BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint about a broadcast of Punjabi talkback programme, Dasam Granth Da Sach, in which the hosts identified the complainant and broadcast audio clips of him speaking about various religious topics. While the complainant was clearly identified, the Authority found no private information or material was disclosed during the broadcast over which the complainant had a reasonable expectation of privacy. The information disclosed during the broadcast was available in the public domain, and in these circumstances, the Authority found that its intervention in upholding the complaint would represent an unreasonable and unjustified limit on the right to freedom of expression. The Authority noted, however, that there were steps available to the broadcaster to mitigate the potential for harm, particularly in its use of social media content, and encouraged the broadcaster to consider the Authority’s guidance on these issues before broadcasting such content in the future.

Not Upheld: Privacy

The broadcast and background

[1]  On 24 November 2018, Radio Virsa broadcast Punjabi talkback programme, Dasam Granth Da Sach. A corresponding YouTube clip of this broadcast was also uploaded to Radio Virsa’s YouTube channel. 

[2]  As this programme was broadcast in Punjabi, we sought an independent translation and transcription of the relevant segment. This was provided to the parties for their information and for comment. 

[3]  According to the translation we have been provided, the hosts introduced the broadcast segment by disclosing the name of the complainant, his location and his role as a ‘spokesperson’ for the Sach Khoj Academy, a non-profit Sikh academic institution. The hosts informed listeners that they would broadcast audio clips of a religious discussion between the complainant and the founder of the Sach Khoj Academy. Short clips were then played throughout the broadcast of this discussion, with the hosts providing their own views in response to the clips. 

[4]  In his direct privacy complaint to us, the complainant identified this broadcast but appeared to be primarily concerned that his photo and phone number were shown during the broadcast’s corresponding YouTube clip, shared on Radio Virsa’s YouTube channel. The complainant’s phone number was not disclosed during the broadcast itself.

[5]  The parties have advised us that the audio clips of the complainant speaking, which were played during the broadcast, were originally posted in a WhatsApp group. We understand that individuals must be invited to a WhatsApp group by a group admin in order to view or post messages to the group and to access members’ contact details (such as phone numbers).¹ 

[6]  Radio Virsa submitted that a member of the public accessed the audio, photo and phone number of the complainant from a social media site, Jago Media, and subsequently shared this content with Radio Virsa via their Facebook page. 

The complaint and the broadcaster’s response 

[7]  Gurjeet Singh Bains complained directly to the Authority that this broadcast breached the privacy standard of the Radio Code of Broadcasting Practice, for the following reasons: 

• He was named and clips of his discussion, taken from a Whatsapp group, were broadcast without his permission. If Radio Virsa had accessed this information from elsewhere, it should have confirmed whether the complainant consented to the release of this information.
• The broadcaster played only selectively edited clips, removing the wider context of the discussion and the questions being responded to.
• His photo and phone number were also disclosed by the broadcaster in the corresponding YouTube video. 

[8]  Radio Virsa submitted: 

• The complainant is a highly regarded and active member of the Sach Khoj Academy and is known in the public domain (a number of his speeches and interviews are available on social media).
• Radio Virsa was provided with the audio clips by a member of the public, who had accessed the clips and photo shown on YouTube from a publicly available social media site, Jago Media.
• No personal information was disclosed during the broadcast. 

Our jurisdiction 

[9]  The Authority does not currently have jurisdiction over content made available on YouTube which is watched on the demand of the user, and we are therefore unable to consider the broadcaster’s YouTube video as part of our determination of this complaint. The complainant was made aware of our jurisdiction at the time he made his complaint and at other stages throughout the process, and has been directed to the relevant agencies to assist. 

[10]  By way of guidance, our jurisdiction is prescribed by the Broadcasting Act 1989 (the Act). The current view is that, under the Act, we do not have jurisdiction over content provided on platforms such as YouTube. This is because such content is transmitted on the demand of a particular person for reception only by that person, and this is excluded from the definition of ‘broadcasting’ under section 2 of the Act.² 

[11]  However, we acknowledge the complainant’s concerns in this regard, and set out below some guidance for the broadcaster regarding its use of third party content, sourced from social media, from paragraph [28]. 

The standard and relevant guidelines 
[12]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. 

[13]  In deciding whether the standard has been breached, we consider three criteria: 

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable;
• whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy; and
• whether the disclosure could be considered highly offensive to an objective reasonable person.³ 

Our findings

[14]  When we make a decision on a complaint that a broadcast has breached broadcasting standards, we weigh the important right to freedom of expression against the level of actual or potential harm that might be caused by the broadcast. 

[15]  We agreed that this broadcast had some value in terms of the right to freedom of expression. It is an important aspect of this right that religious issues are given a forum for open debate. 

[16]  However, the complainant has argued that the broadcast caused harm because he was identified and his views, originally shared on WhatsApp, were taken out of context and rebroadcast to a wider audience without his consent. 

[17]  We accept that the complainant was identified during this broadcast. However, we do not consider that any private information or material was disclosed, over which the complainant had a reasonable expectation of privacy. It appears that the complainant is a relatively well-known figure in the Sikh community and the information disclosed during the broadcast was already available in the public domain. 

[18]  In these circumstances, the harm alleged by the complainant to have been caused does not reach the threshold required for us to find a breach of broadcasting standards, and our intervention in upholding the complaint would therefore be unjustified. We set out our reasons for this finding below. 

Was the complainant identifiable? 

[19]  First, we consider whether the complainant was identifiable, beyond family and close friends who might reasonably be expected to know about the matter dealt with in the broadcast.⁴ 

[20]  The complainant was named in full and likely to be identifiable in this broadcast, particularly given he appears to be a known figure in the Sikh community, the audience to which this broadcast is targeted. 

Was private information or material disclosed, over which the complainant had a reasonable expectation of privacy? 

[21]  A person will not usually have a reasonable expectation of privacy in relation to matters of public record, such as matters that have recently been given widespread media coverage.⁵ Public figures, and others who seek publicity, will generally have a lower reasonable expectation of privacy in relation to matters pertaining to their public roles.⁶ 

[22]  The information disclosed during this broadcast included: 

• the complainant’s name
• his location
• his role as a spokesperson for the Sach Khoj Academy
• his religious views. 

[23]  We do not consider that any private information or facts were disclosed during the broadcast, either through the audio clips themselves or the hosts’ discussion.

[24]  It appears that the complainant is a relatively well-known figure in the Sach Khoj Academy and in the wider Sikh community where he is located. His photo, his connection to the Sach Khoj Academy and his location are all publicly available information. As a preacher and religious leader, the complainant’s religious views are also likely to be well known within the community. The complainant appears in YouTube videos speaking about the Sach Khoj Academy and its founder, and clearly his views were made available to the WhatsApp group, before they were shared more widely and made available in the public domain. 

[25]  The complainant’s phone number was not disclosed during the broadcast. As we do not have jurisdiction over content made available on YouTube, we are therefore unable to consider whether the disclosure of the complainant’s phone number via the YouTube video resulted in a breach of his privacy.

[26]  Having concluded that no private information or material was disclosed during the broadcast, there is no need to consider the third factor (whether the disclosure could be considered highly offensive to an objective reasonable person).

[27]  In these circumstances, our intervention in upholding the complaint would represent an unreasonable and unjustified limit on the right to freedom of expression. 

Use of third party content 

[28]  Notwithstanding our finding that no private information was disclosed and strictly no breach of privacy occurred here, this case concerns the rebroadcast of third party content, sourced from publicly accessible social media platforms. 

[29]  We have noted in previous decisions that it is important for broadcasters to be aware of the harm that might be caused through the rebroadcast of social media content.⁷ Last year, broadcaster representatives prepared a guidance note on using third party content, designed to assist broadcasters to consider key questions before using this type of content in broadcasting.⁸ This guidance should be considered by broadcasters and appropriate steps taken to mitigate the potential for harm, where appropriate. 

[30]  In this case, we accept that the complainant is clearly an active participant in debates around Sikh religious issues, and his views have been made available in the public domain. 

[31]  However, the original WhatsApp discussion was, to an extent, private. We can understand the complainant’s surprise at excerpts of this discussion then being broadcast without his knowledge, and we consider there were steps available to Radio Virsa to mitigate the risk of harm to the complainant being caused by the rebroadcast of this social media content (and by the use of the complainant’s photo and phone number, disclosed during the YouTube clip). 

[32]  There is no indication from the broadcaster’s submissions that it considered the implications of rebroadcasting, or disclosing via YouTube, the social media content it was provided. It appears that Radio Virsa did not inform the complainant of his contribution to the broadcast or seek his consent or response to the discussion, which may have mitigated the risk of harm to him. 

[33]  We encourage the broadcaster to consider the issues contained in the guidance note before using such third party content in future broadcasts. 

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

Signed for and on behalf of the Authority

Judge Bill Hastings
Chair
24 April 2019

Appendix

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

1     Translation of Dasam Granth Da Sach, broadcast 24 November 2018 – Translation Service, Department of Internal Affairs

2     Gurjeet Singh Bains’ direct privacy complaint – 3 December 2018

3     Radio Virsa’s initial comments on the broadcast segment – 21 December 2018

4     Mr Singh Bains’ comments on the translation – 13 February 2019

5     Radio Virsa’s further comments – 19 February 2019

6     Gurjeet Singh Bains’ final comments – 28 February 2019

¹ See: https://faq.whatsapp.com/en/android/26000123/?category=5245251

² Hurley and MediaWorks TV Ltd, Decision No. ID2018-068

³ Guidelines 10a and 10b

⁴ Guidance: Privacy, 2.1, Broadcasting Standards in New Zealand Codebook, page 59

⁵ 3.1, Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁶ 4.1, as above, page 60

⁷ See, for example: Harvey and Lorck and MediaWorks TV Ltd, Decision No. 2018-036; IY and MediaWorks TV Ltd, Decision No. 2018-032; and Rickard and Television New Zealand Ltd, Decision No. 2016-098

⁸ Using Third Party Content: Guidance note by broadcasters, for broadcasters (June 2018)