BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
The Rock – a number of complaints – breach of privacy – using the airwaves to ridicule and denigrate – unfair – unjust

Findings
(1) s.11(a) – complaints not "frivolous, vexatious, or trivial"

(2) s.4(1)(c) – privacy – no identification – no uphold

(3) Principle 5 –
6 December broadcast – no uphold
11 December broadcast (6.19am) – threatening and intimidatory – uphold
11 December broadcast (8.35am) – suggesting someone has mental problems unfair – uphold
12 December broadcast (6.22am) – no uphold
12 December broadcast (6.54am) – no uphold
13 December broadcast – abusive and threatening – uphold
20 December broadcast – no uphold
7 January broadcast – no uphold

Orders
(1) Broadcast of statement
(2) $250 reimbursement of reasonable legal costs and expenses

This headnote does not form part of the decision.

Summary

[1] R K Watkins complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that eight morning broadcasts on The Rock on 6, 11, 12, 13 and 20 December 2001, and on 7 January 2002, breached her privacy. She also complained to The RadioWorks Ltd, the broadcaster, that the same broadcasts breached the requirement that broadcasters deal justly and fairly with any person taking part or referred to in a broadcast.

[2] The RadioWorks responded to the Authority that Ms Watkins’ complaints were vexatious, and that the Authority should decline to determine them. It said none of the items complained about amounted to a breach of the complainant’s privacy. As The RadioWorks failed to respond to Ms Watkins in relation to the standards aspect of her complaints, she referred those complaints to the Authority under s.8(1)(b) of the Broadcasting Act.

For the reasons given, the Authority upholds complaints about three broadcasts as breaches of Principle 5 of the Radio Code.

Decision

[3] The members of the Authority have listened to recordings of the items complained about and have read the correspondence listed in the Appendix. The Authority determines these complaints without a formal hearing.

The Complaints

[4] R K Watkins complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 about eight morning broadcasts on The Rock on 6, 11, 12, 13 and 20 December 2001, and on 7 January 2002. She complained that the broadcasts breached the requirement in s.4(1)(c) of the Act that broadcasters maintain standards consistent with the privacy of the individual. She said the broadcaster had used the airwaves to ridicule and denigrate an identifiable person, contrary to Principle (iv) of the Authority’s Privacy Principles.

[5] Ms Watkins also complained to The RadioWorks Ltd, the broadcaster, that the same broadcasts breached the requirement in Principle 5 of the Radio Code of Broadcasting Practice that broadcasters deal justly and fairly with any person taking part or referred to in a broadcast.

[6] The aspects of the broadcasts Ms Watkins complained about were:

6 December at 6.40am – e-mails read out on air in support of The Rock’s announcers included one which said, "Whoever dobbed you in to the BSA is obviously anal retentive".

11 December at 6.19am – an e-mail was read out from supporters who said they "sure [were] only too willing to administer some good old boy type of pay back [to the complainant]".

11 December at 8.35am – a DJ read out a number of e-mails from listeners relating to the complainant having had complaints against The Rock upheld by the Authority. One of the e-mails said, "I strongly believe the complainant has mental problems and I cannot comprehend how the BSA can take the complaint seriously from a person who does not think logically enough to change the station they listen to", and another described the BSA as standing for "Bum Sucking Arseholes".

12 December at 6.22am – in a discussion about the number of complaints the complainant had made to the Authority, one of the DJs said, "Why does this person listen? That’s what I’d like to know and I know that this person is up at the moment and will have her little tape recorder going. Why don’t you give us a ring and we’ll give you your say. You can have your say because I’m astounded why you listen. All of our listeners are astounded why you listen. Give us a ring now, we’ll give you your say on air. We won’t, you know, we’ll be nice and everything, your chance, give us a ring".

12 December at 6.54am – in reference to the complainant not having called the station, one of the DJs said, "Still waiting to hear from you-know-who" and, "Maybe her fingers are too fat to dial".

13 December at 6.20am – reading out an e-mail from a listener, a DJ described the complainant as "our little moaner who lives down the line". The e-mail said, "Can you please ask for this woman to ring and explain to you guys and to all other Rock listeners what her problem is. She [is] very vindictive and very evil". The DJ continued, "Well, it’s an open invitation, any time you ring us and we’ll give you your say. You can explain why you’ve written over 100 complaints… The Morning Shocker’s gone thanks to you." Another DJ replied, "I think Stephen King will write a book about her one day," and the first DJ said, "I think he has".

20 December at 7.37am – in a discussion about a letter to the editor of the Hawkes Bay Today from one of The Rock’s supporters, one of the DJs said, "Because we all know who lives in Hawkes Bay" and another said "I’ll get you my pretties, ha! ha! ha!"

7 January at 8.34am – in a discussion with a rock band which had helped raise money to pay The Rock’s fine awarded by the Authority, a band member said he would "just like to remind the lovely young lady in Napier to take her finger out of her bottom and put it on the dial on the radio and change it", to which a DJ replied, "Three fingers."

The Privacy Complaints

[7] Ms Watkins complained to the Authority that the items referred to above breached Privacy Principle (iv) of the principles enumerated by the Authority in an Advisory Opinion dated 25 June 1992. Privacy Principle (iv) states:

(iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

[8] Ms Watkins said although she had not been named in the broadcasts complained about, she had been named "numerous times on air in the past and, by now, [I] am more than identifiable to the station’s listeners and supporters."

The Standards Complaints

[9] Ms Watkins complained to the broadcaster that the items referred to above breached Principle 5 of the Radio Code of Broadcasting Practice, which reads:

Principle 5

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

[10] In particular, she drew the broadcaster’s attention to a written statement she had sent to The Rock’s announcers in response to a request that she telephone the station and explain to listeners why she had made her complaints. She said The Rock had never acknowledged her response, and instead she had been "continually and repeatedly denigrated and ridiculed over the airwaves" by one of the announcers.

The Broadcaster’s Response to the Complainant (Standards)

[11] The RadioWorks failed to respond to Ms Watkins in relation to her complaint that the items breached the requirement to treat her justly and fairly.

The Broadcaster’s Response to the Authority (Privacy)

[12] In its response to the Authority, the broadcaster said Ms Watkins’ complaints were "simply vexatious". It requested that the Authority use its power under s.11(a) of the Broadcasting Act 1989 to decline to determine the complaints on the grounds that they were "frivolous, vexatious, or trivial." It also requested that the Authority use its power under s.16(1) of the Act to order the complainant to pay costs to The RadioWorks, and asked that the sum of $1,500 be awarded.

[13] The broadcaster said none of the items complained about "remotely amount to a breach of the complainant’s privacy."

[14] It said:

For there to be any sort of breach of privacy there must firstly be the disclosure of a "private fact". Private facts are similar [to] "personal information".

None of the broadcasts complained of under this heading contain a private fact. Such facts as are disclosed (that the complainant made a number of previous complaints) is the result of the publication of the Authority’s decision in favour of the complainant made on an earlier occasion.

The broadcasts may contain criticism or invective, but that is not a private fact of the complainant.

In any event, such facts as are disclosed even if private (which is denied) are not highly offensive or objectionable to a person of ordinary sensibilities. This is self-evident from the nature of and huge number of calls, faxes and e-mails sent into The Rock critical of the complainant.

Further, in having regard to "a person" it is the ordinary person who listens to The Rock, not any person at all, whose sensibilities are to be taken into account. Even if the test were broader and that the person of ordinary sensibilities is the same for the National Programme as for the Rock, the broadcasts complained of do not remotely reach the required threshold of being highly offensive.

Not even the faint hearted and excessively sensitive would regard the facts disclosed (which is denied) as being offensive.

[15] In conclusion, the broadcaster again requested the Authority to decline to determine Ms Watkins’ complaints and to order that she pay costs to The RadioWorks in the sum of $1,500.

The Complainant’s Final Comment

[16] In her final comment, the complainant noted that The RadioWorks had not responded to her complaints that the items breached Principle 5 of the Radio Code. She asked the Authority to consider that principle when determining the complaints. She said:

She had been repeatedly accused of being a "vexatious" complainant. However, she said, she had responded in writing to an announcer’s request that she explain to listeners why she had lodged complaints, and her response had never been acknowledged (Ms Watkins enclosed a copy of her written response).

The announcers had "repeatedly ridiculed and denigrated" her on air.

She had been portrayed in a manner which was "completely distorted and inaccurate of my character".

She had been personally threatened, on air, both by a listener whose fax was read out, and by one of the announcers.

The "abusive language" used by announcers to describe her amounted to "incitement".

The Rock had acted vindictively against her for "no other reason" than that she had been successful in having the bulk of her complaints upheld.

The Rock had used the airwaves to misinform and mislead its listeners and supporters into inaccurately believing that there had only ever been one complainant, when in fact The Rock had had a history of complainants.

At no time had any of the many broadcast items which referred to her dealt with her justly and fairly.

[17] In relation to the alleged breaches of privacy, Ms Watkins acknowledged that some of the Authority’s Privacy Principles would not apply. She asked the Authority to assess the complaints under Privacy Principle (iv), stating that this was a case of "fabricated lies" rather than "private facts" being used to abuse, denigrate and ridicule her.

[18] Ms Watkins asked the Authority to take into consideration that the two announcers had "ensured [she was] someone very identifiable to their listeners," and then used the airwaves to abuse, denigrate and ridicule her.

[19] She argued there was no public interest in broadcasting "gratuitous name-calling" and inviting listeners and guests to make derogatory comments and remarks. She continued:

Of most concern was the threat made by a supporter of the station offering to administer "some good old boy type of payback". Just what did he, and three of his friends, have in mind? Comments such as this, and an announcer saying, "I’ll get you …" are distressing.

[20] She said she did not believe that calls and e-mails to the station in its support warranted the "deliberate barrage of on-air abuse and retaliatory language in an effort to intimidate me out of complaining."

[21] Finally, Ms Watkins noted that she, too, had received a large amount of support. She requested a written apology from the announcers, and from the broadcaster for "condoning and defending the behaviour of the announcers."

The Broadcaster’s Response to the Standards Complaint

[22] The broadcaster was requested by the Authority to provide it with comments on the complaints which were referred on the basis that the broadcasts breached Principle 5 of the Radio Code. In its response to the Authority, the broadcaster maintained that there had been no breach of Principle 5.

The Authority’s Determination

[23] As a preliminary procedural matter, the Authority is required to consider the broadcaster’s request that it decline to determine the complaints on the basis that they are vexatious. The broadcaster argued that the complaints were vexatious for a number of reasons, including the fact the complainant had made "well in excess of 100" complaints to the broadcaster. As noted in Decision Nos: 2002-121–127 dated 19 September 2002, the Authority’s jurisdiction under s.11(a) of the Broadcasting Act allows it to decline to determine complaints on the basis that they are "frivolous, vexatious, or trivial". The issue is not whether the complaint was made vexatiously, but whether it is a vexatious complaint. Both the number of complaints made by the complainant, and the fact that she may have been the only person to have complained about a particular broadcast, are irrelevant.

[24] Section 11(a) of the Act requires the Authority to consider separately whether each of the complaints made by the complainant can be considered "frivolous, vexatious, or trivial". Having considered the nature of each of the broadcasts to which these complaints relate, the Authority does not consider the complaints are vexatious, and declines to exercise its discretion under s.11(a) of the Act. In the Authority’s opinion, the complaints were legitimately made on the basis that the complainant considered that broadcasting standards relating to fairness and privacy had been breached. In Decision Nos: 2002-121–127 dated  19 September 2002, the Authority determined that it will usually have to be satisfied that a complaint has been brought in the knowledge that there was no reasonable prospect of it being upheld, before it will exercise its discretion under s.11(a). In the Authority’s view, this high threshold was not met in relation to any of these complaints.

The Privacy Complaints

[25] When the Authority deals with a complaint that an individual’s privacy has been violated, it must first consider whether the individual was identified by that broadcast. In previous decisions, the Authority has required that a person is able to be identified by the broadcast by more than a limited number of people such as family and close friends.¹ The Authority considers that identification requires the broadcast positively to identify an individual whose privacy is said to have been breached. On this occasion the complainant was not identified by name in any of the broadcasts and no personal descriptive factors were broadcast. The information revealed about her in the broadcasts was limited to the fact of her existence as a complainant, but her specific identity was not revealed:

6 December broadcast – no information about the complainant given beyond the fact that she had "dobbed [The Rock’s] announcers in to the BSA".

11 December (6.19am) – no information given except to draw attention to the fact that someone had complained, that the person was female and was from Hawkes Bay.

11 December (8.35am) – no information given except to draw attention to the fact that someone had complained and that the person had made more than one complaint.

12 December (6.22am) – no information given except to draw attention to the fact that someone had complained, that the person was female and had made about 120 complaints.

12 December (6.54am) – no information given except to draw attention to the fact that someone had complained and that the person was female.

13 December – no information given except to draw attention to the fact that someone had complained and that the person was female and that she had made over 100 complaints.

20 December – no information given except to draw attention to the fact that someone had complained and that the person lived in Hawkes Bay.

7 January – no information given except to draw attention to the fact that someone had complained and that the person was female and lived in Napier.

[26] In the Authority’s assessment, none of the broadcasts contained enough information to make a positive identification of the complainant. Although the Authority accepts that a number of people who were aware of the identity of the complainant through other media or through reading the Authority’s decisions may have linked the broadcasts with the complainant, the Authority is unable to find that such limited identification would cross the identification threshold required to establish a breach of privacy. Accordingly, it declines to uphold the complaints as a breach of s.4(1)(c) of the Broadcasting Act.

Fairness

[27] The Authority now considers whether each of the broadcasts complained about breached Principle 5 of the Radio Code. The complainant considered that the broadcasts, which she maintained had invaded her privacy, were also unfair to her. The broadcaster responded to the privacy complaints within the appropriate statutory timeframe but did not do likewise in relation to the fairness complaints. The Authority has not been helped by the broadcaster’s tardiness, nor by its brief and superficial response to the fairness complaints, provided only after repeated requests. The Authority again reminds the broadcaster of its obligation to ensure it has in place a proper procedure for dealing with complaints under s.5(a) of the Broadcasting Act.

6 December at 6.40am

[28] The Authority considers the comment "Whoever dobbed you in to the Broadcasting Standards Authority is obviously anal retentive" to be a coarse but generalised expression which, in the Authority’s view, described the complainant as uptight. However, in the Authority’s assessment, the comment was not specifically unfair to the complainant in the nature of being threatening or intimidating. Accordingly, it declines to uphold this complaint.

11 December at 6.19am

[29] The Authority upholds this complaint, about an e-mail read by a DJ indicating that the writer was "only too willing to administer some good old boy type of pay back" to the complainant, as a breach of Principle 5. In its view the language which was read out on-air was both threatening and intimidating and the broadcast was unfair to the complainant.

11 December at 8.35am

[30] The Authority upholds this complaint, about another e-mail read by a DJ which suggested the complainant had mental problems, as a breach of Principle 5. It considers that it was unfair to the complainant to suggest she had "mental problems".

12 December at 6.22am

[31] The Authority considers that a DJ’s invitation to the complainant for her to call the station to discuss the reasons why she complained was an approach which was aggressive, but not intrinsically unfair. Accordingly, it declines to uphold this complaint.

12 December at 6.54am

[32] The Authority finds that this broadcast, which suggested that the complainant’s fingers might be "too fat to dial", was puerile. However, it does not consider that it breached Principle 5, and the Authority declines to uphold this complaint.

13 December at 6.20am

[33] The Authority upholds this complaint, in which a DJ described the complainant as "our little moaner who lives down the line". The DJ also read an e-mail in which the writer described the complainant as "very vindictive and very evil" and then made other comments about the complainant, as a breach of Principle 5. In its view the language which was read out on-air (specifically, "She [is] very vindictive and very evil") was both threatening and abusive, and thereby the broadcast was unfair to the complainant.

20 December at 7.37am

[34] The Authority finds that this broadcast, during which one of the DJs said "I’ll get you my pretties" after a discussion about a letter published in a newspaper from a supporter of The Rock, did not convey a sense of physical threat or intimidation so as to constitute unfairness to the complainant. Accordingly, it did not breach Principle 5 and the Authority declines to uphold this complaint.

7 January at 8.34am

[35] The Authority finds that this broadcast, during which a caller said he would "just like to remind the lovely young lady from Napier to take her finger out of her bottom and put it on the dial on the radio and change it" and a DJ replied "Three fingers", was again puerile. However, it does not consider that it breached Principle 5, and the Authority declines to uphold this complaint.

Bill of Rights

[36] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos. 2002-071/072 dated 6 July 2002, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.

[37] For the reasons explained in this decision, the Authority considers that the exercise of its powers on this occasion in relation to the complaints which it has upheld is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints.

[38] In relation to the complaints which the Authority has not upheld, the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with the provisions of the New Zealand Bill of Rights Act.

For the reasons given, the Authority upholds the complaints that the broadcasts on The Rock on 11 December 2001 at 6.19am, 11 December 2001 at 8.35am and 13 December 2001 at 6.20am breached Principle 5 of the Radio Code of Broadcasting Practice.

The Authority declines to uphold any of the other complaints relating to fairness and declines to uphold any of the complaints that broadcasts on the Rock breached s.4(1)(c) of the Broadcasting Act 1989.

[39] Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act. It invited submissions from the parties.

[40] Ms Watkins suggested as an appropriate order either an advertising ban or an order directing the broadcaster to refrain from broadcasting for a period of up to 24 hours. She also asked to receive a written apology from both the broadcaster and the announcers responsible for the breaches. In addition, she sought $250 from the broadcaster as reimbursement for her "reasonable costs and expenses relating to the complaint".

[41] The RadioWorks asked the Authority to take into consideration the "major steps of improvement" that had been taken by The Rock in an attempt to change the style of broadcast; changes which it said had been made as a result of decisions and recommendations made by the Authority in relation to previous complaints. The broadcaster also submitted that an appropriate response would be an apology from the announcers, but that an on-air apology would not be appropriate, given the history between the complainant and The Rock.

[42] The Authority has given due consideration to both parties’ submissions. It acknowledges the broadcaster’s assurances relating to improvements in broadcasting standards since the date of the Authority’s last decision. It also notes that both parties suggested that the announcers should provide the complainant with a written apology. While it is not within the Authority’s power under ss.13 and 16 of the Broadcasting Act to make formal orders in relation to apologies, the Authority recommends that the broadcaster take this action.

[43] The Authority makes the following order:

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders The RadioWorks to broadcast, within one month of the date of this decision, a statement explaining why three complaints were upheld. The statement shall be approved by the Authority and broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders The RadioWorks to pay, within one month of the date of this decision, the sum of $250 by way of reimbursement of expenses to the complainant.

The order for the payment of expenses shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
19 September 2002

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

1. R K Watkins’ Privacy Complaint to the Broadcasting Standards Authority – 30 December 2001
2. Ms Watkins’ Further Privacy Complaint to the Authority – 15 January 2002
3. Ms Watkins’ Standards Complaint to The RadioWorks – 28 January 2002
4. The RadioWorks’ Response to the Authority (Privacy) – 25 February 2002
5. Ms Watkins’ Referral of the Standards Complaint and Final Comment in relation to the Privacy Complaints – 18 March 2002
6. The Broadcaster’s Response to the Authority (Standards) – June 11 2002
7. The RadioWorks’ Submission on Orders – 30 July 2002
8. R K Watkins’ Submission on Orders – 5 August 2002

¹See for example Decision Nos: 2000-136, dated 5 October 2000, 2000-178, dated 7 December 2000, and 2000-179, dated 7 December 2000.