BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During Morning Talk with Mark Sainsbury a caller to the programme discussed her experience with divorce legal proceedings in the Family Court and subsequent appeals. A complaint was made that, by allowing the caller to disclose details of the proceedings, the broadcaster breached the law and order standard. The Authority expressed serious concerns with the way in which the call was allowed to progress, as private information was disclosed by the caller which had been suppressed in the Family Court. The Authority found the broadcaster needs to be more alert to the issues surrounding Family Court matters and similar proceedings as issues of contempt, as well as fairness and privacy, may arise. However, the Authority did not consider the broadcaster could reasonably be said to have actively encouraged listeners to break the law by allowing the caller on air, in the manner envisaged by the law and order standard.

Not Upheld: Law and Order 

Introduction

[1]  During Morning Talk with Mark Sainsbury, one of the topics discussed was divorce and whether a ‘lack of fault has made it easier to walk away in this country’. Throughout the three-hour programme the host intermittently talked about divorce, he interviewed a researcher regarding the rise in men initiating divorce proceedings, and he invited listeners to ‘tell us your divorce stories’. One listener phoned into the programme and discussed her experience with legal proceedings in the Family Court and subsequent appeals regarding her divorce.

[2]  James Parlane complained that the caller disclosed confidential information about these proceedings during the broadcast, which he submitted is in breach of Family Court Rules, and by allowing this disclosure, the broadcaster encouraged the audience to break the law.

[3]  The issue raised in Mr Parlane’s complaint is whether the item breached the law and order standard as set out in the Radio Code of Broadcasting Practice.

[4]  The programme was broadcast on 24 October 2017 on RadioLIVE. 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 encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[5]  The purpose of the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. Programmes should not actively promote serious antisocial or illegal behaviour (guideline 5a). The context of the programme and the wider context of the broadcast are important considerations when assessing complaints under this standard (guideline 5b).

The parties’ submissions

[6]  Mr Parlane submitted:

• The caller disclosed specific details about her divorce legal proceedings as well as the parties involved in the proceedings.
• The disclosure of confidential information from a Family Court proceeding outside of court amounts to contempt of court. Neither the caller nor the broadcaster made any effort to maintain confidentiality.

[7]  MediaWorks submitted that no element of the broadcast amounted to an encouragement to break the law or promoted criminal or serious antisocial activity.

Our analysis

[8]  Ordinarily, matters of the kind discussed in this phone conversation on air, are subject to rules which prevent the disclosure of the identities of those involved. This approach appears to have been followed by the Court in the case of this caller. The names of the parties involved in the proceeding were evidently anonymised in the decision by the presiding Judge to protect the privacy of those involved.

[9]  The result of this phone conversation was that private information was disclosed which was suppressed in the Family Court. The disclosure of details of these particular legal proceedings, such as the name of the Family Court case, the last name of the caller’s former spouse and his profession, meant that the individual spoken about was potentially identifiable, linking him with the details of the proceedings.

[10]  In our view this demonstrated a lack of care from the broadcaster and from the host, who ought to be alert to the issues that can arise from discussing these kinds of proceedings which are typically subject to suppression orders. The host did not appear to be fully engaged in the conversation or aware of the potential issues of privacy and fairness that were arising during the discussion. It would have been preferable for the broadcaster to either caution the caller against disclosing such details prior to taking the call on air, or otherwise for the host or programme producer to take action once the conversation progressed, to either signal to the caller to avoid specific details, or to end the call. There were a number of trigger points during the conversation at which point, in our view, it would have been appropriate to terminate the conversation.

[11]  Having said this, while the disclosures during the broadcast may raise issues under the Family Court Act 1980, it is not the role of this Authority to determine whether or not any rules have in fact been contravened. Our role is limited to considering whether broadcasting standards have been breached.

[12]  These disclosures may, in some circumstances, also give rise to issues under the privacy and fairness standards of the Radio Code. However, the Authority’s established approach to the issue of the scope of complaints and their determination has been to accept jurisdiction over standards raised either explicitly or implicitly in the original complaint (or, conversely, to decline jurisdiction to consider a standard where it was not raised either explicitly or implicitly in the original complaint, even where the broadcast may, in the Authority’s view, raise issues under that standard).¹ This approach has been affirmed in the High Court.² As privacy and fairness were not raised either explicitly or implicitly in Mr Parlane’s original complaint, we do not have jurisdiction to consider these standards and we are limited to considering the law and order standard, which was nominated in the complaint.

[13]  The Authority’s approach to the law and order standard is that it is designed to protect against broadcasts which actively undermine the law or actively promote disrespect for the law. For example, discussing or depicting criminal behaviour, or offering genuine criticism of a particular law, in itself will be insufficient to breach the standard. On the other hand, direct incitement to break the law, presenting criminal activity as positive or humorous, or giving explicit instructions on how to perform a criminal technique, are more likely to undermine law and order and breach the standard.³

[14]  We are not able to find that the broadcaster in this case intentionally or actively encouraged illegal behaviour or breaking the law in the manner envisaged by the law and order standard. We are however concerned at the way in which this caller was allowed to go on unchecked when warning bells ought to have been heard. We urge broadcasters to be mindful of issues that may arise where Family Court proceedings are referred to in broadcasts given that most such proceedings are not open to the public.

[15]  In these circumstances we do not uphold the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
18 April 2018 

Appendix

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

1      James Parlane’s formal complaint – 27 October 2017
2      MediaWorks’ response to the complaint – 8 Decision 2017
3      Mr Parlane’s referral to the Authority – 9 January 2018
4      MediaWorks’ confirmation of no further comment – 16 February 2018

¹ For example, see: Morse and Radio New Zealand Ltd, Decision No. 2014-094 at [3]; NZ Timber Preservation Council Inc and Television New Zealand Ltd, Decision No. 2010-032 at [24]; and Burnby and Television New Zealand Ltd, Decision No. 2009-157 at [38]

² See Attorney General of Samoa v TVWorks Limited [2012] NZHC 131 and Hooker v TV3 Network Services Limited HC Auckland AP90-SW02, 19 March 2003

³ Commentary – Law and Order, Broadcasting Standards in New Zealand Codebook, page 15