BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During The Devlin Radio Show, host Martin Devlin was forcefully outspoken about an abusive text message he had received from the complainant, TF. Mr Devlin read out the complainant’s mobile phone number multiple times and phoned the complainant on air while making abusive comments about them. The Authority upheld a complaint that Mr Devlin breached the complainant’s privacy. While the Authority did not condone the strongly-worded text message initially sent to Mr Devlin, Mr Devlin’s response was disproportionate and unprofessional, even in the context of the robust talkback radio environment. The complainant had a reasonable expectation of privacy in relation to their personal mobile number, and Mr Devlin’s comments amounted to a sustained and personal attack against the complainant, making use of private information to personalise the abuse and implicitly encouraging harassment of TF. This amounted to a highly offensive disclosure and was a breach of TF’s privacy.

Upheld: Privacy

Orders: Section 13(1)(d) – privacy compensation $2,000; section 16(4) – costs to the Crown $2,000; section 13(1)(a) – broadcast statement

Introduction

[1]  During The Devlin Radio Show, host Martin Devlin was forcefully outspoken about an abusive text message he had received from the complainant, TF. Mr Devlin read out the complainant’s mobile phone number multiple times and phoned the complainant on air while making abusive comments about them. Mr Devlin said:

• ‘I’m just going to ring a pussy bitch, ladies and gentlemen, who’s not going to answer his phone...’
• ‘...if you’re going to text and abuse people here at this radio station, I’m going to ring your boss and I’m going to point out to him or her that you have anger problems...’
• ‘...the fact you won’t answer your phone, mate ... I want to come to your work and abuse you is what I’m going to do...’
• ‘Do a privacy complaint, that’ll be good, ’cause then we’re gonna know who you are.’

[2]  TF complained directly to the Authority that Martin Devlin breached their privacy by repeatedly reading out their mobile number live on air. TF said they had received abusive texts and calls from people who heard the broadcast.

[3]  The issue is whether the broadcast breached the privacy standard, as set out in the Radio Code of Broadcasting Practice.

[4]  The segment was broadcast on 29 August 2016 on Radio Sport at 10.04am. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast breach the complainant’s privacy?

[5]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

[6]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.¹

The parties’ submissions

[7]  In support of the complaint, TF submitted that Mr Devlin ‘wanted his listeners to call me, to abuse me and harass me... He knew exactly what broadcasting my number over and over... would do.’ TF said that they did receive abusive calls and text messages, and that they were concerned that those people would discover where they lived and that they would be attacked as a result of the broadcast.

[8]  NZME said that talkback radio was a robust environment, and if a listener chose to abuse a host, then the listener could ‘expect a stern response’. It said that the text message sent by the complainant was ‘the straw that broke the camel’s back’, as the host was subjected to regular and repeated abuse via text message by people who were ‘not brave enough’ to call. By reading out the complainant’s phone number, Mr Devlin was simply ensuring the complainant knew who his response was directed at.

[9]  However, NZME said that it would have upheld this complaint had it been lodged with the broadcaster first. It said that Mr Devlin had admitted he handled the situation poorly and he had been censured by senior management.

Our analysis

[10]  The broadcaster has acknowledged that the contents of this broadcast amounted to a breach of the privacy standard. We agree. TF could be identified through the disclosure of their personal mobile number, and we consider that they had a reasonable expectation of privacy in relation to this private information. While TF initiated communication with Mr Devlin via text message, TF would not have anticipated, nor did they consent to, their mobile number being disclosed, and repeated, live on air by the host.

[11]  We consider this disclosure, which was made in an antagonistic and abusive way, would have been highly offensive to an objective reasonable person in TF’s position. While Mr Devlin did not explicitly invite listeners to harass TF, this was a foreseeable consequence² of his reading out the number multiple times and the provocative language he used, and such harassment did in fact eventuate, according to the complainant. This was a sustained and personal attack against TF, and the use of private information to personalise the abuse and to identify the complainant, breached TF’s privacy.

[12]  In reaching this conclusion, we acknowledge that the language used by TF in their initial text message to Mr Devlin was provocative. However, we consider that, in the context, Mr Devlin’s response was disproportionate and unprofessional. In many occupations a requirement of the work is a capacity to put up with abuse and respond calmly and professionally. Angry, attacking responses are not appropriate in such positions. Some talkback hosts stimulate challenging responses from listeners and do so as part of their style. However, the standards that they must maintain do not allow retaliatory rejoinders of the kind that occurred here. We consider that Mr Devlin’s response went beyond what could reasonably be expected, even in the context of the robust talkback radio environment.

[13]  We therefore uphold TF’s complaint.

Name suppression

[14] Due to the nature and circumstances of this complaint, we have suppressed the complainant’s name and other identifying details in our decision.

For the above reasons the Authority upholds the complaint that the broadcast by NZME Radio Ltd of The Devlin Radio Show on 29 August 2016 breached Standard 10 of the Radio Code of Broadcasting Practice.

[15]  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

[16]  TF accepted the provisional decision and was satisfied for the Authority to make its own decision in regards to orders. However, TF asked the Authority to take into account Mr Devlin’s ‘total lack of fear (and thus respect) of the BSA’. They said that it was clear from Mr Devlin’s statements in the broadcast that he ‘welcomed’ a privacy complaint.

[17]  NZME accepted the provisional decision and submitted that it would be appropriate for it to broadcast a statement and apology at the commencement of The Devlin Radio Show, provided TF did not object. It submitted that the Authority should consider relevant and comparable previous cases in relation to compensation and costs.

[18]  In response to NZME’s submissions, TF said that the suggested orders amounted to a ‘slap on the wrist with a wet bus ticket’. TF said that they were ‘in two minds’ regarding the suggested broadcast statement, as while it might be worthwhile, they did not want to draw further attention to the broadcast and be subject to further harassment.

Authority’s decision on orders

[19]  Where a complaint is upheld the Authority may make orders including, in the case of a privacy breach, directing the broadcaster to pay compensation to the person whose privacy has been breached, to broadcast and/or publish a statement, and/or to pay costs to the Crown.

Privacy compensation

[20]  Having upheld TF’s privacy complaint, we consider it appropriate to make an award of compensation for the harm caused to TF by the 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.

[21]  In determining the amount to be awarded, we have had regard to the following factors:

• The repetitive and abusive nature of Mr Devlin’s comments and the disclosure of TF’s private information in the form of his personal mobile phone number.
• While Mr Devlin did not explicitly invite listeners to harass TF, this was a foreseeable consequence of the provocative language he used and his repeated disclosure of TF’s mobile phone number.
• The harm caused to the complainant as a result of the broadcast, which included a number of abusive text messages and phone calls and the resulting distress.

[22]  Taking the above considerations into account, as well as the Authority’s previous compensation awards, we find that an award of $2,000 compensation to TF for the breach of their privacy is appropriate.

Costs to the Crown

[23]  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.

[24]  We have taken into account Mr Devlin’s conduct, which was clearly deliberate and knowingly mocked the broadcasting standards regime. We have also considered the actions of the broadcaster in upholding TF’s complaint, censuring the host and providing additional coaching for the host.

[25]  While the broadcaster has, subsequent to the complaint, acknowledged the breach and taken steps to address it, this was a serious breach and the host displayed a blatant disregard for TF’s privacy, as well as broadcasting standards and the complaints system as a whole. We consider that an amount of $2,000 in costs to the Crown would be appropriate.

Broadcast statement/apology

[26]  In our view, the circumstances of this case also warrant a public acknowledgement by the broadcaster of the breach of standards, by way of a broadcast statement on air. A draft broadcast statement has been provided to us by the broadcaster.

[27]  Having regard to the complainant’s submissions as to whether a statement ought to be issued, and the nature of the complaint, we will depart from our usual practice (of the broadcaster drafting the statement for our approval), and will allow the complainant an opportunity to view the text of the proposed statement. The Authority will abide the decision of the complainant as to whether the statement should be broadcast, taking into account the impact it may have on them. We note in this respect that we do not consider any undue harm or harassment should result to the complainant from the broadcast statement, so long as they are not identified and the mobile phone number is not repeated. The primary purpose of the statement is to publicly notify Radio Sport’s audience of the breach of standards.

Orders

1. Under section 13(1)(a) of the Act, the Authority orders NZME Radio Ltd to broadcast a statement – subject to it being agreed by the complainant in advance. If agreed, the statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during The Devlin Radio Show
• be broadcast at a time and on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.

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

3. Under section 16(4) of the Act, the Authority orders NZME Radio Ltd to pay to the Crown costs in the amount of $2,000 within one month of the date of this decision.

Signed for and on behalf of the Authority

Peter Radich
Chair
15 December 2016

Appendix

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

1      TF’s direct privacy complaint to the Authority – 29 August 2016
2      NZME’s response to the Authority – 8 September 2016
3      TF’s final comment – 13 September 2016
4      NZME’s final comment – 21 September 2016
5      TF’s submissions on the provisional decision and orders – 9 November 2016
6      NZME’s submissions on the provisional decision and orders – 18 November 2016
7      TF’s response to NZME’s submissions – 21 November 2016
8      NZME’s further comments in response – 29 November 2016

¹  Guidelines 10a and 10b to Standard 10 (Privacy)

²  Also see NJ and Apna Networks Ltd, Decision No. 2010-066