BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

In September 1995, Ms S, a New Zealander, was raped in South Africa. Her name

was given in a news item broadcast on Radio Pacific on the morning of 18 September

1995 during an interview about the incident with a journalist in Johannesburg.

On her return to New Zealand, Ms S complained to Radio Pacific Ltd that the broadcast

contravened the standard requiring good taste and involved a breach of her privacy for

which she should be compensated.

Explaining the "live" interview situation and maintaining that the broadcast of Ms S's

name breached neither the law nor media protocol in New Zealand, Radio Pacific

declined to uphold the complaint. Dissatisfied with Radio Pacific's decision, Ms S

referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989. At that stage, Radio Pacific upheld the privacy complaint and,

although declining any compensation, sent Ms S an apology. Ms S advised the

Authority that she remained of the view that compensation was appropriate.

For the reasons below, the Authority upheld the complaint that the broadcaster's action

was insufficient and ordered compensation of $2,500.

Decision

The members of the Authority have read the correspondence (summarised in the

Appendix). A tape or transcript of the broadcast is not available as the complaint was

received by Radio Pacific after the time during which radio broadcasters are required to

retain tapes. As is its practice, the Authority has determined the complaint without a

formal hearing.

While in South Africa, Ms S was raped. The story was covered by the New Zealand

media. Radio Pacific contacted a night editor on duty in a radio station in

Johannesburg. As part of a "live" broadcast, he spoke to the talkback host on Radio

Pacific on the morning of 18 September.

Because neither a tape nor a transcript was available, the Authority has no details of the

interview between the host in Auckland and the South African journalist. However, it

appears that it was ascertained that there was no embargo on the publication of the

victim's name in South Africa and that it seems to have been published there. At that

stage, the host apparently asked for the victim's name and it was given by the journalist

in South Africa. It was thus broadcast by Radio Pacific.

Some of the victim's family, or people who knew the family, heard the broadcast and it

was reported to the victim's father. He spoke to Radio Pacific's Managing Director the

following day and it was agreed that the name would not be broadcast again.

Upon her return to New Zealand, Ms S, the victim, complained formally to Radio

Pacific and sought compensation of $5,000.

On the basis that it was not illegal to publish the victim's name and as there was no

media protocol dealing with the situation, Radio Pacific declined to uphold the

complaint. It had been a "spur of the moment" decision by an experienced broadcaster

and, it stated, the broadcast could not be described as either reprehensible or gratuitous.

Radio Pacific repeated the agreement it had reached with Ms S's father, that the name

would not be re-broadcast, and offered Ms S the opportunity to appear on a morning

talkback session – in a way in which she would not be named again – to express her

views.

Ms S declined the offer when she referred the complaint to the Authority. She

maintained that the initial broadcast was unfair and expressed particular concern that

some young and elderly family members, whom she had not intended to be advised of

the incident, had learnt of it from the broadcast.

In its report to Ms S, Radio Pacific had noted that it had considered the complaint

alongside a number of standards in the Radio Code of Broadcasting Practice. When

referring the complaint to the Authority, Ms S alleged that the broadcast breached some

of the broadcasting standards to which she had not referred but which had been

nominated by Radio Pacific Ltd and, in addition, named some further standards which

she believed had also been contravened.

The Authority sought Radio Pacific's comments on the referral and, in its response,

Radio Pacific advised that it had decided to uphold the complaint that the broadcast had

breached Ms S's privacy. The host, it continued, acknowledged an error of judgment

and had written to Ms S to apologise.

Radio Pacific maintained that it was not a case where compensation was appropriate. It

reported that the tape was not available to ascertain exactly what had been said or the

extent that the South African journalist's Afrikaans accent had impeded understanding

of his comments. Further, because the incident occurred overseas, the publication of

the name was not illegal in New Zealand. Radio Pacific also pointed out that it had

acted responsibly by accepting the complaint although it was received after the period

when it was obligatory to respond to formal complaints. It concluded:

We take all complaints seriously and we try to respond promptly and in an

understanding manner. Having done so, and for all the reasons outlined above,

and considering that the host concerned has admitted that she made an error of

judgment and has sent a personal apology to the complainant, to further impose a

monetary penalty on Radio Pacific would in our view be unreasonable and unfair.

In her response to the broadcaster's comments, Ms S insisted that compensation was

appropriate despite the letter of apology. The "error of judgment" which had

occasioned the broadcast, she argued, had involved what she described as a

"gratuitous" and appalling invasion of her privacy. She also questioned the sincerity of

the apology, as it had not been made immediately on receipt of the formal complaint.

The Authority first examined the issue of the standards raised by the complaint. As its

task is to investigate and review the broadcaster's decision, it is not the Authority's

policy to examine standards raised in the referral which have not been explicitly raised

in the original complaint.

An alleged breach of the good taste and decency standard (R2) was raised in the initial

complaint. In view of the broadcaster's decision on the privacy matter, the Authority

has subsumed the good taste issue into the acknowledged privacy breach.

Section 4(1)(c) of the Broadcasting Act 1989 requires broadcasters to maintain

standards consistent with the privacy of the individual. The Authority has developed a

number of privacy principles to assist in the application of this provision. The first one

provides:

i)  The protection of privacy includes legal protection against the public

disclosure of private facts where the facts disclosed are highly offensive and

objectionable to a reasonable person of ordinary sensibilities.

In an ideal world, it could be argued that the fact that a person has been a rape victim is

not something which involves any elements of shame or denigration. In reality it does

and, as a result, a victim can justifiably expect that the information shall be treated as

private. That is the basis of the law in New Zealand concerning victims of sexual

violation.

Because of this situation, the Authority was in no doubt that Radio Pacific was correct

in upholding the privacy complaint and that the letter of apology was, at least, an aspect

of the appropriate action which should follow the decision.

The Authority was then required to decide whether that action – the letter of apology –

was sufficient. It accepted that the letter acknowledged the error and expressed genuine

regret. At the same time, as Ms S pointed out, the complaint was not upheld and the

apology written until reasonably well through the complaints process. It was not

upheld, for example, when Radio Pacific responded to the formal complaint initially.

However, on the other hand, Radio Pacific responded formally to the complaint at that

stage when it was not required to do so.

In Decision No: 176/93, the Authority awarded compensation of $2,500 to a rape

victim. That is the highest amount of compensation the Authority has ever awarded.

The rape victim in that case was not named but she was filmed entering the court in a

way which, the Authority decided, would enable acquaintances to identify her. In this

matter, details were different, principally in that the victim's name was published but the

incident did not occur in New Zealand.

The Authority was required to balance competing considerations. It considered that the

broadcast of the name was highly offensive and a serious breach of privacy but it

accepted that it had not been done maliciously. It took into account Radio Pacific's

efforts particularly in initially accepting a late complaint. It decided that compensation

of $2,500 was appropriate.

For the above reasons the Authority upholds the complaint that the

action taken by Radio Pacific Ltd, having upheld the privacy complaint

from Ms S in relation to the broadcast between 9.00–12 noon on 18

September 1995, was insufficient.

The Authority imposed the following order:

Order

For the reasons set forth above, the Authority orders Radio Pacific Ltd

to pay compensation to Ms S in the amount of $2,500.

Signed for and on behalf of the Authority

Judith M Potter
Chairperson
18 January 1996

Appendix

Complainant S's Complaint to Radio Pacific Ltd – 9 November 1995

Ms S complained to Radio Pacific Ltd about what she described as a serious breach of

the good taste and decency standard and an "absolutely unwarranted breach" of her right

to privacy.

Between 9.00am–12 noon on about 20 September 1995, she recalled, Radio Pacific

had broadcast an item about the abduction, assault, rape and robbery of three women

and one man in South Africa. She was one of the women. Radio Pacific, she said, had

broadcast the names of the victims.

When her father telephoned to complain, she wrote, he had been told that the names

were released inadvertently. This situation showed both carelessness and insensitivity.

She also pointed out that had she been raped in New Zealand, it would have been an

offence to publish her name. She reported that she had only recently been told of the

broadcast.

Expressing the opinion that Radio Pacific had been irresponsible and that members of

her family had inadvertently found out about the event from the broadcast, she said it

was totally reprehensible that her name had been broadcast gratuitously. She

concluded:

I ask that this letter be placed before the directors of your Company. I seek

compensation of $5,000.00 for the breach of my privacy. I have already been in

touch with the Broadcasting Authority and I have been advised that prior to

lodging a complaint with the authority I must lodge a complaint and seek

compensation from you.

Further Correspondence

Radio Pacific objected to the Authority that it had recommended that Complainant S

seek $5,000 compensation. The Authority advised Radio Pacific that it had not

recommended that she apply for $5,000 by way of compensation. Rather, it noted, Ms

S was told in response to a question that if a privacy complaint was upheld, she was

entitled to apply for compensation. In its reply, Radio Pacific accepted that the

Authority would not have recommended to Complainant S that she seek $5,000

compensation.

Radio Pacific's Response to the Formal Complaint – 13 November 1995

Radio Pacific's Managing Director (Mr Derek Lowe) advised Ms S that it had not

retained a tape of the item complained about – which was broadcast on 18 September –

in view of the time lapse since the broadcast. However, he recalled that Radio Pacific's

morning talkback host had spoken to the night editor of a radio station in

Johannesburg who, after stating that there was no embargo on the release of any

information, had provided the complainant's name.

Radio Pacific informed Ms S that the host, because of the difficulty of finding someone

to interview in view of the late hour in South Africa, was unable to speak to the

interviewee before the interview began. The interviewee had also told the host that the

names of the victims had been published in South Africa although, because of his

Afrikaans accent, it was difficult to understand clearly some of the information he gave.

In addition, Radio Pacific included comments from the producer of the talkback session

when Ms S's name was broadcast. The producer stated that she had tried to find out the

"media protocol" in regard to incidents which occurred overseas. Her enquiries

suggested the Department of Internal Affairs had been supposed to ask all media not to

broadcast or publish the names of the rape victims. However, she added, at no time

had Internal Affairs contacted Radio Pacific.

Mr Lowe stated that he remembered speaking to Ms S's father after his daughter's name

had been broadcast during the interview. The father asked for, and was given, an

assurance that her name would not be broadcast again. Mr Lowe said that the

information complained about was given during a "live broadcast and the host did not

believe it involved a breach of the law. Moreover, Mr Lowe did not accept that Radio

Pacific had acted in a deceptive manner, or had gratuitously broadcast the name in a

reprehensible manner, commenting:

I assure you that it was a "spur of the moment" decision by a very experienced

and professional talkback host, who felt that the information was in the public

domain.

Radio Pacific stated that the broadcast had not breached Ms S's privacy nor any of the

broadcasting standards relating to news and current affairs.

Noting that Ms S's complaint had not been received within the time frame during which

tapes were required to be retained, Mr Lowe said that as the programme was not

broadcast in South Africa, she had not been put at risk because some of the offenders

were still at large. He added that in view of all the circumstances, it was neither fair nor

reasonable to authorise any payment by way of compensation.

However, although the complaint had not been upheld, Mr Lowe said that Ms S would

be given the opportunity, should she so wish, to appear on the morning talkback

session to register her concern that she had been named. That would take place, he

advised, in such a way that she was not named again.

Further Correspondence

Radio Pacific's Mr Lowe sent the Authority a copy of its letter to Ms S. In a separate

letter, he recorded his understanding that Ms S was unable to refer the complaint to the

Authority.

The Authority advised Mr Lowe that it had been unable to accept Ms S's privacy

complaint directly as 20 working days had elapsed since the date of the broadcast and

the date of the complaint. It was a statutory time limit which applied. However, as the

broadcaster had a discretion as to whether to accept a complaint after 20 working days

had lapsed, and as the complaint subsequently had been accepted, Ms S had 20 working

days from receipt of the broadcaster's decision in which to refer it to the Authority

should she be dissatisfied with it.

Ms S's Complaint to the Broadcasting Standards Authority – 5 December

1995

Dissatisfied with Radio Pacific's decision, Ms S referred her complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. She

began by apologising for misinterpreting the Authority's telephone advice in respect of

the compensation claim.

Ms S sought the Authority's investigation of Radio Pacific's decision on standards R5,

R6, R10, R11 and R13 of the Radio Code of Broadcasting Practice. (They were some

of the standards mentioned by Radio Pacific in its letter of 13 November to Ms S when

it reported to her its decision to decline to uphold her privacy complaint.) Ms S gave

reasons under each nominated standard as to why she considered that it had been

contravened. In summary, she argued that the broadcast had been unfair and contrary

to the principles contained in the New Zealand law. As far as she was aware, she

commented, all the other New Zealand media had respected her privacy by not

publishing her name.

She expressed particular concern that some young and elderly members of her family,

who it had not been intended to advise of the incident, had learned of the matter because

of the broadcast.

Turning to matters discussed by Radio Pacific in its reply to her, she said that her father

disagreed with the broadcaster's recollection of his telephone complaint. Nevertheless,

she accepted that her name was not broadcast after his call, observing "but the damage

had already been done".

Radio Pacific's efforts to ascertain whether her name could be broadcast showed that it

had felt some concern about its actions. Declining Pacific's offer to appear on the

programme as it would put her in a potentially vulnerable position, she concluded:

I strongly urge the Authority to uphold my complaint and to direct Radio Pacific

to pay compensation to me. I do not want any statement broadcast by Radio

Pacific.

Radio Pacific's Response to the Authority – 9 December 1995

When asked to comment on the referral, Radio Pacific's Mr Lowe said that, on

reflection, it had decided to uphold the privacy complaint. The host, he continued,

acknowledged that it was an error of judgment and she had written to Ms S regretting

the broadcast and apologising.

Radio Pacific did not accept that an order for compensation was appropriate for a

number of reasons. First, while admitting it had broadcast Ms S's name, it was unable

to recount the context adequately because the complaint was received outside the period

during which tapes had to be kept.

Secondly, a monetary penalty would suggest that the mistake was at the extreme end of

the scale while no New Zealand laws were broken.

As the third reason, Radio Pacific recorded that Ms S's father had spoken to Mr Lowe –

not the host – and had said that the family would not be taking the matter further.

Because of the assurance, the tape had not been retained.

To impose an order for compensation without listening to the tape would be unjust, was

the next reason advanced.

Fifthly, despite Ms S's claim there was no deliberate deception on anyone's part at

Radio Pacific. Mr Lowe added:

As such a circumstance had never arisen before [the host] was placed in the

position of having to make an instant decision and on this occasion she admits that

she did not make the right one. I have today sent a memo to all Station hosts and

programme producers, pointing out that should a similar situation ever arise,

under no circumstances must a rape victim's name be broadcast, notwithstanding

the fact that the crime might have occurred overseas.

Finally, Radio Pacific pointed out that because the complaint was received after the time

during which complaints had to be accepted, it could have "ducked the issue".

However, Mr Lowe concluded:

We take all complaints seriously and we try to respond promptly and in an

understanding manner. Having done so, and for all the reasons outlined above,

and considering that the host concerned has admitted that she made an error of

judgment and has sent a personal apology to the complainant, to further impose a

monetary penalty on Radio Pacific would in our view be unreasonable and unfair.

Ms S's Final Comment – 15 December 1995

Ms S acknowledged the letter of apology from Radio Pacific's talkback host but, in

view of the time it had taken to be sent, she expressed some doubts about its sincerity.

Because Radio Pacific did not deny that her name was broadcast, she did not accept that

the absence of a tape prejudiced it. Moreover, her name was broadcast as a result of a

leading question. She also said that she believed that the tape was destroyed shortly

before the 35 day period expired during which broadcasters must retain tapes.

By way of general comment, Ms S said that if there had been any doubt about the

publication of the name, an experienced broadcaster should have erred on the side of

caution. In conclusion, she listed three reasons why a monetary penalty should be

imposed:

(a)  The gratuitous invasion of my privacy was appalling.

(b)  The station did not even acknowledge that an error of judgment had been

       made or give an apology until I took my complaint further.

(c)  That [the host] has received few complaints in the past does not alleviate the

      pain and distress that this error, now acknowledged, caused to me.

Further Correspondence

In reply to Ms S's final comment, Radio Pacific advised the Authority (20 December

1995) that the announcer now conceded that she was wrong and that her apology was

genuine. Moreover, it insisted that the broadcast's context was highly relevant and it

pointed out that it involved a situation not previously encountered. Radio Pacific

refuted the contention that the tape was destroyed before the 35 day period had

expired. On Pacific's behalf, Mr Lowe repeated that the complainant's father had said

that he would not be taking the matter further. Pointing to the full and frank apology,

he wrote:

However, I do not think in regard to any possible monetary penalty, the assurance

I received from her father, which followed my promise to ensure that her name

was not mentioned again over air, is relevant.

In conclusion, Radio Pacific did not concede that the broadcast was an appalling

invasion of Ms S's privacy. Rather, it was an error of judgment and, noting the lack

of complaints against the host involved, argued:

Radio Pacific has upheld the complaint but remains of the view that under all the

circumstances it did not sufficiently breach the privacy standards to warrant

monetary compensation.