BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An announcer on 95bFM broadcast himself leaving a sexually suggestive message on P’s answerphone, on 10 October 1997 at about 8.45am. P is involved with a community standards lobby group which featured in news reports at the time.

P complained to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that it was an invasion of her privacy to leave such a message on her answerphone and to use the airwaves to deride her.

In its response to the Authority, the station denied that P’s privacy was breached, pointing out that her name was publicly available in another medium at the time. It apologised for the announcer’s role in the matter, and explained that his comments were directed at the group which P represented, and not at her personally. It reported that the announcer had been formally warned that leaving a malicious message was unacceptable behaviour.

For the reasons below, the Authority upholds the complaint that P’s privacy was breached.

Decision

The members of the Authority have listened to a tape of the telephone call, and have read the correspondence (summarised in the Appendix). On this occasion, the Authority determines the complaint without a formal hearing.

At about 8.45am on 10 October 1997 an announcer from 95 bFM telephoned and left a message on P’s private telephone. The message included sexually suggestive noises. The whole sequence was broadcast live.

P complained to the Authority under s.8(1)(c) that the station had failed to maintain standards in its programmes and their presentation that were consistent with her individual privacy. She argued that it was inconsistent with her privacy to leave a sexually suggestive message on her private telephone, and completely inconsistent with her privacy to broadcast the phone call and to use the airwaves to deride her. P sought compensation under s.13(1)(d). She also requested that her name be suppressed in the Authority’s decision.

In its initial response to the complaint, the station maintained that P’s name was public information since she was a spokesperson for a group. It advised that it did not have a recording of the broadcast since it only retained material for thirty days, and by the time it received the complaint, the log had been wiped. The station rejected the complaint that P’s privacy had been breached, pointing to her public profile in connection with a group. The station manager advised that she had conveyed her displeasure to the announcer, and warned him that leaving such a message brought bad publicity to the station.

In her final comment to the Authority, P was able to provide a copy of the tape from her telephone answering machine. A copy was sent to bFM.

In a second response, through its solicitors, the station emphasised that the noises made on the tape were of a humorous and off-the-cuff nature, and were merely a joke. It rejected the privacy complaint on the grounds that P was a public figure because of her role in a community group, and had thereby consented to the attention she received. Referring to privacy principles i) and ii), it maintained that there was no disclosure of private facts. With regard to principle iii), it contended that speaking on an answerphone did not amount to an intrusion into the complainant’s solitude or seclusion, particularly given P’s public role. Turning to principle iv), it argued that no attempt was made to abuse, denigrate or ridicule the complainant, and with respect to principle v) that at no time was the complainant’s name and address given out. It considered that the matter which she was telephoned about was in the public interest, and therefore contended that principle vi) applied. It argued that principle vii) could also be relevant as the complainant had consented to the public attention.

The station suggested that in making the complaint, P demonstrated that she had a political agenda. It was of the view that the complaint was without merit, and that it would be unjust for the Authority to consider imposing sanctions. 95 bFM emphasised that it had taken the complaint seriously and had advised its staff to exercise careful discretion in the future with regard to leaving messages on answerphones. It noted that it had offered P the opportunity to put her group’s views on air, but that offer had been declined. It considered that little else could be offered in the circumstances.

When it deals with privacy complaints, the Authority applies a set of privacy principles which were first enumerated in an Advisory Opinion in 1992, and extended in 1996. The principles were considered by Eichelbaum CJ in the High Court in TV3 v BSA [1995] 2 NZLR 720, where he pointed out that privacy in the Broadcasting Act was not an absolute concept. He said: "The term should receive a fair, large and liberal interpretation." He accepted the Authority’s approach to the issue of privacy, and its application of the principles in the decision which TV3 had appealed.

In the Advisory Opinion, the Authority also makes clear that the principles enunciated are not necessarily the only ones it will apply, that they may require elaboration and refinement when applied to a complaint, and that the specific facts of each complaint are especially important when privacy is an issue.

With respect to the present complaint, the Authority turns first to s.4 of the Broadcasting Act 1989, which provides:

s.4(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with – …

(c) The privacy of the individual;

There are two limbs to the complaint. The first is that broadcasting the fact that someone has received a malicious or obscene telephone call without their consent is obviously an invasion of their right to privacy. It was incontrovertible, P therefore argued, that the live broadcast of the announcer himself making the call and leaving the message constituted an invasion of her privacy.

In addition, P contended that the station failed to maintain standards consistent with her privacy in the manner in which the programme material was gathered. She argued that leaving an obscene message on her family’s answerphone, in the course of trying to get an interview, was not consistent with her, or her family’s, privacy. She also contended that she was named prior to the call being made.

The station’s response to the complaint emphasised the public nature of P’s role as a representative of a community group, and it argued that she had thereby consented to the media attention she received.

In the Authority’s view, the status of the complainant as a member of a community group is immaterial when the incident involved transmitting and broadcasting a malicious telephone call to her private telephone, which was clearly intended to deride and ridicule the recipient. The message itself, the Authority considers, was an unwarranted interference with P’s right to privacy. Further, the transgression was perpetrated on air, in a broadcast to bFM’s listeners. As an additional point, the Authority notes that the station in its final comment denied that the complainant was named. The Authority acknowledges that she was not named on the answerphone message, but accepts the complainant’s submission (which was not denied initially by the broadcaster) that she was named on air prior to the call being made.

The Authority concludes that under the Broadcasting Act, the actions of the broadcaster were culpable, both in the broadcast, and in the manner in which the programme material was gathered. What went to air was an announcer broadcasting himself making a malicious call to P’s answerphone in violation of her right to privacy. In other words, it was the subject matter of the broadcast as well as the broadcast itself which breached s.4(1)(c) of the Broadcasting Act.

Applying the facts to the current privacy principles as well, the Authority finds a breach against privacy principles i) and iv). They 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.

iv)  The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

With respect to privacy principle i), the Authority finds that the receipt of an offensive or malicious telephone call is in itself a private fact. To convey information about such a call without the recipient’s consent is, it considers, a breach of privacy. It finds that such a breach is compounded when the substance and nature of the call is broadcast.

Turning to privacy principle iv), the Authority considers that the broadcast of an announcer making an obscene phone call to a named person, with the clear intention of ridiculing the recipient, is a clear breach of this principle. It was an occasion where the airwaves were used by the announcer to make a personal statement which the Authority finds offensive and intrusive.

The Authority emphasises that its privacy principles are an interpretive tool. As noted above, the Advisory Opinion makes clear that the specific facts of each complaint are especially important when privacy is an issue. On this occasion, the facts lead to the conclusion that a breach occurred.

For the reasons set forth above, the Authority upholds the complaint that P’s privacy was breached in a broadcast on 95bFM at about 8.45am on 10 October 1997.

 Having upheld a complaint, the Authority may make an order under s.13(1) or an order for costs under s.16(4) of the Broadcasting Act 1989. The Authority has sought a submission from the broadcaster on the question of penalty. In its submission, the broadcaster advised that it had disciplined the announcer and had taken strong remedial action to prevent a repeat occurrence. It emphasised its status as a not for profit organisation and its role as a training ground for students intending to enter the broadcasting profession. It repeated that it had apologised to the complainant and that since she was unwilling to accept either a public apology or the offer of air time, there was little more it could do.

The Authority views this transgression as a serious matter. In its view the use of the airwaves in such a personal and offensive manner invites censure. Furthermore, it does not consider that the means of redress offered by the broadcaster – a public apology and the offer of air time – were appropriate to a breach of privacy. Accordingly, it decides that a penalty is in order.

Order

The Authority orders 95bFM to pay, within one month of the date of this decision, costs in the amount of $750.00 to the Crown under s.16(4) of the Broadcasting Act 1989 (as amended in 1996) and, under s.13(1)(d) compensation in the amount of $250.00 to P.

Signed for and on behalf of the Authority

Lyndsay Loates
Member
7 May 1998

Appendix

P’s Complaint to the Broadcasting Standards Authority – 3 November 1997

During the breakfast show on 95bFM on 10 October 1997, at about 8.25am, the host left a message on P’s answerphone which consisted of sounds suggestive of sexual activity. The call was broadcast live.

P complained that the announcer referred to her by name and rang her home telephone number while on air. She wrote:

bFM has clearly failed under s.4(1)(c) to maintain standards in its programmes and their presentation consistent with my individual privacy. It was a breach of privacy to leave a sexually suggestive message on my private answerphone, and completely inconsistent with my privacy to broadcast the phone call and use the public airwaves to deride me. The matter is aggravated by the fact that bFM chose to use public sexual harassment in a way calculated to intimidate and humiliate a private individual who has simply exercised a statutory right of complaint…

She requested that the Authority make a clear statement that this sort of intimidation would not be tolerated by making an appropriate order under s.16(4) and/or s.13(1)(b). She also requested compensation under s.13(1)(d) for the breach of her privacy.

Finally, P requested that her name be withheld in the decision and that the circumstances surrounding the incident not be referred to. She noted that she received three other malicious and obscene phone calls the morning of the broadcast and did not wish to draw herself to the attention of such people again.

95 bFM’s Response to the Broadcasting Standards Authority – 7 January 1998 (received by the Authority on 13 February 1998)

95 bFM responded first that because it did not receive the complaint until 10 October, it did not have a copy of the tape of the broadcast as it only retained material for 30 days.

The station manager advised that she had spoken to the announcer concerned, who denied that he had read P’s telephone number over the air. He admitted to leaving the message on her answerphone, but maintained that this was while a song was playing. He denied that he encouraged listeners to call P. He explained that his comments about narrow-mindedness were directed at the group which made the complaint, and not at P personally.

The station manager reported that she understood that P no longer had a copy of the tape of the phone calls. She accepted that P was distressed by the messages and apologised for the announcer’s role. She wrote:

bFM operates professionally as an alternative youth based radio station but cannot accept responsibility for the actions of its listeners in response to material broadcast.

The station did not believe the announcer breached P’s privacy by broadcasting her name, since it was already in the public arena as a spokesperson for the group she represented.

The station manager informed the Authority that she had conveyed her displeasure to the announcer and formally warned him that leaving a malicious message was unacceptable behaviour and brought bad publicity to the station. She advised that she had offered P’s group the opportunity to have some editorial coverage on the Authority’s decision but that P had declined the offer.

In concluding, the station denied it breached P’s privacy. It pointed out that the announcer used publicly-available information to get her phone number and did not read the number over the air.

P’s Final Comment – 23 February 1998

P expressed her disappointment that bFM had wiped its log by the time the Authority requested a copy of the tape. She pointed out that bFM already knew that she had made a complaint to the police and that they were investigating the telephone call.

She maintained that bFM’s response was largely irrelevant to her complaint. She noted that she did not allege that the station encouraged listeners to call her. P wrote:

Broadcasting (without good reason) the fact that someone has received a malicious or obscene telephone call is obviously an invasion of her privacy. A fortiori, someone who broadcasts himself making such a call to an identified person invades that person’s privacy.

P argued that the Authority did not need to find that the broadcast itself invaded her privacy to find that the station breached s.4(1)(c). She noted that the failure could be in the manner in which programme material is gathered, as affirmed in TV3 Network Services Ltd v BSA [1995] 2 NZLR 720 (HC). P maintained that leaving an obscene message on her family’s answerphone was not consistent with her privacy. She noted two cases in which it was held that malicious telephone calls were considered an invasion of privacy. She also pointed out that an obscene call was also an offence under the criminal law.

P enclosed a tape containing the telephone messages.

Further Correspondence

In a letter dated 3 April 1998, the broadcaster, through its solicitor, responded to P’s final comment.

It acknowledged that there was a broadcast on air of a call to the complainant’s telephone at about 8.25am on 10 October 1997. It wrote:

When the answerphone came on, Mikey Havoc left a message during which other members in the studio made "noises" which the complainant later found offensive – such "noises" being of a humorous and off-the-cuff nature.

The station insisted that it did not intend to abuse, denigrate or ridicule the complainant. It considered that as a member of a lobby group, the complainant was seen as more sensitive than the average listener and, on an objective level, it did not consider the conduct was as serious as she led the Authority to believe.

With regard to the privacy complaint, the station argued that as the complainant put herself out as a representative of a group, she had made herself a public figure and consented to the attention she received. Her name was published elsewhere. With regard to principles i) and ii), the station argued that no public disclosure of public facts was made. With respect to principle iii) it did not consider calling an answerphone amounted to an unreasonable intrusion into the complainant’s solitude or seclusion, particularly as she had a public role with respect to the group. Turning to principle iv), the station argued that no private fats were used to abuse or denigrate the complainant. With regard to principle v) at no time was the complainant’s name or address broadcast and no information was given out that was not already published in the newspaper. The station considered principle vi) was relevant because the call was made to gain information from the complainant, and such information was in the public interest. It considered that principle vii) may also be relevant in that the complaint consented to public attention in her role as spokesperson for a group.

The station advised that it was concerned the complainant was upset by its actions. However, it said, she had a political agenda.

On the station’s behalf, the solicitors wrote:

We are of the view that the complaint is without merit and would see it unjust should the BSA decide to impose sanctions on our client. We are unsure what the complainant is seeking when she refers to section 16(4) of the Act. As with all such complaints, however, our client has taken the complaint seriously and advised its staff to exercise careful discretion for the future with regard to leaving messages on answerphones.

Finally, the station noted that it had offered the complainant an opportunity to express the group’s views on air. That offer had been declined. It considered there was little else to be offered in the circumstances.