BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Coromandel FM – news item inaccurately reported that fire fighter was charged with drunk driving causing death – privacy of fire fighter

Findings
(1) Unsatisfactory complaints procedure – warning 

(2) Principle 8 – relevant

(3) Privacy Principles (i) and (ii)– facts inaccurate, not private – no uphold

 This headnote does not form part of the decision.

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Summary

A news story broadcast more than once during the morning of 11 April 2000 on Coromandel FM reported that a named Morrinsville fire fighter had been charged with drunk driving causing death.

MM, the fire fighter’s wife, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached the fire fighter’s privacy by disclosing incorrect information about the offence he had been charged with. MM reported that the man had in fact been charged with careless driving causing death. She also reported that she had been provided with incorrect information about the source of the news item by a staff member at Coromandel FM.

In its response, Coromandel FM, the broadcaster acknowledged that it had reported the item inaccurately and that MM had been provided with inaccurate information about the report’s source. However, it said that it believed that it had acted appropriately and quickly in response to the errors which had been made.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have listened to tapes supplied by Coromandel FM of both the item complained about and the broadcaster’s retraction. The tapes indicate that the item was broadcast at 7.30am and 8.30am, and that the retraction was broadcast at 9.00am and 2.00pm that day. The members have also have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

A news story broadcast more than once during the morning of 11 April 2000 on Coromandel FM reported that a named Morrinsville fire fighter had been charged with drunk driving causing death. According to the report, the fire fighter had been driving a water truck which crashed killing his passenger, who was also a fire fighter. MM, the driver’s wife, telephoned the station to complain that inaccurate information about the charge had been broadcast. She was advised that a police officer had been the source of the incorrect information.

Coromandel FM advised that it broadcast a retraction of the story at 9.00am, 12.00pm, 2.00pm and 5.00pm that day.

MM complained to the Authority that the broadcast breached the fire fighter’s privacy, by broadcasting incorrect information. She also complained that she was misinformed about the source of the incorrect information by the station.

In its response, Coromandel FM acknowledged that it had reported the item inaccurately during its 7.30am and 8.30am news reports, and that MM had been provided with inaccurate information about the report’s source. It explained that the error in attribution of the source of the item was caused by its news editor.

Coromandel FM said that it believed its initial information had been correct, but when it became aware of the error on the day of the original broadcast it had broadcast a retraction. It said that it believed it acted appropriately and quickly. It also said that it advised MM that it regretted broadcasting incorrect details, and that the impression of the employee who spoke to her was that she was "satisfied with [the employee’s] actions although she was annoyed with the circumstances".

Finally, Coromandel FM said:

We believe the systems we have in place are adequate to ensure that we are professional and accurate and regret that this miscommunication occurred. We have reviewed our procedures since and have taken steps to ensure that further checks are in place to prevent a future occurrence.

In a reply to Coromandel FM’s response, MM said that, in addition to the 7.30am and 8.30am broadcasts, the item was also repeated that day at both 9.30am and 10.30am. She strongly disputed Coromandel FM’s contention that a retraction of the item had been made at the times advised. She asked:

How is that possible when I never made my first call until 10.39am?

She maintained that there was only one retraction, broadcast at 2.00pm.

In conclusion, MM wrote:

This news broadcast has caused upset and stress to the deceased’s family, my family and has been an insult to the New Zealand Fire Service.

In its response to MM’s reply, Coromandel FM denied that it had broadcast the item at 9.30 or 10.30 am since it did not carry news items at those times, and reiterated that the retraction was made at the times advised. It said that it had "received a call well before 9.00am bringing [its] attention to the matter and [it] acted according to our procedures and dealt with the situation quickly."

In relation to its procedures for dealing with complaints, Coromandel FM said:

Coromandel FM has procedures in place to deal with matters such as this. All staff are aware of these procedures and the situation was dealt with promptly.

As to the substance of the privacy complaint, Coromandel FM argued that it had not breached the fire fighter’s privacy by naming him, as the incident was already a public fact which had been reported in the Waikato Times that day.

In her final comment, MM reiterated her contention that the item had been broadcast at 9.30am and 10.30am. In relation to the retraction, she maintained that this was only broadcast at 2.00pm and asked:

If [Coromandel FM] is adamant about when the retraction was aired, why haven’t they got it all on tapes?

In relation to Coromandel FM’s comment about the item being in the Waikato Times, MM pointed out that in that report, the item had been correctly reported, commenting "there is a big difference between careless and drunken."

The Authority’s Findings

The Authority begins by recording that it was not helped in its deliberations by the unsatisfactory way the complaint was dealt with by Coromandel FM. Neither the complainant nor the Authority received any response from Coromandel FM which addressed the privacy complaint made by the complainant. What was provided was merely a chronology of the events which led to the complaint, and which followed after the complaint was made. As to the chronology, the Authority notes that there are several apparent discrepancies between the parties’ versions of events. As the Authority’s findings do not require the Authority to prefer one version over the other on this occasion, it does no more than note this divergence.

The Authority reminds Coromandel FM that it is required to have in place a proper procedure for dealing with complaints. This principle is set out in s.5(a) of the Broadcasting Act. In the Authority’s view, it is beyond question that a proper procedure must include responding to alleged breaches of broadcasting standards, including an allegation about a breach of privacy.

The Authority also records its concern about the tapes of the broadcasts which it was provided with by Coromandel FM. These tapes did not contain all the items which Coromandel FM allege were broadcast. Principle 8 of the Radio Code of Broadcasting Practice requires broadcasters to be able to provide copies of all broadcast news and current affairs for a period of 35 days after the broadcast. The Authority reminds the broadcaster of its obligations under Principle 8.

Turning to the substance of the complaint, the Authority begins by noting that this complaint was made directly to the Authority under s.8(1)(c) of the Broadcasting Act. The complainant was advised by the Authority that a complaint which canvassed the more general broadcasting standards, relating to such matters as fairness and accuracy, could also be made in relation to this matter. It also advised that such a complaint would need to be made to the broadcaster, in the first instance.

The complainant did not make a complaint alleging breaches of broadcasting standards other than the complaint relating to individual privacy.

Therefore, the only matter for the Authority is the complaint relating to privacy. However, the Authority records that, had a complaint been made under Principle 6 of the Radio Code which requires factual accuracy in news programmes, it would have been minded to uphold it, as it was admitted by the broadcaster that the broadcast complained about was not truthful or accurate.

The question which remains for the Authority is whether there was a breach of privacy on this occasion. The Authority applies the Privacy Principles which it has enumerated in an Advisory Opinion when determining complaints about individual privacy. The relevant principles on this occasion are Privacy Principles (i) and (ii), which read:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

In order to determine whether there has been a breach of Privacy Principle (i), there must have been a disclosure of offensive private facts. In this case, what was broadcast was inaccurate particulars about a charge against a fire fighter. If the details of the charge had been reported correctly, it would have been clear that the facts were not private facts, as they were a matter of public record. Those public facts, being information about current charges, were public facts which had not become private, and thus did not fall within the ambit of Privacy Principle (ii).

In Decision No. 1994-056, the Authority concluded that an untruthful public "fact" does not become a private fact, simply because of the inaccuracy. On this occasion, the Authority is unable to reach a different conclusion about the nature of the information broadcast based only on the inaccuracy of the reported charge. Accordingly, the Authority declines to uphold the privacy complaint.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
27 July 2000

Appendix

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

1.    MM’s Formal Complaint to the Broadcasting Standards Authority – 3 May 2000
2.    Coromandel FM’s Response to the Formal Complaint – 17 May 2000
3.    MM’s reply to the Response – 1 June 2000
4.    Coromandel FM’s Response to the Reply – 9 June 2000
5.    MM’s Final Comment – 16 June 2000