BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During the Hauraki Breakfast Show, Deborah Stokes, mother of New Zealand-born English cricketer Ben Stokes, rang the studio to complain about what she considered to be unfair comments made by the hosts regarding her son, and to defend him. Mrs Stokes asked to speak with someone off air. Host Matt Heath assured Mrs Stokes she was off air, when in fact the conversation was being broadcast live on air. The Authority upheld a complaint that the action taken by NZME, having upheld Mrs Stokes’ complaint under the fairness and privacy standards, was insufficient. The broadcast, and particularly the hosts’ deceptive conduct, represented a significant breach of broadcasting standards and a lack of understanding of an individual’s fundamental right to fair treatment and to privacy. While NZME offered Mrs Stokes a substantial remedy following her complaint, it took limited action, which did not adequately rectify the harm caused to Mrs Stokes. Furthermore, events subsequent to the broadcast and prior to NZME’s response to the complaint, such as the hosts’ behaviour, undermined the genuineness of the proposed offer.

Upheld: Fairness (Action Taken), Privacy (Action Taken)

Orders: Section 13(1)(a) broadcast statement; section 13(1)(d) $4,000 compensation for breach of privacy; section 16(4) costs to the Crown $4,000

Introduction

[1]  During the Hauraki Breakfast Show, Deborah Stokes, mother of New Zealand-born English cricketer Ben Stokes, rang the studio to complain about what she considered to be unfair comments made by the hosts regarding her son, and to defend him. Mrs Stokes asked to speak with someone off air. Host Matt Heath assured Mrs Stokes that her phone call was off air, when in fact the conversation was being broadcast live on air.

[2]  Deborah Stokes complained to the broadcaster that she was mocked and humiliated by the programme hosts, in breach of the fairness standard as set out in the Radio Code of Broadcasting Practice.¹ She also complained that the broadcast breached her privacy, as she was assured the phone call was off air, and therefore she had a reasonable expectation of privacy.

[3]  NZME upheld the complaint under the fairness and privacy standards, and offered Mrs Stokes a remedy, which included:

• an assurance that the hosts involved had been counselled as a result of the complaint
• a written apology from the Chief Executive of NZME Radio
• additional broadcasting standards training for NZME Radio presenters, in particular on the privacy and fairness standards
• an on-air statement, in an agreed form, to be broadcast at a date and time similar to the original broadcast
• $3,000 to Mrs Stokes, or a charity of her choice, ‘in order to put this matter to rest’.

[4]  NZME subsequently offered to pay Mrs Stokes $6,000 ‘in full and final settlement of all matters’.

[5]  Mrs Stokes did not accept NZME’s remedial offer, and referred her complaint to the Authority on the basis that she was dissatisfied with the action taken by NZME.

[6]  The issue is whether the action taken by NZME, having upheld Mrs Stokes’ complaint under the privacy and fairness standards, was sufficient.

[7]  The item was broadcast on Radio Hauraki on 4 April 2016. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The broadcast

[8]  The phone call between Mrs Stokes and the radio hosts began as follows:

Host: Good morning. Have you got a suit for me?

Mrs Stokes: Ah no, I wanted to speak to someone off air if I could, please.

Host: You want to speak to somebody off air?

Mrs Stokes: Yes.

Host: Okay, you’re off air.

Mrs Stokes: Oh, I am?

Host: Yeah.

Mrs Stokes: Oh, okay, that’s fine...

[9]  Mrs Stokes said that she was calling to ‘put forward [her] thoughts’ in regards to how the hosts of the Hauraki Breakfast Show had ‘bagged’ the English cricketer Ben Stokes. She said:

[The hosts] have never met him, they don’t know him, and maybe if they had tempered their inappropriate remarks and name-calling with some quotes of some supportive Tweets he’s received from some very well-known cricketers and just your ordinary Joe Bloggs cricket supporters, then maybe...

[10]  The host, Matt Heath, interrupted Mrs Stokes at this point to say, ‘Could you slow down a bit, I’m just writing this complaint down, because I’ve got to get it through to Matt and Jeremy’.

[11]  Mrs Stokes continued to articulate the concerns she had about the hosts’ comments about her son and the impact the comments had on her and her family.

Did the broadcaster take sufficient action, having upheld Mrs Stokes’ complaint under the fairness and privacy standards?

[12]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[13]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

Fairness

The parties’ submissions

[14]  Mrs Stokes took issue with NZME’s finding under this standard that guideline 11f (which states that broadcasters must not broadcast information obtained by misrepresentation or deception) was ‘probably breached’. She considered there was a ‘clear and unambiguous’ breach of this guideline.

[15]  NZME stated that after ‘very careful consideration of the factual situation’ it was not certain that a breach of guideline 11f had occurred, but found on balance that there probably had been and the fairness complaint was upheld. NZME considered that this was a fair and reasonable decision, in favour of Mrs Stokes, for which it should not be criticised.

[16]  NZME maintained that:

In the actual context [of the original broadcast], the hosts’ initial exchange with the caller was innocent and only intended at the time as harmless fun, and not as a subterfuge. It is only by applying hindsight regarding the actual nature of the call and identity of the caller (which were not known at the outset of the call, and which were very unusual) that it is possible for Mrs Stokes to assert that there was an improper ‘subterfuge’ at the outset of the call.

Our analysis

[17]  We acknowledge that, irrespective of its reasons, NZME ultimately found that the broadcast breached the fairness standard – in our view correctly. We consider this was a clear example of the type of unfair treatment of individuals that guideline 11f is intended to guard against. We are not convinced by the broadcaster’s argument that the hosts’ initial exchange with Mrs Stokes was ‘innocent’ and ‘harmless fun’, as the deception and misrepresentation by Mr Heath occurred at the outset of the call. Regardless of the fact that Mrs Stokes did not introduce herself immediately, Mr Heath’s response to her legitimate request to speak to someone off air was untruthful. This was inherently unfair and we agree that it breached the fairness standard.

Privacy

The parties’ submissions

[18]  Mrs Stokes took issue with NZME’s response that ‘whether there is an expectation of privacy when calling a radio station hotline and not a business line regardless of whether there is an assurance the call was going to be played on air is an interesting point’, as she argued there was a ‘clear and inarguable expectation of privacy’ as soon as the assurance that the phone call was off air was given.

[19]  NZME said that its response regarding the ‘unusual factual background’ of the broadcast and Mrs Stokes’ expectation of privacy addressed relevant factors that it considered were necessary to analyse when coming to its conclusion to uphold the complaint. It maintained that in the context of the broadcast the hosts expected callers to be calling about the competition, and not to be calling in respect of anything that might be private in nature. NZME submitted that there was no premeditation involved on the part of the hosts.

Our analysis

[20]  In our recent decision Mitchell and NZME Radio relating to the same broadcast,³ we found that Mrs Stokes had a reasonable expectation that, in the circumstances, her phone call and the conversation would remain private. The recording and broadcast of her conversation, in circumstances where she had expressly asked for privacy (by asking to speak off air) was objectionable and would be highly offensive to an objective reasonable person in the complainant’s position.

[21]  We are not convinced by NZME’s argument that because Mrs Stokes called a radio studio hotline, rather than a business line, she may have had a lesser expectation of privacy. Mrs Stokes was calling a radio station to complain, and expressly requested to speak to someone off air. This sufficiently indicated to the broadcaster that Mrs Stokes wished to have a private conversation with a staff member, rather than with the studio or programme hosts, and this was a reasonable request in our view.

Subsequent broadcasts

[22]  Mrs Stokes also maintained that her complaint related to the original broadcast of 4 April 2016 as well as ‘all subsequent mentions of, references to, and replays of the original broadcast’. She considered that each item constituted a separate breach of the fairness and privacy standards, and that the broadcaster had not addressed the subsequent breaches in its response.

[23]  NZME argued that Mrs Stokes was seeking to extend the scope of her original complaint. It noted that complainants are required to specify the date and time of the broadcast(s) subject to complaint, and Mrs Stokes only provided this information in relation to the original broadcast. In any case, NZME identified one partial replay and two additional references to the original broadcast of 4 April 2016, and maintained it had taken into account all subsequent events (including other broadcasts) in its decision and actions in response.

[24]  Complainants are required to specify the date, time and other relevant details of the broadcast(s) being complained about, in order to enable the broadcaster to properly address their complaint. We do not consider that Mrs Stokes’ complaint referring to ‘all subsequent mentions of, references, and replays of the original broadcast’ was sufficiently specific to amount to a valid formal complaint about each separate broadcast beyond 4 April 2016.

[25]  However, the fact of additional replays and references to the original broadcast is relevant to our consideration of whether the action taken by the broadcaster having upheld the complaint was sufficient (see our discussion from paragraph [35]), as it goes to the nature and gravity of the breach of broadcasting standards.

General action taken

[26]  Having upheld her complaint, NZME offered Mrs Stokes the following remedy:

• an assurance that the hosts involved had been counselled as a result of the complaint
• a written apology from the Chief Executive of NZME Radio
• additional broadcasting standards training for NZME Radio presenters, in particular on the privacy and fairness standards (which took place on 27 May 2016)
• an on-air statement, in an agreed form, to be broadcast at a date and time similar to the original broadcast
• $3,000 to Mrs Stokes, or a charity of her choice, ‘in order to put this matter to rest’.

[27]  NZME subsequently offered to pay Mrs Stokes $6,000 ‘in full and final settlement of all matters’.

The parties’ submissions

[28]  Mrs Stokes’ main arguments as to why she was dissatisfied with the broadcaster’s actions were as follows:

• The hosts ‘were never remotely remorseful or apologetic’ for what they did, demonstrated by their ‘mocking and gloating’ social media posts and subsequent justification of their actions in other media.
• NZME management in Mrs Stokes’ view ‘went along with [the hosts’] behaviour and created the false impression of a suspension having been put in place’. She noted the statement from NZME management to media that the hosts had been ‘suitably reprimanded and are off air tomorrow’ was widely reported as meaning the hosts had been suspended, which was not true, and at no stage did NZME correct this impression. She also considered that Mr Heath and Mr Wells ‘played along with the deception that they had been suspended’, as evidenced by their social media posts and subsequent broadcasts.
• Referring to NZME’s offer of payment ‘to put this matter to rest’, Mrs Stokes did not want to accept an offer that might limit her ability to take other action that she might feel she was entitled to take.
• NZME failed to remove the audio of the broadcast from the Radio Hauraki website until this was pointed out during the formal complaints process.
• The initial response from the acting programme director of Radio Hauraki, having received Mrs Stokes’ privacy complaint, which suggested that ‘it may be worthwhile... putting the audio on the Hauraki website’, was ‘casually insensitive’.

[29]  NZME’s submissions in response were as follows:

• The hosts’ social media posts are not matters on which the Authority can adjudicate. In any event, the social media posts were not illustrative of deception or a conspiracy to deceive Mrs Stokes, but were ‘mischievous social media behaviour’ outside of the broadcasting context.
• NZME never described the hosts as being ‘suspended’, and had only told Mrs Stokes that they had been ‘counselled’. It maintained that ‘the statement signalled – accurately – that Mr Heath and Mr Wells would not be advancing the matter on air again the following day’, and the Authority should not assume that the intent was to convey an untruth.
• NZME believed the offer – along with the upheld complaint – ‘go[es] further than would usually be expected’, had been presented in good faith and was a genuine attempt to ‘make things right’. It noted in relation to the specific offer of an on-air statement, it had not progressed this as it did not want to draw any further attention to the broadcast without Mrs Stokes’ consent.
• NZME stated that at the time of responding to Mrs Stokes’ complaint, it understood that all links to the audio of the broadcast had been removed from the Radio Hauraki website. It confirmed that it could now categorically say there is no way the broadcast can be listened to on the Radio Hauraki website.
• NZME’s response to Mrs Stokes’ complaint acknowledged that NZME management ‘could’ve acted on [Mrs Stokes’] concerns earlier and taken things more seriously’. It said this statement was intended to cover all of the matters that Mrs Stokes raised in respect of the conduct of management, and the significant remedial actions – both offered and undertaken – indicated the seriousness with which the broadcaster regarded the matter.

Our analysis

[30]  Our consideration of whether the action taken by a broadcaster was sufficient will depend on the nature of the breach of standards – that is, the severity of the conduct and the level of harm caused – and the specific circumstances of each individual complaint. The more serious the breach, the more the broadcaster will need to do to remedy it – described as a ‘proportionality’ test.

[31]  For the reasons we have outlined regarding fairness and privacy, we consider the broadcast amounted to a serious breach of broadcasting standards and demonstrated a grave lack of understanding on the hosts’ behalf of an individual’s fundamental rights to privacy and fair treatment. This is a case of public deception, which is a substantial departure from the standards of broadcasting expected in New Zealand.

[32]  We therefore consider that overall the action taken by the broadcaster was insufficient, taking into account that:

• Subsequent broadcasts of, and commentary on, the 4 April 2016 segment compounded the harm to Mrs Stokes.
• Inadequate action was taken at the time of the broadcast; it ought to have been immediately obvious to the broadcaster that this was serious and immediate action was required.
• Events subsequent to the broadcast, including the hosts’ behaviour and failure to properly reprimand them, undermined the genuineness of NZME’s eventual offer.

[33]  Accordingly, we consider that the remedial response ought to have been significant, and for the above reasons, we do not feel that NZME went far enough.

Subsequent broadcasts

[34]  NZME identified one partial replay and two additional references to, or discussion of, the original broadcast by Radio Hauraki hosts and guests in other programmes in the days following the broadcast. We recognise that NZME took these subsequent broadcasts into account when determining what remedy was appropriate to offer Mrs Stokes. That being said, we consider the subsequent broadcasts compounded the harm caused by the initial item and further demonstrated a lack of recognition by the broadcaster of the serious issues in the original broadcast. In at least one of the subsequent broadcasts Mrs Stokes was again ridiculed and mocked with reference to the phone call and the way she conducted herself. Accordingly, the broadcaster needed to take greater action to manage the situation and the hosts’ behaviour.

Inadequate action taken at the time of the broadcast

[35]  NZME itself has acknowledged its shortcomings in its dealings with Mrs Stokes at the time of the broadcast. Mrs Stokes first contacted Radio Hauraki on 4 April 2016, the day of the broadcast, to raise her concerns. Additionally, there was considerable media coverage immediately after the item aired. This should have alerted to the broadcaster that there were potential issues with the broadcast, but it initially did not address Mrs Stokes’ concerns sufficiently seriously or take any meaningful action at the time. We agree with Mrs Stokes that the response from Radio Hauraki at that time, suggesting that it might be worthwhile to further disseminate the audio on its website, supports the view that there was a complete lack of understanding of the gravity of the situation. The offer of remediation was not made until the broadcaster’s decision on the complaint, on 16 May 2016.

[36]  The Authority has found in previous decisions that, as the fairness standard is concerned with harm to an individual’s reputation and dignity, something ‘public’ was required to remedy the harm caused to a complainant.⁴ NZME did not broadcast an apology to Mrs Stokes in proximity to the original item. We understand the broadcaster’s view that it did not want to proceed with any kind of broadcast statement without Mrs Stokes’ consent. However we think some public action was necessary in the circumstances, given the issue had become widely publicised. A broadcast apology, in consultation with Mrs Stokes, would have provided a timely and public acknowledgment of the issues with the broadcast and would have helped to remedy the distress and humiliation caused to her.

Events subsequent to the broadcast undermined the genuineness of NZME’s offered remedy

[37]  We acknowledge that NZME offered Mrs Stokes a reasonably substantial remedy, which went some way towards addressing the harm caused by the original broadcast. However, we understand Mrs Stokes’ rejection of the proposed remedy in light of events which occurred prior to the offer being made. By the time of the offer on 16 May 2016, six weeks after the original broadcast, Mrs Stokes understandably had lost confidence in NZME and doubted that the offer was genuine.

[38]  We also acknowledge that NZME’s initial offer of $3,000 to Mrs Stokes, or a charity of her choice, was subsequently increased to an offer of $6,000. It appears to us that this increased offer (which was rejected by Mrs Stokes) related to other potential claims which Mrs Stokes may or may not have in relation to the broadcast (in addition to the complaint about broadcasting standards), which are outside the Authority’s jurisdiction.

[39]  First, NZME’s statement to media at the time of the broadcast that the hosts had been ‘suitably reprimanded and are off air tomorrow’ was somewhat disingenuous. While NZME did not itself state that the hosts had been suspended, the wording of the statement enabled media and the public to infer that this was the case, and that the hosts were off air as a result of the broadcast. In fact, they were off air due to a pre-arranged Radio Hauraki business trip to Las Vegas, as they made clear in various social media posts which followed. The choice of wording used in the statement did not in our view accurately reflect what the broadcaster had, or had not, done to censure the hosts.

[40]  Second, we can understand why Mrs Stokes may have viewed correspondence from NZME regarding removing links to the audio of the broadcast as insincere. Despite assurances to the contrary, the broadcast continued to be present on the Radio Hauraki website and able to be accessed by members of the public. We consider removing the audio of the broadcast from the station’s website would have been a relatively straightforward way for the broadcaster to address one aspect of Mrs Stokes’ concerns. However, this did not occur in a timely fashion and potentially enabled the hosts’ unfair treatment of Mrs Stokes and the breach of her privacy to be further disseminated.

[41]  Third, the hosts’ actions subsequent to the original broadcast aggravated the initial breach of the fairness and privacy standards. While the broadcaster is correct that social media content does not fall within the jurisdiction of this Authority, the hosts’ actions and response to the complaint nevertheless form part of the contextual background to this complaint and the aftermath of the original broadcast. As evidenced in their various social media posts, Mr Heath and Mr Wells sarcastically said they felt ‘very remorseful’ about their actions, while posting photos of them drinking in airport lounges and next to a swimming pool. They continued to justify the original broadcast in other media.⁵ The broadcaster’s apparent failure to control the hosts’ behaviour in this respect – even if they were ‘counselled’ and given additional broadcasting standards training – is in our view significant and a strong contributing factor to our finding that the action taken overall was insufficient. As far as we are aware, neither host has apologised (though we recognise that the Chief Executive of NZME Radio apologised in writing to Mrs Stokes on behalf of the ‘station and NZME Radio’).

[42]  Finally, we note that our determination is concerned with the action actually undertaken by a broadcaster. We therefore make a distinction between the offer of a remedy and putting that remedy into effect. While NZME offered to undertake substantial action, limited action occurred, including action that could have been taken without Mrs Stokes’ consent or acceptance (for example reprimanding the hosts for their subsequent behaviour). We acknowledge that the broadcaster did eventually apologise to Mrs Stokes in writing, and provided additional broadcasting standards training to staff, which was appropriate. However, we do not consider this was enough, or in close enough proximity to the broadcast, to remedy the harm caused to Mrs Stokes. Therefore we find that the action taken by NZME was insufficient and we uphold the complaint.

For the above reasons the Authority upholds the complaint that the action taken by NZME Radio Ltd regarding the broadcast of the Hauraki Breakfast Show on 4 April 2016, having upheld the complaint under Standards 10 and 11 of the Radio Code of Broadcasting Practice, was insufficient.

[43]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[44]  Mrs Stokes stated that the broadcast has had, and continues to have, a significant effect on her in terms of stress, humiliation and emotional distress. She explained that this has affected her personal and professional life. Mrs Stokes noted that media coverage of the broadcast, both nationally and internationally, continues to be available and the audio of the original broadcast is still accessible on the UK Daily Mail website.

[45]  Mrs Stokes submitted that the following orders would be appropriate:

• privacy compensation of $5,000
• a broadcast statement
• orders for the Hauraki Breakfast Show to refrain from broadcasting, or broadcast without advertising programmes, for a period of time.

[46]  Mrs Stokes expressly stated that she did not seek an apology from the broadcaster, as she considered at this point an apology would be ‘lacking in sincerity’.

[47]  NZME submitted it would be appropriate to broadcast a statement, including an apology to Mrs Stokes. Regarding monetary compensation and costs to the Crown, NZME referred to the Authority’s decision in Ihaia and IM and MediaWorks Radio Ltd,⁶ and submitted a similar outcome would be suitable in this case – namely $4,000 privacy compensation and $2,000 costs to the Crown. In terms of the order to refrain from broadcasting, NZME argued that such an order should be reserved for exceptional cases which cannot be adequately addressed by other orders, and this was not such a case.

Authority’s decision on orders

[48]  As our findings above reflect, we consider that this case involved a serious breach of broadcasting standards. Not only was Mrs Stokes unfairly deceived, and her reasonable expectation of privacy interfered with in a highly offensive manner, but this was aggravated by the hosts’ conduct and ridicule of her after the broadcast, which gained international attention. Our decision on orders is made against that background and addresses the harm to Mrs Stokes as well as responding to the conduct of the broadcaster.

Privacy compensation

[49]  The Authority may make an award to compensate an individual for the harm caused to them by a breach of their privacy. Under section 13(1)(d) of the Broadcasting Act 1989, the maximum amount of privacy compensation we are able to award is $5,000.

[50]  Here the privacy breach was conducted through deception and was aggravated by the ridicule and unwanted, international attention subsequently received by Mrs Stokes, which should have been reasonably foreseeable by the broadcaster. Taking into account the serious nature of the breach, the impact of the breach on Mrs Stokes, and the Authority’s previous compensation awards, we find that an award of $4,000 compensation to Mrs Stokes for the breach of her privacy is appropriate.

Costs to the Crown

[51]  The Authority may also make an award of costs to the Crown having regard to various factors, including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[52]  In determining the amount to award, we have considered the conduct of the broadcaster overall. If we were only concerned with what happened on the day of the original broadcast, our conclusion may well be different. However, here we have considered the deception, the breach of the privacy and fairness standards, as well as the following conduct which occurred after the event:

• replays of, additional references to, and commentary on, the broadcast by the broadcaster
• the hosts’ lack of remorse, apparent ridicule of Mrs Stokes and continued justification of the broadcast
• the broadcaster’s failure to suitably reprimand the hosts immediately after the event
• the broadcaster’s public statement implying that the hosts had been suspended, which was incorrect as the hosts were in fact travelling overseas on a business trip
• inadequate action taken by the broadcaster.

[53]  This subsequent conduct aggravated the initial breach of two standards and leads us to the conclusion that a higher award of costs to the Crown is appropriate. Taking these factors into account, we consider that an award of $4,000 costs to the Crown is warranted.

Broadcast statement

[54]  We also consider it appropriate that the broadcaster publicly acknowledges the breach of standards to its audience by way of a broadcast statement on air and on its website. The statement should reflect that the Hauraki Breakfast Show was found to have breached Mrs Stokes’ privacy and was also unfair to her, and that the broadcaster was found to have taken insufficient action in response. The statement should also refer to the Authority’s decision in Mitchell and NZME Radio Ltd,⁷ which deals with the same matter. In accordance with Mrs Stokes’ request, this statement will not include an apology to her. Our standard practice is for the wording of the statement to be drafted by the broadcaster and approved by the Authority.

[55]  Mrs Stokes also suggested several conditions for the broadcast of the statement. We do not intend to make any directions beyond the order outlined below. The broadcaster may wish to accommodate some or all of the complainant’s requests.

[56]  We also consider that it would be appropriate for the broadcaster to take steps to request the removal of links to the broadcast in other publications both in New Zealand and overseas.

Order to refrain from broadcasting or advertising

[57]  This order is rarely imposed and is only used to mark the most extreme breaches of broadcasting standards.⁸ We do not consider this order is appropriate in the present case. While the broadcast constituted a serious breach of standards, and we have found the broadcaster took inadequate action in response, it did ultimately acknowledge the breach of standards and attempt to remedy it.

[58]  We are satisfied that the orders of privacy compensation, costs to the Crown and a broadcast statement sufficiently mark the breach, and an order to refrain from broadcasting or advertising is not warranted.

Orders

1. Pursuant to section 13(1)(a) of the Act, the Authority orders NZME Radio Ltd to broadcast a statement. The statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during the Hauraki Breakfast Show
• be broadcast at a time and on a date to be approved by the Authority
• on the same day it is broadcast, be published also on the Radio Hauraki web page, and remain visible on that page for one month
• refer both to this decision and to the Authority’s decision Mitchell and NZME Radio Ltd, Decision No. 2016-027
• contain a comprehensive summary of the upheld aspects of both this decision and the Authority’s decision Mitchell and NZME Radio Ltd, Decision No. 2016-027.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 13(1)(d) of the Act, the Authority orders NZME Radio Ltd to pay to Deborah Stokes costs in the amount of $4,000 within one month of the date of this decision, by way of compensation for the breach of her privacy.

3. Pursuant to section 16(4) of the Act, the Authority orders NZME Radio Ltd to pay to the Crown costs in the amount of $4,000 within one month of the date of this decision.

Signed for and on behalf of the Authority

Peter Radich
Chair
3 November 2016

Appendix

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

1      Deborah Stokes’ formal complaint – 21 April 2016
2      NZME Radio’s response to the complaint – 16 May 2016
3      Mrs Stokes’ referral to the Authority – 12 June 2016
4      NZME Radio’s response to the Authority – 1 July 2016
5      Mrs Stokes’ final comment – 18 July 2016
6      NZME Radio’s final comment – 4 August 2016
7      Mrs Stokes’ submissions on the provisional decision and orders – 3 October 2016
8      NZME Radio’s submissions on the provisional decision and orders – 4 October 2016
9      Mrs Stokes’ further comments on the provisional decision and orders – 11 October 2016

¹ This complaint was determined under the new Radio Code, which took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³ Mitchell and NZME Radio Ltd, Decision No. 2016-027

⁴ See, for example, Ihaia and IM and MediaWorks Radio Ltd, Decision No. 2015-074 at [31]

⁵ See, for example, Matt Heath’s column written for the New Zealand Herald titled, ‘When a mother sticks up for her famous son’, 11 April 2016: http://www.nzherald.co.nz/sport/news/article.cfm?c_id=4&objectid=11620118. This column was the subject of an upheld complaint by the Press Council. 

⁶ Decision No. 2015-074

⁷ Decision No. 2016-027

⁸ For an example of when an order to refrain from broadcasting has been imposed, see Barnes and ALT TV Ltd, Decision No. 2007-029