BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
Apna Ne Bana Di Jodi – personal ads included complainant’s age, gender and phone number – allegedly in breach of privacy

Findings
Standard 3 (privacy) – telephone number disclosed in a highly offensive manner – resulted in harassment of complainant – upheld

Order
Section 13(1)(d) – payment of $500 to the complainant for breach of privacy

This headnote does not form part of the decision.

Broadcast

[1]   During Apna Ne Bana Di Jodi, broadcast on APNA 990 at around 11.30am on 19 April 2010, a host read out a number of “matchmaking messages” which included people’s ages, gender, ethnicity or religion, and phone number. One of the messages stated:

46-year-old Hindu male, New Zealand citizen, [mobile phone number].

Complaint

[2]   NJ lodged a complaint with APNA Networks Ltd, the broadcaster, alleging that the broadcast of his phone number had breached his privacy. He maintained that he had not given the broadcaster permission to broadcast his details and did not know how it had got his mobile number.
Standards

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

Standard 3 Privacy

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

Privacy principle 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 Complainant

[4]   APNA responded to the complainant saying that, since he had made it aware of his situation, it had stopped broadcasting messages on Apna Ne Bana Di Jodi which came from emails to prevent similar cases in future. It said that it now only accepted messages from mobiles to its “text platform”.
Referral to the Authority

[5]   Dissatisfied with the broadcaster’s informal response, and having received no formal decision from APNA, the complainant referred his complaint to the Authority under section 8(1C) of the Broadcasting Act 1989. He maintained that the programme breached broadcasting standards because it disclosed his mobile number. The complainant said that he had received, and was still receiving, numerous phone calls and text messages.

Broadcaster’s Response to the Authority

[6]   APNA said that, after investigating, it discovered that an email had been sent to its website asking for the attached message to be broadcast on the programme. Subsequently, the host broadcast the message including the complainant’s phone number.

[7]   The broadcaster said that to prevent similar situations occurring in the future it had stopped the email service for the programme and now only accepted letters and text messages on its text platform “with land line contact a priority”. It said that it also confirmed with the person whose details were to be broadcast if there was any doubt about whether the person had authorised this.

Complainant’s Final Comment

[8]   The complainant reiterated that he was dissatisfied with the way APNA had dealt with his concerns and that he believed the broadcast was a serious breach of his privacy. He requested that APNA be ordered to pay the maximum fine and that he receive the maximum level of compensation.

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.

Procedural Matters

[10]   We note that APNA failed to respond to NJ’s formal complaint within the 20 working day timeframe required under the Broadcasting Act 1989. Further, it was only after NJ pursued the issue with the broadcaster that he received a brief email response. This response did not contain any decision on whether standards had been breached, and it did not advise the complainant that he had the right to refer his complaint to the Authority if he was dissatisfied as required by section 57(3) of the Broadcasting Act.

[11]   We remind APNA of its statutory obligations under the Broadcasting Act 1989 to have a proper procedure for dealing with formal complaints.

Standard 3 (privacy)

[12]   Standard 3 requires broadcasters to respect the privacy of the individual. Privacy principle 4 states that 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.

[13]   The Authority has noted on previous occasions that this principle 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.¹ However, the Advisory Opinion which contains the Authority’s Privacy Principles notes that the principles “may well require elaboration and refinement when applied to a complaint”.² We consider that this situation requires such an elaboration of privacy principle 4.

[14]   On this occasion, the broadcaster did not disclose NJ’s telephone number for the purposes of encouraging harassment. However, the telephone number was disclosed by the broadcaster within a matchmaking programme – designed specifically for the purpose of eliciting responses – as a result of the unsatisfactory processes employed by the broadcaster. In other words, the disclosure of the telephone number was not intended to result in harassment, but this occurred as a foreseeable consequence of the broadcaster’s carelessness.

[15]   We consider that the application of privacy principle 4 should be extended to situations where the disclosure of a name, address or telephone number has resulted in the harassment of an individual, due to the careless or negligent actions of a broadcaster.

[16]   The next task for us is to decide whether the disclosure of NJ’s telephone number would be highly offensive to an objective reasonable person. In our view, disclosing an individual’s personal mobile phone number without their consent, and incorrectly suggesting that they had provided it for the purposes of matchmaking, would be viewed by an objective reasonable person as highly offensive. This is especially so when considering that NJ was in a relationship.

[17]   Having reached the conclusion that the broadcast breached NJ’s privacy, we must consider whether to uphold the complaint as a breach of Standard 3.

[18]   We acknowledge that upholding the Standard 3 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Hastings District Council and TVWorks,³ the Authority determined that upholding a complaint under Standard 3 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[19]   We must now consider whether it would be a reasonable and proportionate limit on APNA’s freedom of expression to uphold a breach of the privacy standard on this occasion. In our view, it is reasonable to hold broadcasters accountable where poor processes have caused the disclosure of personal details resulting in harassment, even where the broadcaster did not intend those consequences. Furthermore, the broadcaster incorrectly implied that NJ was looking for a relationship, making the disclosure of the telephone number highly offensive. We consider that upholding the complaint in these circumstances is consistent with the objective of the privacy standard, which is to protect the privacy of individuals.

[20]   In these circumstances, we find that upholding the complaint places a justified and reasonable limit on APNA’s freedom of expression. We therefore uphold the complaint that the broadcast breached Standard 3.

Name Suppression

[21]   Given that we have upheld the privacy complaint, and taking into account the nature of the broadcast, we find that it is appropriate that the complainant’s name should be withheld from the decision.

For the above reasons the Authority upholds the complaint that the broadcast by APNA Networks Ltd of Apna Ne Bana Di Jodi on 19 April 2010 breached Standard 3 of the Radio Code of Broadcasting Practice.

[22]   Having upheld the privacy complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[23]   NJ submitted that APNA should be “fined the maximum penalty” and be ordered to pay the maximum of $5,000 in compensation to him. He also submitted that APNA should be ordered to broadcast an apology.

[24]   Through its lawyers, APNA submitted that it had not intended to offend or cause the complainant any disrepute. It stated that, after this matter had been brought to its attention, it had stopped broadcasting information received on its website and only used the text platform to receive information for broadcast in the Apna Ne Bana Di Jodi programme. APNA said it had recently stopped broadcasting the programme altogether.

[25]   The broadcaster pointed out that it had apologised to NJ by email as soon as the complaint was made to APNA. It said that it had not intended for anyone to be harassed as a result of the broadcast and that it was willing to explain the situation on-air and give a formal apology.

[26]   In these circumstances, APNA submitted that monetary compensation was unnecessary.
Authority’s Decision on Orders

[27]   With respect to APNA’s submissions, we note that most of the material attempted to re-litigate the Authority’s findings and was of little relevance as to what orders, if any, should be imposed.

[28]   In light of the fact that we have suppressed the complainant’s name, and the broadcaster has already personally apologised to NJ, we consider that ordering APNA to broadcast an apology would be inappropriate in the circumstances.

[29]   Turning to the complainant’s submission that APNA should be ordered to pay the “maximum fine”, we note that, while the broadcaster’s processes were unsatisfactory, it has stopped broadcasting information received via its website and, prior to the cessation of Apna Ne Bana Di Jodi, it used a text platform to receive information. In our view, an order of costs to the Crown is not warranted on this occasion.

[30]   However, we are of the view that an order under section 13(1)(d) compensating NJ for the breach of his privacy is justified. In determining the amount, we note that, due to the unsatisfactory processes employed by the broadcaster, NJ was subjected to harassment. However, we also note that this harassment was a product of APNA’s carelessness and that it did not intend for such a result to occur. Further, we consider that the breach of privacy on this occasion was at the lower end of the scale because the broadcast did not disclose any information of a sensitive or personal nature about the complainant.

[31]   Accordingly, we find that an award of compensation in the amount of $500 is appropriate.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders APNA Networks Ltd to pay to the complainant the amount of $500, within one month of the date of this decision, by way of compensation for the breach of his privacy.

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 orders have been complied with.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 November 2010

Appendix

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

1.           NJ’s complaint – 20 April 2010

2.          APNA’s response to the complaint – 19 May 2010

3.          NJ’s referral to the Authority – 24 May 2010

4.          APNA’s response to the Authority – 8 June 2010

5.          NJ’s final comment – 20 June 2010

6.          NJ’s submissions on orders – 25 September 2010

7.          APNA’s submissions on orders – 12 October 2010

¹See, for example, Spring and TRN (Decision No. 2007-108)

²Refer to the second note to the privacy principles in the Appendix to the Radio Code of Broadcasting
Practice

³Decision No. 2009-088