidance: Privacy, 6.1
6 Guidance: Privacy, 6.2
7 Commentary on the standards: Privacy, Broadcasting Standards in New Zealand Codebook at page 21
8 We consider the action taken by the broadcaster subsequent to the item in Stokes and NZME Radio Ltd, Decision No. 2016-045.
10 As above