BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld a complaint about two broadcasts on Humm FM, finding that the complainant was treated unfairly. The Authority found that comments made by the host during the broadcasts were likely to reflect negatively on the complainant and to impact on his personal and professional reputation. As the complainant was adversely affected, he should have been given an opportunity under the fairness standard to respond to the comments made about him. The Authority emphasised that the right to broadcast carries with it privileges and responsibilities, and in this case the host used his platform to air his personal grievances against the complainant without giving him an opportunity to comment, which was unfair. The Authority did not uphold the complaint under the privacy standard, finding that while the complainant may have been identifiable to the Hindi community to which these broadcasts were targeted, no private information or material about him was disclosed. 

Upheld: Fairness. Not Upheld: Privacy  

Order: Section 16(4) – $750 in costs to the Crown

The broadcasts and background

[1]  Over two evenings on Humm FM 106.2, host Dev Sachindra of Hindi radio programme, Humm FM Drive with Dev and Sandy, referred to the complainant and discussed their personal dispute.

[2]  As these programmes were broadcast in a mixture of Hindi and English, we sought an independent transcription and translation of the relevant segments. This translation was provided to the parties for their information and for comment. As part of our consideration of this complaint, we have reviewed the translation provided and the correspondence listed in the Appendix. 

[3]  By way of background, it appears that the complainant has previously worked with Humm FM, as he was a DJ at Humm FM’s Holi event in 2018. According to the broadcaster, the complainant was involved in a different Holi event for 2019 and Humm FM declined an offer to work with him. The complainant went ahead with his event, which was held on 9 March 2019.

[4]  Prior to the Holi event, on 26 February 2019, the complainant posted a Facebook status stating: ‘Imitation is the best form of flattery! I am glad we are still an inspiration.’ A third party commented below the post: ‘Dear HumFM [sic] is this a recurring announcement? Haha. Just teasing, I’ll stop trolling. Keep doing you.’ This comment was later deleted by the complainant.

[5]  Both Facebook posts appear to have been interpreted by Mr Sachindra as a criticism of Humm FM. Mr Sachindra phoned the complainant and asked him to either delete the third party’s comment, or to make clear that he was not referring to Humm FM. Mr Sachindra alleges the complainant became offended and used vulgar language, while the complainant argued that it was Mr Sachindra who used threatening language against him. The complainant contacted Humm FM’s director to complain about the phone call.

[6]  The host then discussed the dispute during Humm FM Drive on 26 February 2019. According to the translation we have been provided, Mr Sachindra discussed the Facebook status which had been posted by the complainant. While the complainant was not named, the host made the following comments about him:

• ‘…this time at our Humm FM Holi celebrations we will be getting an awesome DJ. Last year we made a big mistake we do not know who chose those guys. It was such a big mistake…’
• The complainant’s company, Bollywood Affair, was referred to by name and Mr Sachindra went on to say: ‘Anyway… I think they have continued with the script for a long time… where they bore people and I think it’s high time that Humm FM takes these things in hand we should get really some good people and show how it is done.’
• ‘Now I think that someone buys a laptop and puts the headphone and blocks one ear and the other is exposed… And he thinks that he has become a DJ, they don’t.’

[7]  Following the broadcast, Mr Sachindra sent a text message to the complainant saying: ‘If you would have deleted your stupid [Facebook] friend’s comment earlier then you wouldn’t have received my call. I hope this will not repeat in future.’ A number of messages were exchanged and in one message, the complainant referred to Mr Sachindra as ‘taxi boy’. 

[8]  Later that evening, the complainant’s legal counsel sent a cease and desist letter to Humm FM. The complainant then contacted Humm FM by email on 27 February 2019 to request a response to his complaint and to request that further comments about him were not broadcast that evening.

[9]  However, during a second broadcast on 27 February 2019, Mr Sachindra returned to the topic, referring to the ‘taxi boy’ comment made by the complainant and inviting listeners to call in to the programme to discuss whether they judged individuals by their work. According to the translation, the host said, for example:

•  ‘Last year we celebrated Holi on 23rd March, then the people there told me that why are you bringing this DJ… So you see that we have done these changes too when that particular DJ is not going to be performing on the 23rd, he will not be there in our Holi celebrations…’
• ‘If someone is saying brother, that we do not need members of a particular community, we do not need people like taxi drivers… So they do not need people from the foolish community… that means you are… de-meaning a community… I would not like to name and shame because I am sure they will come to know who they are and I just want to say that such a low mental thought that you have is truly wrong/incorrect and it should not be this way…’
• ‘When you say these kind of things… this is truly wrong… it’s such a shame that I came to know this later that this guy removed this girls comment wherein he had mentioned Humm FM… I hope that you have learned your lesson…’
•  ‘…he was saying “oh dear! In my event, I don’t want Punjabi fools at my event…’
• ‘Last year we had made a mistake that we had invited him at our Holi event for playing. Hey, guys this year we will not moving forward we will not invite him, at least while I am here. I will make sure that this does not happen again because people with such a disgusting thoughts, also are a security matter too…’ 
• ‘…their [other DJs] thoughts are not so mean and who do not have a terror-filled up in their head, these people are not like this.’

The complaint and the broadcaster’s response

[10]  Mr Taimoori complained that these broadcasts were in breach of the fairness and privacy standards of the Radio Code of Broadcasting Practice, for the following reasons:

• Mr Sachindra’s comments were defamatory and amounted to personal attacks on his character and business in an attempt to damage his reputation. This was unfair and he was given no opportunity to respond.
• Mr Sachindra bullied him and used his platform to ‘muscle the community organisers into submission or face public defamation’.
• Despite being alerted to the issue in advance of the 27 February broadcast, Humm FM management took no steps to contain or address the problem. 

[11]  Mr Taimoori also attempted to raise the good taste and decency standard in his referral, but as this was not raised in his initial complaint to the broadcaster we cannot consider it now.

[12]  In response to the complaint, Humm FM submitted:

• The text messages exchanged between the complainant and Mr Sachindra were ‘purely personal’ and no broadcasting standards were breached.
• While Mr Sachindra spoke about the incident on-air, he did not name the complainant.
• On 27 February 2019, he spoke generally about the complainant’s comment ‘taxi boy’, and asked listeners to provide their views on the question of whether a job describes an individual’s class. This was not in breach of standards.

The standards and relevant guidelines

[13]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a broadcast. 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 a broadcast have the right to expect that broadcasters will deal with them justly and fairly, so that undue harm is not caused to their reputation and dignity.

[14]  If a person referred to during a broadcast might be adversely affected, that person should usually be given a fair and reasonable opportunity to comment for the programme, before a broadcast. What is fair and reasonable will depend on the circumstances.¹

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

[16]  In deciding whether the standard has been breached, we generally 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
• whether the disclosure could be considered highly offensive to an objective reasonable person.²

Our analysis

[17]  We value the right to freedom of expression in New Zealand. This means that we value the right of individuals to express opinions and ideas, even where those ideas might be critical or unpopular, provided they do not cause undue harm. When we make a decision on a complaint that broadcasting standards have been breached, we therefore weigh the right to freedom of expression against the harm that is alleged to have been caused by the broadcast.

[18]  In this case, the complainant has submitted that the host’s comments reflected negatively on him and adversely impacted on his professional reputation. He was not given an opportunity to defend himself or to provide his side of the story, which was unfair.

[19]  We consider the fairness standard is most relevant to the complainant’s concerns, so we have focused our analysis on that standard. We deal briefly with the privacy standard below from paragraph [34].

Fairness

[20]  First, we note that identification is not required under the fairness standard, which states that those ‘taking part or referred to in any broadcast’ should be treated fairly.[3]

[21]  While Mr Taimoori was not named during these broadcasts, we are satisfied that he was ‘referred to’ by the host. It is clear from the translation that Mr Sachindra was speaking about a known individual within the Hindi community. We consider listeners were likely to understand (if not recognise) who was being referred to, particularly given the complainant’s public profile as a DJ, his involvement with Humm FM’s 2018 Holi event, and his connection to the named company, Bollywood Affair.

[22]  Based on the translation we have been provided, we consider audiences were likely to understand or infer the following from Mr Sachindra’s comments:

• Humm FM made a ‘big mistake’ in hiring the complainant as a DJ for their event and they would not be working with him again (a sentiment repeated numerous times over the two broadcasts).
• While it is not clear from the broadcasts why this was the case, it can be inferred that Mr Sachindra believes the complainant is not an accomplished DJ (but someone who had simply bought a laptop and headphones).
• The complainant discriminated against certain members of the community by not allowing them to attend his events (eg those of ‘low status’, taxi drivers and members of the Punjabi community), an allegation reinforced by the topic of the poll (whether listeners judged an individual by the work they do).
• The complainant was ‘mean’ and had ‘terror-filled up’ in his head.

[23]  We consider the host’s comments, set out in full above at paragraphs [6] and [9], had the potential to reflect negatively on the complainant and to impact on his reputation, both personally and professionally. The comments were not brief or one-off but were sustained over two lengthy broadcasts. While the host did move to discuss more general topics, he continued to return the focus to the complainant throughout.

[24]  Further, Mr Sachindra’s comments were not limited to the complainant’s professional performance, but moved into more personal statements against him, including allegations about his character (implying that he discriminated against people based on their job or ethnicity). We note that it is not clear from the initial Facebook post that sparked the dispute that Mr Taimoori was referring to Humm FM and this connection was instead made by an unrelated third party. In our view, Mr Sachindra’s response against the complainant, broadcast on air, was therefore disproportionate and unprofessional. 

[25]  While the parties do not agree as to what was said during the phone call on 26 February 2019, we have been provided with screenshots of the later text messages exchanged by both individuals. The language in these text messages is offensive and vulgar. It is clear to us that the complainant had his own part to play in this dispute and that he used provocative language in his communication with the host. 

[26]  However, the Authority has previously recognised that:⁴

The right to broadcast material carries with it privileges and responsibilities, including reasonable consideration of anyone who might be affected by a broadcast.

[27]  In this case, the host relied on his position and used the Humm FM platform to air his personal grievances against a competitor, without allowing them the ability to respond or defend themselves. This was acknowledged by callers to the programme, who spoke in support of, or attempted to defend the complainant, for example: ‘He doesn’t have a platform… but you have a platform’.

[28]  While our determination is limited to the broadcast material, and we have acknowledged the provocative language used by the complainant, we further consider the host’s behaviour outside of broadcast (representing Humm FM), was also highly unprofessional.

[29]  Humm FM’s response to Mr Taimoori’s concerns, both at the time of broadcast and in response to the formal complaint, was inadequate and indicates a lack of understanding of broadcasting standards and the fairness standard in particular. The complainant was not provided with any opportunity to respond to the negative comments made about him and Humm FM, despite being made aware of the issue prior to the second broadcast, took no steps to mitigate the potential harm.

[30]  As we have said above, there is value in the expression of ideas and opinions, even where they are unpopular or rude. We place a high value on the right to freedom of expression in our society, which means that at times, the exercise of that right might cause offence or harm. However, this must not be undue harm. Broadcasting standards exist as a guide to broadcasters in how to balance these competing interests.

[31]  In this case, and for the reasons we have outlined above, we consider that the value and public interest in the broadcast did not outweigh the potential harm that could be caused to the complainant’s professional and personal reputation.

[32]  We therefore do not consider the complainant was treated fairly by the broadcaster, and given he was likely to be adversely affected by the broadcaster’s comments, he should have been provided with an opportunity to respond prior to the broadcast.

[33]  We therefore uphold the complaint under the fairness standard.

Privacy

[34]  As noted above, when we consider a privacy complaint we must first determine whether the complainant was identifiable in the broadcast.

[35]  Even though he was not named, it is arguable that the complainant was still identifiable from the information disclosed during these broadcasts. This included his company name, his occupation as a DJ and his involvement in Humm FM’s 2018 Holi event. This information, taken together, risked identifying the complainant within the Hindi community to which the broadcasts were targeted.

[36]  Further, the complainant has provided us with copies of messages and harassment he has received, which he has submitted were as a result of the broadcasts. For example: ‘Heard your events are so high class that Punjabis are not allowed. I will make sure me and my friends don’t attend…’  

[37]  However, we are satisfied that no private information or material was disclosed about the complainant during these broadcasts. His involvement with Humm FM’s 2018 Holi event, his directorship of Bollywood Affair and his profession as a DJ, are all publicly available information which the complainant could not reasonably expect to keep private. We consider that the complainant’s concerns are appropriately dealt with as a matter of fairness, and we have outlined our findings in relation to that standard above.

[38]  We therefore do not uphold this aspect of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by 5Tunz Communications Ltd of Humm FM Drive with Dev and Sandy on 26 and 27 February 2019 breached Standard 11 of the Radio Code of Broadcasting Practice.  

[39]  Having upheld one aspect of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We issued a provisional decision to the parties and invited their submissions on orders.

The parties’ submissions on the provisional decision

[40]   Humm FM made a number of submissions in response to the Authority’s provisional decision. We set out the key issues raised below:

• The complainant was not singled out or directly identified in the broadcast. He was one of five DJ’s at the 2018 Holi event and three other club brands were also referred to during the broadcasts.
• The translation was vague and not reflective of the full context of the discussion.
• Through the listener poll, the host sought to ‘challenge demeaning ideology’, an issue relevant to the broadcaster’s audience.
• Mr Sachindra contacted the complainant directly to resolve the situation prior to the 26 February broadcast, which appears to have been overlooked in the Authority’s decision.
• If the complainant felt the discussion targeted him, he had the opportunity for redress on air.

[41]  Mr Taimoori responded to Humm FM’s submissions with the below further comments:

• He was the only featured DJ for the Humm FM Holi event. The other DJs referred to by Humm FM in their submissions were regular house DJs who do not run ‘Bollywood events’. It was therefore clear from the broadcast who was being referred to.
• The second caller clearly identified him.
• Humm FM had full knowledge of the host’s behaviour, due to the cease and desist letter sent on 26 February prior to the second broadcast and contact between the complainant and the station director.

[42]  In response to Mr Taimoori’s further comments above, Humm FM submitted:

• No caller acknowledged or defended the complainant. Each caller responded with their own opinion to the general question for discussion raised by the host.
• Humm FM provided evidence (festival poster, email correspondence, set list) to show that Mr Taimoori was only one of five DJs playing at the Holi event, and was therefore not singled out during the broadcast.
• In his contact with the station manager, Mr Taimoori did not send his replies to the host and was therefore ‘hiding the full picture’.

Our response to submissions on the provisional decision

[43]  Provisional decisions are provided to parties to correct any errors of fact in the decision and to make submissions on orders. In this case, we consider that a majority of the parties’ further comments relate to the substance of the complaint and we do not consider the parties’ submissions alter our findings overall.

[44]   However, we wish to reiterate that identification is not required under the fairness standard and it is sufficient that an individual is ‘referred to’ during a broadcast. We are satisfied that, for the reasons set out above at paragraph [21], the complainant was ‘referred to’ during both broadcasts.

[45]  In relation to Humm FM’s submission that the complainant had the opportunity for redress on air, we note that, under the fairness standard, the opportunity to comment must be provided prior to broadcast.⁵ The Authority has previously found that inviting listeners to call in to a radio programme is not sufficient to meet the requirements of the standard.⁶

[46]  Finally, Humm FM was given an opportunity to comment on the independent translations of these broadcasts, during the complaints process. We received no specific submissions from Humm FM at this time. However, we have considered and taken into account the parties’ submissions on the translations where relevant.

[47]  We consider the remaining aspects of the parties’ submissions are addressed in our decision.

The parties’ submissions on orders

[48]  Mr Taimoori submitted:

• His intention was to bring the broadcaster’s ‘bullying behaviour’ to the Authority’s attention: ‘This has gone on for so long in the Indian community and this time I found myself as the target of this bullying. I sincerely hope that the radio station learns from this and utilises their platform for the betterment of the community.’
• He requested the Authority ‘do more for educating non-English speaking communities about such support’.
• He further requested reimbursement for legal costs incurred in engaging a lawyer for an initial ‘cease and desist’ letter, sent to the broadcaster on 26 February 2019, prior to the second broadcast.

[49]  Humm FM did not make any specific submissions on the question of orders. It did submit:

• Humm FM provides an important platform to ‘allow for the freedom of expression for the ethnically diverse population in New Zealand’, and permits its staff to work autonomously to achieve this.
• It acknowledged and agreed with the Authority’s view that Mr Sachindra’s behaviour outside of broadcast was highly unprofessional.
• Management have introduced the requirement of ‘transparency’ in ‘peripheral/personal communications, where there is the possibility of influencing programme content.’

Our decision on orders

[50]  When the Authority upholds a complaint, we may make orders, including directing the broadcaster to pay costs to the Crown and/or to publish a statement.

[51]  In determining whether orders are warranted, the factors we take into consideration are:⁷

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

Some of the factors applied here

[52]  We consider the breach in this case to be at the medium to serious end of the spectrum. We have found that the host relied on his position to air a personal grievance against the complainant, a competitor, in an unprofessional manner and without giving him an opportunity to respond or defend himself. This resulted in a breach of the fairness standard and the broadcaster’s response to the provisional decision indicates that the breach has not been accepted and the requirements of the fairness standard not understood.

[53]  The potential for harm to the complainant was also at the medium end of the spectrum. The host’s comments had the potential to impact negatively on his professional and personal reputation, and the complainant was given no opportunity to respond to the allegations made against him.

[54]  The broadcaster did not uphold the complaint and, despite being put on notice prior to these broadcasts, took no action to mitigate the potential harm. The broadcaster’s response to both the initial complaint and the Authority’s provisional decision centres around the complainant not being identified, which indicates a lack of understanding of broadcasting standards and the fairness standard in particular.

[55]  However, we acknowledge that Humm FM is a relatively small broadcaster with few resources. It has had one complaint upheld against it five years ago,⁸ but no orders were made on that occasion and there have been no other complaints considered by the Authority about this broadcaster.

Costs to the Crown

[56]  Taking into account the factors outlined above, we consider than an order of costs to the Crown is appropriate in this case. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[57]  In determining the amount of costs to order, we acknowledge that Humm FM is a small broadcaster with limited resources. However, the amount of costs should reflect the seriousness of the breach and the conduct of the broadcaster. In these circumstances, we consider costs to the Crown in the amount of $750 is appropriate.

Statement

[58]  We have also considered whether the broadcast or publication of a statement would be appropriate in this case.

[59]  Mr Taimoori has not specifically requested a statement, and we do not think that it would usefully remedy the harm. We do consider that the issues raised in this case and the guidance we have provided above ought to be brought to the attention of other broadcasters, so that they are also aware of how the fairness standard applies in these circumstances. We consider that the release of this decision accompanied by a media release from the BSA (published in both English and Hindi), will achieve this purpose.

Legal costs

[60]  Costs awards are ordinarily granted to recompense in part a successful complainant for legal costs which have been incurred in the proceeding, and may include costs other than legal fees incurred during the complaints process.⁹

[61]  Section 16(1) of the Broadcasting Act 1989 states that the Authority may order reasonable costs and expenses ‘in any proceedings’. As noted above, guidance contained in the Broadcasting Standards in New Zealand Codebook is clear that costs may be ordered for legal fees ‘incurred during the complaints process.’¹⁰

[62]  In this case, the cease and desist letter referred to in Mr Taimoori’s submissions was sent prior to Mr Taimoori’s initial broadcasting standards complaint to Humm FM, and prior to his referral to the Authority.

[63]  As Mr Taimoori’s legal costs were not incurred in the process of his complaint, we cannot make an order for recovery of legal costs with respect to it. Therefore we do not make a cost order in this case.

Concluding comment

[64]  The complainant has requested that we work together with, and provide further support to, non-English speaking broadcasters and their communities about the complaints process and about broadcasting standards.

[65]  This is an important part of the Authority’s role and work which our staff team undertakes in the course of the services that we provide. We have recently indicated in our Statement of Performance Expectations for 2019/20 that we intend to increase our engagement with smaller broadcasters, to ensure they understand their obligations under broadcasting standards. Authority staff will work with Humm FM to provide this guidance.

Orders

1. Under section 16(4) of the Act, the Authority orders 5Tunz Communications Ltd to pay to the Crown costs in the amount of $750 within one month of the date of this decision. 

The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

23 August 2019

Appendix

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

1                 Translation of Humm FM Drive with Dev and Sandy, broadcast 26 and 27 February 2019 – Translation Service, Department of Internal Affairs

2                 Areeb Taimoori’s complaint and supporting documentation – 26 February and 26 March 2019

3                 Humm FM’s response to the complaint – 27 March 2019

4                 Mr Taimoori’s referral to the Authority – 1 April 2019

5                 Mr Taimoori’s identification of relevant excerpts of the broadcast – 10 April 2019

6                 Mr Taimoori’s comments on the translation – 22 May 2019

7                 Humm FM’s response to the referral – 27 March 2019

8                 Mr Taimoori’s final comments – 29 May and 21 June 2019

9                 Mr Taimoori’s submissions on the provisional decision and orders – 22 July 2019

10              Humm FM’s submissions on the provisional decision and orders – 31 July 2019

11              Mr Taimoori’s further comments – 5 and 6 August 2019

12              Humm FM’s further comments – 9 August 2019

13              Mr Taimoori’s final comments – 9 August 2019

¹ Guideline 11b
² Guidelines 10a and 10b
³ Johnson and Television New Zealand Ltd, Decision No. 2017-055 at [56]
⁴ Anderson and 3 others and Cruise FM Waikato, Decision No. 2012-133 at [23]
⁵ Guideline 11d
⁶ Singh and Radio Virsa, Decision No. 2017-001 at [20] and Supreme Sikh Society & Others and Planet FM, Decision No. 2018-040 at [27] 
⁷ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
⁸ Narayan and Humm FM, Decision No. 2014-119, regarding the broadcast of the Nicki Minaj song ‘Only’, which contained swearing and sexually explicit language, during the afternoon
⁹ Guidance: Costs awards to complainants, Broadcasting Standards in New Zealand Codebook, page 66
¹⁰ As above