BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Note: This decision was successfully appealed in the High Court and the decision overturned in favour of the complainant: NH v Radio Virsa [2022] NZHC 2412 [20 September 2022]

Summary  

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

The majority of the Authority has not upheld a privacy complaint about an item on Asliyat responding to petitions made in opposition to Radio Virsa staff, in relation to Gurdwara management and the sale of a Gurdwara property. The host called into question the righteousness of the petitioners as Sikhs, including the complainant’s son, who the host identified as someone at the centre of a family scandal (which included issues of drug addiction and allegations of theft and other ‘bad things’). The complainant submitted the broadcast identified his son and disclosed private information in a way that was highly offensive and damaging to the reputation of his son and son’s family. Based on the information disclosed, the majority of the Authority found the complainant’s son was not identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast. The minority view was that the information disclosed enabled listeners, beyond family and close friends who would reasonably be expected to know about the issues discussed, to identify the complainant’s son, and this information had the quality of private information whether or not all of it was true, such that the disclosure breached the privacy standard.

Not Upheld by Majority: Privacy  

The broadcast

[1]  On 21 September 2020, an item on Asliyat responded to petitions made in opposition to Radio Virsa staff, in relation to Gurdwara management and the sale of a Gurdwara property.

[2]  In response to these petitions, the host called into question the righteousness of the petitioners as Sikhs, including the complainant’s son, who the host identified as someone at the centre of a family scandal (which included issues involving drug addiction and alleged theft and other ‘bad things’):

I know everyone out there, like what their backgrounds are and what they do…many of them are very close to me. It’s alright, I don’t have long hair, and they say I am not a Sikh, but many of them are addicted to drugs, they take [white powder], are they Sikhs? Do they think they are Sikhs?

…

Ok, we admit, they might have 2 inch beards, long hair, a 4 metre long turban… There are many families, like there were [two relatives], one of [them] started a business and he found out that the [other] doesn’t… [details withheld to prevent further identification] and…[he] started taking money out of it. He did many bad things, like… [details withheld] …and much more. When you resort to such activities, you are very likely to get addicted to drugs. After [specified period of time] the other got to know that their whole system is going down.

…

Then they started investigating the leakage, where everything was going…

Now people like this who are signing the petitions and are saying that I am not a Sikh…many of them are such people…

The complaint

[3]  The complainant submitted the broadcast breached the privacy standard by identifying his son and disclosing private information in a way that was highly offensive and damaging to the mental health and reputation of his son and son’s family.

[4]  The complainant noted that while his son had made mistakes and had struggled with drug addiction in the past, ‘with his strong willpower he was able to crush his addiction’, and ‘at the moment he’s making a valuable contribution to the society’.

[5]  The complainant submitted the broadcast also breached the good taste and decency, fairness, accuracy, and discrimination and denigration standards. The original complaint was sent by email of 14 October 2020, to the Authority and to an address intended for the broadcaster. Unfortunately, this address was incorrect, and the broadcaster was not made aware of the complaint within 20 working days of the date of broadcast. On this basis, it refused to accept the complaint, as it is entitled to do pursuant to section 6(2) of the Broadcasting Act 1989.

[6]  Accordingly, the Authority’s jurisdiction is limited to consideration of the complaint about the privacy standard, which the complainant submitted directly to the Authority by email of 14 October 2020, as he was entitled to do pursuant to section 8(1A) of the Broadcasting Act 1989.

[7]  The complainant also made the following points, in light of the broadcaster’s response as set out at [8]:

• It is true the complainant’s son previously struggled with drug addiction.
• The Sikh community knows this fact.
• In the context of the broadcast, this fact became an ‘identifying mark’.
• It is not true the complainant’s son committed theft.
• Therefore, blatantly false allegations were made against a person who was easily identifiable as the complainant’s son.
• The complaint was submitted by the complainant on behalf of his son and son’s family, which comprises multiple generations in one jointly-owned house, and reflects the realities of a typical Indian family.

The broadcaster’s response

[8]  The broadcaster argued it did not breach the privacy standard because:

• ‘If anyone could possibly have guessed at this identity, it is only because that person must already have been aware of the private facts’:
  • ‘There was no mention of what the BSA has called “personal descriptive factors” such as his age, his place of residence, his family members, his appearance, or his specific occupation (beyond business person).’
  • ‘The host…has dozens of family members, hundreds of friends and thousands of acquaintances. Many, many of those people would fall into the category of someone who had a [relative of a particular description] and started a business. That is not capable of identifying anyone in particular.’
  • ‘The other facts are not known beyond a circle of 20-30 people who are close to the complainant’s family.’
  • ‘The petition was signed by 213 people. It was signed on multiple separate sheets, so most of the signatories would not see who else signed it, besides a few others who signed before them on the sheet they signed. A list of all the signatories of the petition is not publicly accessible. A casual listener could not readily discover who had signed it; if they did, they would learn only that the person concerned was one of 213 signatories.’
  • ‘The host took steps to preserve the complainant’s son’s identity. He did not name him. He kept the description very general. He used no identifying details. He used phrases like “when you resort to such activities, you are very likely to get addicted to drugs”. It read as a cautionary tale.’
  • ‘It is accepted that family and close friends of the complainant’s son may have recognised him from the description in the broadcast, if they happened to be listening. But only those who were already familiar with his theft and drug use. In fact, these are the identifying features the complainant relies on to show that his son has been identified. It is only those who already know those facts who could have any idea that the broadcast may have referred to him.’
• ‘In any event, the broadcast cannot be considered a highly offensive publication of a private fact in which there is a reasonable expectation of privacy’:
  • ‘There must be a question as to whether there can be a reasonable expectation of privacy in relation to criminal behaviour, such as theft and the taking of illegal drugs… In Andrews v TVNZ [2009] NZLR 220, for example, the judge…concluded that an expectation of privacy may be lost by reason of culpability, which he said may also be relevant to the assessment of whether a publication is highly offensive, and whether it might be in the public interest… (…the BSA’s guidance on privacy treats criminal activities as matters of public interest.)’.
  • ‘Can it really be said that theft and drug-taking, only [specified period of time] ago, can give rise to a reasonable expectation of privacy?’
  • ‘In all the circumstances…the publication cannot be regarded as highly offensive. The host was defending himself against criticism and was making a moral and religious point…The host took steps not to provide information that would enable listeners who were not already familiar with the matter to identify who he was talking about. The conduct referred to was criminal.’
  • ‘…The complainant’s son is not complaining about the breach of his own privacy. While third party complaints like this are possible, the BSA and the Courts have emphasised that they are to be treated warily. To paraphrase Simon France J in TVWorks Ltd v DuFresne (CIV 2007-485-2060 13 March 2008, HC Wellington, para 12)…”Why is it that the complainant’s son, and his fraudulent and addictive activities, should be the subject of a dispute to which he is not even a party?” Is it fair on him, and proper for the BSA, to embark on a consideration of the fact-sensitive nuances of his activities…’?

The standard and relevant guidelines

[9]  Broadcasters should maintain standards consistent with the privacy of the individual.¹ The privacy standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.²

[10]  Generally, there are three criteria for finding a breach of privacy:

a)  The individual whose privacy has allegedly been interfered with was identifiable.³

b)  The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁴

c)  The disclosure would be considered highly offensive to an objective reasonable person.⁵

Our decision

[11]  Noting the broadcaster’s submission that ‘the complainant’s son is not complaining about the breach of his own privacy’ and that ‘third party’ complaints must be ‘treated warily’, we wish to observe at the outset that we are satisfied this complaint was brought on behalf of the complainant’s son.

[12]  We have read the independent translation of the relevant extract of the broadcast and read the correspondence listed in the Appendix.

[13]  We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of content and the audience’s right to receive it. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that justifies placing a reasonable limit on the right to freedom of expression.

Majority view (Paula Rose QSO, Susie Staley MNZM and Leigh Pearson):

Identification

[14]  The first issue is whether the complainant’s son was ‘identifiable’. The privacy standard applies only to identifiable individuals.⁶

[15]  The test is whether the individual was identifiable beyond family and close friends who would reasonably be expected to know about the matters dealt with in the broadcast.⁷ An individual may be identifiable even if they are not named or shown.⁸ They may also be identifiable even if only a small number of people could recognise them from the information provided, if not all of those people were aware of the full details disclosed in the broadcast.⁹

[16]  The details broadcast about the individual in this case included the following:

• He was a member of a family which signed one of the petitions discussed in the broadcast.
• His family was ‘close’ to the host.
• He was involved in a business activity with another family member [whose relationship to him was specified].
• He was the one who started the relevant business.
• He had a drug addiction.
• He allegedly stole from that business.
• He allegedly did ‘many [other] bad things’, one of which was specified.
• His (business partner) relative got to know about his activities after an identified period of time.

[17]  The complainant has also argued that it can be inferred from the broadcast that the [other relative] involved in his son’s business did not work directly in the business. He indicated that this relative in fact has another job and the implications made on this topic provide another identifying feature.

[18]  We the majority appreciate this situation was distressing for the complainant’s son and son’s family, and that they have been acutely affected by the broadcast. However, after giving careful consideration to the combination of facts disclosed in this broadcast, we are unable to conclude that the complainant’s son was identifiable beyond family and close friends who would reasonably be expected to know about the matters dealt with in the broadcast:

• Listeners were not provided with the family name, nature of their business or location of residence.
• While the host’s name and status as ‘very close’ to the family were available to listeners, Radio Virsa has argued the host has ‘dozens of family members, hundreds of friends and thousands of acquaintances’, many of whom ‘would fall into the category of someone who had a [relative of a particular description] and started a business’.
• Issues of drug addiction, the associated ‘bad’ behaviour and scandal/dispute within family businesses are not unique in New Zealand society. We consider they are also unlikely to be unique in the Sikh community at which this broadcast was targeted.

[19]  In the majority’s view, this case is distinguishable from previous decisions of the Authority where it has determined that, while only a small number of people may have been able to recognise the complainant from the information provided, not all of those people were aware of the full details disclosed in the broadcast.¹⁰ In those cases, the individuals were identifiable, to a small group, based on genuinely unusual or distinguishing features (eg an unusual relationship or distinctive background sounds). In this case, none of the potentially identifying features can be considered so unique as to clearly identify the complainant’s son (even to a small group). In our view, while the facts disclosed may match the son’s circumstances, they are broad enough to match the circumstances of others as well.

[20]  Accordingly, on the basis the complainant’s son was not ‘identifiable’, the majority finds no breach of the privacy standard.

Minority view (Judge Bill Hastings):

Identification

[21]  I, the minority, agree with the facts and general principles which have been expressed by the majority regarding identification. It is in the application of those principles to the facts of this case that we diverge.

[22]  The complainant said the fact of his son’s past drug addiction was known in the community. In my view, this was a significant identifying feature. In combination with some of the other features disclosed, such as his ‘close’ relationship to the host, his family’s involvement with the petition¹¹ and his business arrangements, I consider this would have enabled at least some listeners from the Sikh community in Auckland to identify the complainant’s son.

[23]  In finding the complainant’s son was identifiable I was also influenced by the following:

• The complainant himself was made aware of this broadcast because he was ‘told by others’ (including his sister) who ‘were…shocked as they could straight away identify and understand who [the host] was talking about’, on the basis of the information disclosed.
• The broadcaster itself has conceded, ‘family and close friends of the complainant’s son may have recognised him from the description in the broadcast…[b]ut only those who were already familiar with his theft and drug use’.

[24]  The broadcaster’s argument that those who might recognise the complainant’s son would already be familiar with his ‘theft and drug use’ does not recognise that other matters were disclosed. Given the scope of information broadcast, I consider it likely that at least some of those who could identify the complainant’s son, would have learnt additional details of which they were not previously aware.

[25]  Therefore in my view, the first criterion, that the complainant’s son was ‘identifiable’ beyond family and close friends who would reasonably be expected to know about the issues discussed in the broadcast, was met.

Reasonable expectation of privacy

[26]  The next issue is whether the broadcast disclosed information about which the complainant’s son had a reasonable expectation of privacy.

[27]  Given the complainant says the community knew about his son’s drug addiction, it is unlikely he had a reasonable expectation of privacy in relation to this particular fact. However, he had a reasonable expectation of privacy in relation to the allegations that he:

• stole from his business
• did ‘many [other] bad things’, one of which was specified.

[28]  A person who, as the complainant submitted, has worked to overcome his addiction and start ‘making a valuable contribution to the society’ could reasonably expect not to have such matters disclosed on air.

[29]  Given the complainant indicated the allegations were untrue, this raises the issue of whether false information can constitute ‘private material’ as envisaged by the privacy standard. The Authority has considered this issue before,¹² and determined it is the quality of the information about a person, rather than its veracity, which determines whether or not it is private. Given how the allegations above may reflect upon the complainant’s son, I consider they contain the requisite private quality.

[30]  Therefore in my view, the second criterion, that the broadcast disclosed private information, was met.

Highly offensive disclosure

[31]  The third issue is whether the disclosure would be highly offensive to an objective reasonable person in the position of the complainant’s son. The disclosure of private facts is likely to be highly offensive where:¹³

• it is done for the purpose of encouraging harassment
• the material is particularly embarrassing, sensitive or traumatic, or has the potential to impact negatively on reputation
• the person is particularly vulnerable
• the broadcast is exploitative or gratuitous
• the person concerned has made efforts to protect his or her privacy, or has not consented to the broadcast.

[32]  In my view, the disclosure of allegations of theft, alleged involvement in a named ‘bad’ activity, and the allegation about ‘many [other] bad things’, attributed to the complainant’s son, was highly sensitive and had significant potential to impact negatively on his reputation and that of his family. The complainant’s son did not consent to the broadcast of this information.

[33]  The complainant has suggested his son was also vulnerable given his past addiction. In these circumstances, further negative disclosures (including some alleged to be false) could undermine the progress he had made. The complainant has confirmed this broadcast took a serious toll on his son’s and son’s family’s mental health and reputation. Any alleged culpability, by reason of past addiction or allegations of theft and involvement in other ‘bad things’, does not diminish this impact.

[34]  The broadcaster could have made its ‘moral and religious point’ without disclosing this information and risking such harm to the complainant’s son and son’s family.

[35]  Accordingly, the disclosure of this information would be considered highly offensive to an objective reasonable person in the complainant’s son’s position.

[36]  Therefore in my view, the three criteria for a breach of privacy were met in this case.

Defence of public interest

[37]  Having found a breach of the complainant’s son’s privacy, the final step for the minority is to consider whether any defences were available to the broadcaster.

[38]  The broadcaster suggested that even if the complainant’s son was identifiable, the ‘criminal’ nature of the private information about him was of legitimate public interest.

[39]  Our guidance on privacy states ‘Matters of legitimate public interest may include matters such as: criminal matters, including exposing or detecting crime’.¹⁴ In my view, apparently unfounded allegations about, and the shaming of, someone who is successfully recovering from drug addiction, do not fall into this category.

[40]  In my view, the breach of privacy and potential for harm in this case is significant. Refraining from disclosing sensitive private information about the complainant’s son would not have detracted from any public interest in the broadcast.

Freedom of expression versus harm

[41]  For the above reasons I, the minority, am satisfied upholding this complaint would have placed a reasonable and justified limit on the right to freedom of expression. In my view, the potential harm to the privacy interests of the complainant’s son and son’s family outweighed the broadcaster’s right to make apparently unfounded allegations and unnecessary disclosures. The broadcaster’s moral and religious point could have been made without disclosing sensitive private information at the expense of the complainant’s son and son’s family.

[42]  On this basis I, the minority, find the broadcast breached the privacy standard.

Conclusion

[43]  In conclusion, while there is agreement amongst us regarding the principles that govern our decision, there is a difference in position with respect to the application of these principles to this specific situation. As the majority of the Authority members have found the broadcast did not breach the privacy standard, the complaint is not upheld.

For the above reasons, the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

29 June 2021

Appendix

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

1  NH’s original complaint – 21 September 2020

2  Translation of the relevant extract of the broadcast – 26 February 2021

3  Radio Virsa’s response to the privacy complaint – 23 March 2021

4  NH’s final comments – 6 April 2021

5  Radio Virsa’s final comments – 12 April 2021

¹ Standard 10 of the Radio Code of Broadcasting Practice
² Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
³ Guideline 10a
⁴ Guideline 10c
⁵ Guideline 10b
⁶ Guideline 10a
⁷ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
⁸ As above
⁹ JN and MediaWorks Radio Ltd, Decision No. 2017-053; BL and MediaWorks Radio Ltd, Decision No. 2017-025
¹⁰ JN and MediaWorks Radio Ltd, Decision No. 2017-053; BL and MediaWorks Radio Ltd, Decision No. 2017-025
¹¹ While the broadcaster has argued that a casual listener could not readily discover who signed the petition, it represented an organised collective protest by ideologically-aligned members of the small Sikh community, rather than a public petition that could be expected to be made up of signatories from more diverse backgrounds/interests.
¹² Hill and Radio One, Decision No. 2013-074 at [12] - [15]; and Singh and Radio Virsa, Decision No. 2017-001 at [55]
¹³ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
¹⁴ Guidance: Privacy, 8.2, Broadcasting Standards in New Zealand Codebook, page 63