BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Radio 531 PI Breakfast Show – interview about organisation of International Laugh Festival – complainant named and criticised as festival producer – breach of privacy – comments unfair and inaccurate – broadcasters acknowledged some comments as unfair – apology promised – action taken insufficient

Findings
Privacy – no private facts disclosed – expression of opinion only – no uphold

Principle 5 – comments unfair – uphold

Principle 6 – not a news or current affairs programme – no uphold

Action taken
Written apology tendered to complainant through Authority – sufficient

This headnote does not form part of the decision.

Summary

[1] The International Laugh Festival was discussed on Radio 531 PI on the morning of 6 May 2002. A Pacific Island comedian, who was not included in the televised Gala part of the Festival, was interviewed. The interviewee (Canada Alofa) named the complainant as the producer of the Festival, and among a number of critical comments, raised the possibility that she was racist.

[2] Jackie Sanders complained to Radio 531 PI that the broadcast included a number of inaccuracies and that the allegation of racial prejudice was "outrageous". She sought a written and broadcast apology.

[3] In response, the broadcaster apologised for the trouble caused by the broadcast and said a written response would be forthcoming.

[4] As the broadcaster did not send a letter of apology, Ms Sanders referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. In addition, she wrote, her privacy had been breached by the accusation of racism.

For the reasons below, the Authority upholds the complaint that the broadcast was unfair to the complainant and breached Principle 5 of the Radio Code. It declines to uphold the privacy complaint. The apology to the complainant sent through the Authority is sufficient action.

Decision

[5] The members of the Authority have read a transcript of the interview which was broadcast, and the correspondence which is listed in the Appendix. No tape was provided. The Authority determines the complaint without a formal hearing.

The Programme

[6] The International Laugh Festival was discussed in an item broadcast on Radio 531 PI beginning at 9.20am on 6 May 2002. The item followed some press comment that well-known comedian, Mike King, was not a participant in the opening televised Gala. The announcer interviewed Canada Alofa who, it was said, was the only "Pacific Act" in the festival that year but, he said, he was not part of the opening Gala either.

[7] In the introduction, the announcer said that the festival had gone from a "huge event to a little provincial one". The interviewee said that Jackie Sanders was the producer of the Festival and that she had promised Mr King and him a spot during the opening Gala. That had not occurred and, further more, he said, she did not respond to his subsequent emails.

[8] When the announcer asked about the need to focus on new acts, the interviewee agreed with him. However, he added, earlier he had been "pretty confident" he was going to be part of the Gala on television and he "really sort of gutted" when he was not included.

[9] The announcer then referred to some other media comment and suggested what appeared to be "something fishy" happening. He asked whether questions of race could be a reason for the non-participation of the interviewee and Mr King. The interviewee responded:

You know, well it might JaeD, I’ve known this producer for the last 3 years and she’s always sort of look at me, even with the last 3 years its always been the Brownies, she always kind of look at people like us in a different sort of way and I’m just beginning to wonder, we never seem to sort of like get on for some particular reason, I mean we get on with other people of the Festival, you know with the board and also with the Laugh Office but for some reason this producer just, I honestly don’t know what it is, I just feel that that could be the reason, she might have had some bad experience with coloured people and but honestly I’m just trying to chase her and I know I will get her out of the Festival, so we can sit down and sort this out because I don’t want this problem to come up again next year.

[10] The announcer said that he had sought comments from Jackie Sanders that morning by email but he had not received a reply. In his summary, he said that there seemed to be "some funny things" happening at the Laugh Festival and perhaps "some heads should roll".

The Complaint

[11] In an email to the broadcaster, Jackie Sanders listed seven complaints.

The item was inaccurate in its comments about Mr King. He had not been offered a place in the Gala as he had chosen not to participate in the Festival that year.

A road show was not just going to Wellington and Auckland, as in earlier years, but was to visit six centres including Wellington and Christchurch.

The interviewee was not told he would be in the Gala. He was told that auditions would be held if any slots became available. All the slots were filled and, therefore, there were no auditions.

The implication that the interviewee was omitted because of his race had been passed on to the Festival’s legal adviser. He had spoken to the interviewee and, Ms Sanders said, she was told that the interviewee seemed happy with the explanation.

Eleven of the 17 acts in the Gala were new faces, and thus it was not just "the same faces".

Gala slots were 3–4 minutes and she questioned why the interviewee had said that he had prepared 10 minutes of material.

"The allegation that there was any racial prejudice in the process is completely unfounded".

[12] Ms Sanders listed the Board members, one of whom was described as an entertainment media lawyer. Following the broadcast, she said, she had discussed the options available with him and would now prefer "a broadcasted apology and retraction as well as written apologies to both myself and the Board".

The Broadcaster’s Response to the Complainant

[13] 531 PI’s station manager advised that he intended to speak to the announcer and interviewee. Meanwhile he added, the station intended to write to Ms Sanders and the Board, and he noted:

I am sorry for the trouble that this has caused you personally and I hope we’ll work out a settlement which will go some way to redressing the issue.

The Referral to the Broadcasting Standards Authority

[14] As she had not heard further from 531 PI, Ms Sanders referred the complaint to the Authority. The broadcast, she wrote, included the inaccuracies listed in her letter of complaint "as well as personal slanders against myself and my employers". She wrote:

I believe that my privacy has been severely breached as I have been publicly accused of racism. As I work in the entertainment industry on a freelance basis, with many contracts involving events of a cultural nature, I am devastated that anyone could insinuate that I hold any kind of prejudice towards anyone. I feel that this irresponsible broadcast could undermine my reputation and potentially my ability to source work. It should have been addressed immediately as promised, as the effect of any retraction becomes diluted as time passes.

[15] Ms Sanders stated that she sought recompense through the Authority. She also noted that the interviewee had since been banned from all festival venues and from all future Laugh Festivals because of threatening behaviour, and she concluded:

I feel that it was grossly irresponsible of the station to give weight in the eyes of the public to such a person’s opinion when it was an obvious attempt at self-promotion – in fact the interviewer encouraged him and actively led the interview in that direction.

The Broadcaster’s Response to the Authority

[16] After several letters, the broadcaster finally responded to the Authority’s request for comment. The station manager questioned whether the complainant’s privacy was breached. He also enclosed an email from the interviewee who reported that he had met the complainant and other members of her staff in May. The interviewee recorded:

In this meeting, we all agreed that there was a lot of misunderstanding between myself, Jackie, and comments that were made over the radio. At the end, Jackie ended up apologising to me, and I also did the same. Everything was hunky-dory and left at that.

[17] The interviewee added that he would apologise again.

[18] In his letter to the Authority, the station manager commented that the email indicated that the interviewee "had gone to some length" to redress the matter, and:

The fact that he continued to be hired by Jackie Sanders’ organisation suggests that the complainant is unreasonably seeking her pound of flesh from us again.

[19] In finishing, the station manager noted that the complainant probably intended to pursue a defamation case and he was unable to take the matter further.

The Complainant’s Final Comment

[20] Ms Sanders contended that the broadcaster’s reply contained "gross inaccuracies". After the broadcast, she recalled, she had been advised by colleagues in the entertainment industry to speak first to the station manager. She had done so and had been promised an on-air apology and written apologies from the announcer and the interviewee. However, none of those eventuated, and after unsuccessful attempts to speak to the station manager again, the complaint had been lodged. In the meantime, she added, the interviewee had come to her offices and the processes involving the TV2 Big Gala Comedy line up had been explained to him. Pointing out that the interviewee had not been hired by the Festival but was a registered performer, she added:

[The interviewee] apologised for the distress caused and I accepted that and said that I was sorry that it had ended in the way it did. He had no explanation for his actions other than the fact that he wished to publicise his show and the interviewer had brought the subject up and he had gone along with it.

[21] The complainant repeated that the broadcaster had not apologised, and now it was too late for apologies as unsubstantiated remarks had been made. She said that she had approached the station manager directly on the basis that she believed he would rectify an injustice. That, she observed, had not occurred.

Further Correspondence

[22] Following receipt of the complainant’s final comment, 531 PI’s station manager sent the Authority a further letter of apology addressed to the complainant. In the latter, the station manager and the interviewer of the item complained about asked the complainant to accept their "sincere apologies". They wrote:

We both accept and readily admit that we could have handled this matter better. Your issue with us as broadcasters has been the alleged defamation. My email and our conversations which followed shortly afterwards confirmed that I have already apologised in that respect. You did however ask that I extend the apologies to the rest of your organisation and independent advice I had received was that if these individuals were to seek this apology from us, we would take the appropriate steps. In hindsight, I should not have withheld that information from you.

[23] The letter finished:

In conclusion I would like to say that regardless of the outcome, we apologise without reserve for the way in which this matter has been handled and that we hope that our attempts to mitigate the issues with the Authority should not detract from the sincerity of our apology.

The Authority’s Determination

[24] Ms Sanders complained that some comments made by a comedian during an interview on 531 PI breached her privacy, and the standards relating to fairness and accuracy. The International Laugh Festival was the topic of the interview, and the interviewee, referring to the complainant by name, raised the possibility that her attitudes were racist. Ms Sanders described that allegation as "outrageous" and sought a written and broadcast apology.

[25] The Authority notes that the complaint has taken, from the date of the broadcast, the best part of six months to resolve. At times, the broadcaster was slow to respond to Authority requests for information. It became apparent to the Authority that the broadcaster’s tardiness was probably based on a concern that the complainant could initiate action for defamation. In mid September, the broadcaster was advised by the Authority that the Broadcasting Act included a specific provision that any material relating to a complaint, including the determination, was not admissible in evidence in any other Court proceedings, other than perjury. After being advised of the legal situation, the broadcaster’s comments were more forthcoming than they had been.

[26] The Authority has developed seven Privacy Principles which it applies when determining a complaint that a broadcaster has failed to maintain standards consistent with the privacy of an individual. The Principles deal with the disclosure of private facts, or with factual situations involving the intentional interference with an individual’s interest in solitude or seclusion. As the broadcast complained about involved opinion, not the disclosure of private facts, the Authority concludes that the broadcast did not breach the privacy standard.

[27] The Authority reaches a different opinion in regard to the complaint that the broadcast was unfair to the complainant. Principle 5 of the Radio Code of Broadcasting Practice provides:

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

[28] The Authority has no hesitation in concluding that the broadcast on 8 May was unfair to the complaint, and breached Principle 5. While, in the correspondence, the broadcaster does not directly rule that the item breached the principle, the Authority is of the view that the broadcaster’s letters of 22 May to the complainant, and 15 August and 19 September to the Authority, acknowledge that a breach of Principle 5 took place.

[29] The complainant also alleged that the broadcast breached the accuracy requirement in Principle 6 of the Radio Code. It reads:

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

[30] On the basis that the broadcast was not a news or current affairs programme, the Authority finds that the Principle was not transgressed.

[31] The Authority’s decision confirms the broadcaster’s implicit finding that the broadcast contravened the fairness requirement in Principle 5.

For the above reasons, the Authority upholds the complaint that the broadcast by 531 PI of an item on 6 May 2002 about the International Laugh Festival breached Principle 5 of the Radio Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[32] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. The broadcaster has sent the complainant, through the Authority, a comprehensive written apology. The Authority agrees that such an apology is essential. In view of the sincerity evident in the written apology, the Authority is also of the view that it is sufficient. It has decided not to order the broadcast of an apology.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 November 2002

Appendix

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

1. Jackie Sanders’ Complaint to Radio 531 PI – 8 May 2002
2. Radio 531 PI’s Response to Ms Sanders – 22 May 2002
3. Ms Sanders’ Referral to the Broadcasting Standards Authority – received 30 May 2002
4. Radio 531 PI’s Response to the Authority – 15 August 2002
5. Ms Sanders’ Final Comment – 28 August 2002
6. Authority’s Letter to Radio 531 PI explaining relationship between complaints and defamation 
   – 16 September 2002
7. Radio 531 PI’s Response to the Authority – 19 September 2002
8. Radio 531 PI’s Apology to Ms Sanders – received 21 October 2002