BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
ZMFM – "Bonk patrol" – man accused by neighbours of noisy love-making approached at home by announcer – comments broadcast live – man felt humiliated – breach of privacy

Findings
Privacy – s4(1)(c) – complainant not identified – no uphold

This headnote does not form part of the decision.

Summary

An announcer from ZMFM set out on what he called the "bonk patrol" during the breakfast session broadcast on 1 May 2001. He visited a woman who complained that her sleep was disturbed because of the frequent sounds of love-making in the flat upstairs. The announcer then woke up the man upstairs and asked him about his noisy love-making. The questions and answers were broadcast.

PD, the occupant of the flat upstairs, complained direct to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that his privacy was breached when approached by an unidentified man who broadcast his comments. He said he felt humiliated.

On the basis that the occupant was not identified in the broadcast, and nor were any identifying particulars broadcast, The Radio Network Ltd, the broadcaster, argued that PD’s privacy had not been breached and the complaint should not be upheld.

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

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

An announcer with ZMFM in Wellington (Nick Tansley) advised listeners during the breakfast session broadcast on 1 May 2001 that he was on a "bonk" patrol. He visited a woman in her flat who had complained that she was kept awake by the frequent and noisy love-making practices of the couple in the flat above hers. The announcer told listeners that while in the woman’s bedroom, he had hit the ceiling with barbells to wake up the people upstairs. He later knocked at the door of the upstairs flat. When the occupant opened the door he asked, among other questions, whether the occupant knew he had a very loud sex life. The occupant responded to some of the questions, advising the announcer that the walls in the building were thin and that he too was troubled by the noise of neighbours.

PD, the occupant in the upstairs flat, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached his privacy. He said that he had been woken by a loud banging noise on his bedroom wall, and that was followed by a banging at his front door. The person at the door was holding a cell phone and asked him questions about his sex life. He said he later found out that the man was an announcer with ZMFM and that their conversation had been broadcast. PD said that he was humiliated by the broadcast which had made jokes at the expense of him and his partner. He considered that his privacy had been invaded when his private life had been exposed, and he had subsequently moved flats.

In its report to the Authority, The Radio Network Ltd, the broadcaster, maintained that the broadcast was light-hearted and a "fun expose of a noise pollution problem". It said that the broadcast at no time identified the complainant, his neighbour or the address. The "well known" announcer, it added, was wearing a ZMFM jacket to identify himself. Pointing out that the complainant showed no reluctance to being interviewed, TRN described the broadcast as being in the candid camera style.

In his final comment, PD observed that the broadcast was not "light hearted" for him, and he was disappointed that TRN’s response did not contain an apology.

The Authority’s Findings

Section 4(1)(c) of the Broadcasting Act 1989 requires broadcasters to maintain standards consistent with the privacy of the individual. PD complained that the broadcast of the breakfast session on ZMFM, on 1 May 2001, breached this provision when he was interviewed about his alleged noisy love-making.

The Authority’s first step with a privacy complaint is to determine whether the individual, whose privacy is said to have been infringed, has in fact been identified by the broadcast. It does so because s.4(1)(c) of the Broadcasting Act requires broadcasters to maintain standards consistent with the privacy of the individual.

In order to meet the identification threshold, the Authority does not require that the individual be named. In past decisions, it has accepted, for example, that a distinctive accent may be sufficient to identify a person beyond family. The Authority has consistently ruled that there must be some aspect of the broadcast which discloses identity to enable a breach of privacy to be established.

On this occasion, the Authority is not satisfied to the required standard, the balance of probabilities, that the broadcaster disclosed PD’s identity beyond his immediate family. Neither his address nor any personal characteristics beyond his alleged love-making habits were disclosed. His broadcast comments were confined to his relatively brief responses to a small number of questions from the announcer. Accordingly, while the Authority considers that the ethics of the broadcast are questionable, it does not accept that PD’s privacy was breached. Had PD been identified, the Authority would regard this broadcast as a serious breach of the privacy principle relating to offensive intrusion.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
23 August 2001

Appendix

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

1. PD’s Formal Complaint to the Broadcasting Standards Authority – 11 May 2001
2. The Radio Network Ltd’s Response to the Authority (plus attachments) – 21 May 2001
3. PD’s Final Comment – 3 July 2001