XZ and The Radio Network Ltd - 2004-171
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
ProgrammeMike Yardley Breakfast.
BroadcasterThe Radio Network Ltd # 2
Complaint under section 8(1)(c) of the Broadcasting Act 1989
Newstalk ZB in Christchurch – host Mike Yardley – lead up to local body elections – one candidate facing private prosecution for threatening to kill – had been granted name suppression – situation discussed on Newstalk ZB and questions raised about impact of name suppression order – allegedly breach of privacy, inaccurate and unfair – only privacy referred to Authority
Principle 3 (privacy) – complainant not identified – not upheld
This headnote does not form part of the decision.
 Newstalk ZB in Christchurch (host Mike Yardley) was aware that one of the candidates in the forthcoming local body elections was being prosecuted privately for threatening to kill, and had been granted name suppression by the District Court. The station broadcast this information and advised that the candidate had declined to allow the broadcast of his name. Moreover, it reported, his lawyers had told the station that the broadcast of statements from other candidates denying that they were being prosecuted could breach the suppression order. The talkback host questioned the fairness of the lawyer’s comments and sought comments from listeners on the issue generally. The host stated specifically that the station would abide by the suppression order. The issue was dealt with on broadcasts between 9.00 and midday on 20 and 22 September 2004.
 XZ complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcasts breached his privacy.
 He recalled that he had been contacted by a journalist from Newstalk ZB, who was aware of the private prosecution and the name suppression order, and who advised that he intended to deal with the issue in a news item. Mr Z added that he declined the journalist’s request to allow the publication of his name.
 Nonetheless, Mr Z continued, he had explained the background to the prosecution and the success he had had in civil proceedings against the informant. The journalist, he added, appeared to accept that he was innocent until proven guilty and the name suppression order was appropriate to protect his privacy. However, he wrote:
Unfortunately, having now listened to two of Mike Yardley’s talk shows and how he persistently denigrated the person for hiding behind a “Name Suppression Order,” for not revealing who he was, then broadcasting various statements by various public figures to support this line, my hopes that this matter could be covered by the media in a fair and unbiased matter have been crushed. I’ve never heard such inflammatory bull in all my life.
 Mr Z contended that the broadcasts contravened the standard relating to privacy, noting:
By broadcasting the fact that someone who is standing for a local body position has a suppression order is not only showing total contempt for the spirit of the court order, but is also threatening my privacy by broadcasting the opinion of certain legal people as to whether and how this order can be lifted, and thus inciting political opponents of mine to try and do so.
 Mr Z also complained that two of the statements made during the broadcast were untrue. They were:
that the host had received a threatening call from his solicitor
that during the broadcast on 22 September, the host had said he had negotiated lifting the name suppression order with the candidate and that would occur on the following Friday (the 24th).
 His solicitor had not spoken to the host, but had sent an email. Furthermore, Mr Z had not spoken to the host, but had received an email to which he had not responded. These matters, he wrote, involved the standards relating to accuracy, balance and fairness.
 Mr Z argued that the broadcaster had breached the name suppression order by identifying that it involved a male candidate.
 TRN assessed the complaint under the following criteria in the Radio Code of Broadcasting Practice.
In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.
3a Broadcasters shall apply the privacy principles developed by the Broadcasting Standards Authority
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.
Broadcaster's Response to the Authority
 TRN stated that the issue raised by the complainant – his name suppression order after being accused of threatening to kill a man – had become a major talking point in the local body election in Christchurch. It enclosed some coverage of the matter from The Press.
 TRN said the issue raised by the station was the public’s right to know the background of candidates for public office. Investigating that matter, it added, had involved interviewing some people with relevant legal expertise.
 As for the two alleged inaccuracies, TRN said that the station had not claimed that it had received a telephone call from the candidate’s lawyer, but that he had informed the programme of the matter. The negotiation referred to, it said, was an email offer to the candidate to appear on the show and to lift the suppression order.
 TRN emphasised that the station had stated explicitly that it would not break the suppression order, and it denied that the material broadcast would have identified the complainant beyond being one of some 100 male candidates standing in the local body elections. TRN recommended that the complaint should not be upheld.
Complainant’s Final Comment
 The complainant maintained that the station had used the material “to create a sensation”. It had said, incorrectly, that it had received a threatening call from his solicitor and that it had been negotiating to lift the name suppression when it knew that would not occur.
 Mr Z said that the “false stories” had ignored the impact of the information on his campaign and the feelings of his family. Arguing that the private prosecution was designed to destroy his political career, Mr Z said that following the broadcasts about half of his signs were spray painted with the word “criminal”, and that had caused him stress. Further, following the stories he had failed to be re-elected to the Community Board, by about 100 votes, which was a position worth at least $18,000 a year.
 The members of the Authority have listened to a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Z complained to both the broadcaster (TRN) and the Authority that broadcasts on Newstalk ZB in Christchurch on 20 and 22 September 2004 breached his privacy. The same letter also complained that the same broadcasts were inaccurate and unfair. In its reply sent to the Authority, TRN confined its comment to the privacy issue. Mr Z indicated that he wished to pursue the other aspects of his complaint and, in January 2005, TRN responded directly to Mr Z. It declined to uphold the complaint that the item was inaccurate or unfair.
 Mr Z asked the Authority to review TRN’s decision in regard to the privacy complaint. He did not refer TRN’s response on the other standards matters to the Authority.
 Principle 3 of the Radio Code requires broadcasters to maintain standards consistent with the privacy of the individual. Broadcasters are also required to apply the privacy principles developed by the Authority when determining complaints.
 The privacy standard is relevant when a broadcaster identifies a specific individual. Identification usually occurs when a specific individual is named, or is clearly shown on television. The broadcast of other identifying particulars, other than a complainant’s name or a visual image, have been found sufficient by the Authority on occasions to identify an individual. If it concludes that a complainant has been identified, the Authority then applies the privacy principles to assess whether the identification was accompanied by the disclosure of private facts or by the intrusion into an individual’s interest into seclusion.
 The current complaint does not cross the first hurdle. The broadcaster talked about a candidate in the forthcoming local body elections who was facing a private prosecution for threatening to kill and who had been granted name suppression by the District Court.
 While the broadcaster questioned the wisdom of the name suppression, the candidate was not named. Moreover, no other particular details were disclosed to enable the complainant to be identified. Accordingly, as the complainant’s identity was not disclosed, the Authority finds that the broadcasts did not breach his privacy.
For the above reasons the Authority declines to uphold the complaint
Signed for and on behalf of the Authority
20 April 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- XZ’s formal complaint to The Radio Network Ltd (copied to the Broadcasting Standards Authority) – 22 September 2004
- TRN’s response to the Authority (with attachments) – 7 October 2004
- Mr Z’s final comment – 20 December 2004
- Mr Z’s confirmation, following receipt of TRN’s response on the fairness and accuracy complaint, that he wants the privacy complaint investigated – 2 March 2005