BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

A promo for New Plymouth's 93.2 Energy FM's breakfast programme broadcast on a

number of occasions on 25 June referred to the newspaper coverage of Mr B's part in

capturing an armed robber of a chemist's shop. Some of his actions were exaggerated

by the use of imagery reminiscent of Superman although Mr B was not named.

Mr B complained to Energy Enterprises Ltd that the broadcasts had ridiculed him,

were in bad taste and the offered on air apology was insufficient to repair the damage

to his reputation. When he referred his complaint to the Authority, he specifically

complained that the broadcaster had breached his privacy when the item said he was

'hung like a horse'.

While repeating the offer of a suitable on air apology for the promo which was meant

to be humorous – not offensive, Energy Enterprises maintained that the broadcast had

not breached Mr B's privacy. As an apology could aggravate the situation and

because of dissatisfaction with the broadcaster's decision on the privacy aspect, Mr

B's solicitors referred the complaint to the Broadcasting Standards Authority under

s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority decided that because the broadcaster's

ruling on the point was unclear, that the broadcast breached standard R2 of the Radio

Code of Broadcasting Practice. It also decided that the broadcaster's offer of an on air

apology was sufficient and, in addition, it declined to uphold the privacy aspect of the

complaint.

Decision

The members of the Authority have listened to a tape of the programme complained

about and have read the correspondence (summarised in the Appendix) which includes

the press article on which the broadcast was based. As is its practice, the Authority

has determined the complaint without a formal hearing.

An article in the New Plymouth morning paper recorded Mr B's brave actions in

capturing a chemist shop robber the previous day. Mr B was receiving dental

treatment at the time and, after apprehending the robber, returned to the dentist's chair

to finish his treatment. The article reported:

[Mr B] said the excitement of the chase was his biggest buzz since he survived a

night-time fall from an oil rig into the shark-infested China Sea four years ago.

Among other things, he has also survived a stabbing, being electrocuted in Spain

and a plane crash in Australia's Simpson Desert.

'I think I must be an adrenalin junkie. Nothing really fazes me. I don't ever

seem to look at the other aspect. They call me Bungy and the rope's never

broken – yet.'

Energy FM based a promo for its breakfast programme on the story and the item

included the following comments:

This man leaps buildings in a single bound.

He has wrestled a 100kg tiger in Russia.

He has x-ray vision.

He towed a car from Hawera to New Plymouth with his teeth after the car broke

down.

He is hung like a horse.

While these comments were being made, another announcer added on at least three

occasions that they were exaggerations. Notably, the final comment was so described.

Mr B complained to Energy Enterprises that the comments had exposed him to

ridicule, abuse and aggravation. In the letter of complaint, he noted that the offending

trailer had been removed only after he had personally approached the station manager

who had also offered him an apology.

In reply, Energy Enterprises said the item had been removed as soon as the complaint

had been received. It denied that it was intended to cause offence but was meant to be

a humorous 'send up' of a current news item. Nevertheless, the letter included a

written apology and repeated the offer to broadcast a suitably worded on air apology

if Mr B felt that was appropriate.

When Mr B's solicitors referred the complaint to the Authority, they pointed to his

position as a security manager in a well-known nightclub and said that since the

broadcast, he had been the target of ridicule and abuse while at work. The offer of an

on air apology, they added, would not rectify the embarrassment caused by the

broadcast and argued that the comment that 'he is hung like a horse' breached the

standard requiring a broadcaster to maintain standards consistent with the privacy of

the individual.

The solicitors also pointed out that the broadcaster's letter to Mr B in response to the

complaint did not contain the statement required by s.7(3) of the Broadcasting Act

that Mr B was entitled to refer the complaint to the Broadcasting Standards Authority

if dissatisfied with the broadcaster's decision.

On that point, the broadcaster replied that its response to the complaint had not been

completed as it was awaiting Mr B's reaction to the offer of a broadcast apology. Mr

B's solicitors contested this interpretation and pointed out that the word 'decision' in

s.7(3) of the Act did not necessarily mean 'final decision'. Noting that Mr B had

declined such an offer in his formal complaint to the broadcaster, the Authority would

record its agreement with the complainant's solicitors and believes that the broadcaster

should have advised Mr B of his referral rights – as required by s.7(3) – in its letter in

response to the formal complaint. Fortunately, the referral was received by the

Authority within the statutory time limits and, accordingly, it does not intend to take

any further action on this point. It would add, however, that its response might well

be different should the omission recur.

When the broadcaster was asked to comment on the referral, it said it had considered

the privacy matter as part of the original complaint and now, recording the five

privacy principles applied by the Authority, denied that the broadcast had involved a

breach of Mr B's privacy. It repeated that it was still awaiting Mr B's response to its

offer of a suitably 'worded on-air apology'.

In their final comment to the Authority, Mr B's solicitors accepted that the

Authority's five privacy principles might not have been contravened but referred to

the Authority's comment that the five listed principles were not the only ones which

might be applied. They added:

The comment which our client regards as a breach of privacy was of a highly

personal nature. None of the comments made by our client to The Daily News

could have formed a basis for it. Mr B feels strongly that it was an invasion of

his personal privacy and indeed it has had a detrimental effect on his privacy. It

has led to verbal attacks of a very personal nature and a number of notes, similar

to the note provided to you, have been left at our client's place of employment.

As neither the complainant nor the broadcaster nominated initially the standard or

standards allegedly breached by the broadcast, the Authority has been required to

decide what matters were raised in the complaint. It decided that the complaint alleged

a breach of standard R2 of the Radio Code of Broadcasting Practice which requires

broadcasters:

R2  To take into consideration currently accepted norms of decency and good

taste in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

In view of the broadcaster's adamantly expressed opinion that it accepted that the

original letter of formal complaint alleged a breach of privacy, the Authority has also

considered the complaint under s.4(1)(c) of the Broadcasting Act. It requires

broadcasters to maintain standards consistent with the privacy of the individual.

On reading the correspondence, the Authority believed that it could be interpreted to

mean that the broadcaster had in effect upheld the standard R2 complaint, had

apologised in writing and had offered a suitably worded on air apology. Indeed, that

was the interpretation taken by Mr B's solicitors As is his right, Mr B declined the

on air apology as, his solicitors explained, he believed that it would aggravate the

situation.

The Authority is of the view a broadcaster should respond to formal complaints in

such a way that a complainant is fully aware of the broadcaster's ruling. Although the

broadcaster in this instance suggested, or at least hinted, that the complaint alleging a

breach of good taste and decency had been upheld, that conclusion was not stated

explicitly. Thus, the Authority examined the specific comments made during the

broadcast and came to the conclusion, in view of the ridicule directed at Mr B (clearly

the target in view of the reactions with which he had to cope – even if not named

explicitly) and the poor taste of the final comment included in the promo, that the

complaint under standard R2 should be upheld.

In reaching that decision, the Authority accepted that it could well be seen as

endorsing the broadcaster's conclusion. However, in view of the ambiguity of the

broadcaster's decision (together with the further obfuscation on this point in its final

letter to the Authority), the Authority concluded that the matter should be ruled on

clearly.

Having reached that decision, the Authority also decided that an on air apology, as

offered by the broadcaster, was the appropriate action in the circumstances.

With regard to the privacy aspect of the complaint, the Authority agreed with both

the complainant and the broadcaster that the item did not breach the five privacy

principles it applies. It then considered the complainant's submission that the tenor

of the broadcast was such that it amounted to a breach of privacy nevertheless.

In considering this point, the Authority noted that the principles focus on the

disclosure of factual information. They do not refer to matters of abuse which often

raise other broadcasting standards issues – such as good taste or decency (standard R2)

or dealing fairly and justly with people referred to (standard R5). That the current

broadcast involved such issues, rather than the disclosure of factual information, was

apparent from the general tenor of the promo as well as from the comment of another

announcer during the broadcast who remarked on at least three occasions that the

comments were an exaggeration.

The Authority decided that the broadcast clearly involved satire, ridicule and

comments of questionable taste to which standard R2 was relevant. As noted, the

standard R2 complaint was upheld and the Authority agreed with the broadcaster's

offer a suitably worded on air apology. As the offensive broadcast involved ridicule –

and possibly abuse – rather than the disclosure of private facts, the Authority did not

agree with the complainant that the broadcast breached s.4(1)(c) of the Act. The

Authority observed, moreover, that Mr B was free to pursue any other action he

believed was appropriate.

For the reasons above, the Authority decides that the broadcast by Energy FM of

an item on a number of occasions on 23 June breached standard R2 of the Radio

Code of Broadcasting Practice. The Authority considers Energy FM's offer of a

suitably worded on air apology was appropriate and sufficient. The Authority

declines to uphold the complaint under s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Act. It does not intend to do so on this occasion as the broadcaster, although elusive

in its comments on whether or not it had upheld the complaint, apologised to Mr B

and offered, what the Authority believed was appropriate in the circumstances, an on

air apology.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
20 October 1994

Appendix

Mr B's Complaint to Energy Enterprises Limited - 25 June 1994

Mr C B of New Plymouth complained to Energy Enterprises Ltd about an item

broadcast on a number of occasions on 93.2 Energy FM on 22 June.

The complaint, Mr B wrote, concerned a news item run in the morning and early

afternoon bulletins in which he was ridiculed by the following remarks:

This man leaps buildings in a single bound.

He has wrestled a 100kg tiger in Russia.

He has x-ray vision.

He towed a car from Hawera to New Plymouth with his teeth.

after the car broke down.

He is hung like a horse.

Acknowledging that he was not named, Mr B said the broadcast referred to his part in

catching a robber at a local pharmacy which was featured on the front page of that

morning's local paper. He added that he had been telephoned at 7.30am by Mark

Devlin, a member of the broadcaster's staff, but had declined to give an interview.

Mr B stated that he had a high degree of contact with the public and was well-known

because of his job as a security manager at a popular hotel. However, the item, as well

as over-stepping the boundaries of good taste and decency, had damaged his

reputation and had made him a target for ridicule and abuse.

Despite two requests to the station from a friend, the broadcast of the item had

stopped only after he had spoken to the station's manager, Mr Steven Joyce, who had

apologised. However, the announcer who had telephoned and who had broadcast the

item had not contacted him to apologise for what was described by Mr B as 'public

persecution'.

Energy Enterprise Ltd's Response to the Formal Complaint - 19 July 1994

The broadcaster's General Manager, Mr Steven Joyce, responded to the complaint

and began by reporting that the station had no record of Mr B's friend's telephone

calls. Nevertheless, in view of its policy to act immediately on complaints, it had

removed the item from air as soon as Mr B's complaint was received.

With regard to the item itself, Mr Joyce stated that it had not been designed to cause

offence. He continued:

It was intended by Martin in a humorous vein as a 'send-up' of a current

news item that had already received substantial publicity (presumably with

your consent) and was not intended to offend you in any way. Indeed Martin

was surprised when he learnt that it had.

Repeating that he had removed the item - a regular promotional campaign for the

breakfast show - when the complaint was received, Mr Joyce again offered to publish

an on-air apology if that was appropriate. He concluded:

C, we take our responsibilities seriously and do not set out to persecute

members of the public. I'm sorry if you believe we have overstepped the mark

in this case and we will not seek to involve you in any way on the breakfast

show in future.

Mr B's Complaint to the Broadcasting Standards Authority - 15 August 1994

Dissatisfied with the broadcaster's reply, Mr B's solicitors referred the complaint to

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

The letter explained Mr B's role in apprehending an armed robber and enclosed a copy

of the newspaper's report of the events. It added:

Mr B's comments, made while he was in an understandably excited state, were

seized upon by Energy FM.

The article reported that Mr B had said he had survived a fall from an oil rig into the

shark-infested China Sea, had survived a stabbing, an electrocution in Spain and an air

crash in an Australian desert.

Referring to the contents of the broadcast remarks (noted above), the solicitors noted

that Mr B was particularly offended by the final statement which had made him a

target of ridicule and abuse at work.

Pointing out that the broadcaster's response to the complaint had not advised Mr B of

his referral rights under s.7(3) of the Act - such notice being required by law, his

solicitor stated:

Our client is most unhappy with the broadcaster's response to his formal

complaint. An on-air apology will not rectify the embarrassment caused to Mr

B, nor will it compensate him for the ridicule and abuse he has suffered.

Indeed more publicity could only aggravate the situation.

Mr B is concerned by the broadcaster's apparent lack of appreciation that the

item was in bad taste. He finds it surprising that the broadcaster failed to

anticipate that the item could cause embarrassment and offence.

The solicitors also submitted that the broadcast comment 'he is hung like a horse'

contravened Mr B's privacy for which he was entitled to compensation as provided

for in the Broadcasting Act.

Energy FM's Response to the Authority - 29 April 1994

As is its practice, in a letter dated 15 August the Authority sought the broadcaster's

response to the complaint.

Mr Joyce wrote that the station did not accept that the item broadcast on 22 June

breached Mr B's privacy. Referring to the five privacy principles applied by the

Authority, Mr Joyce quoted the report of the incident in the local paper. In addition

to the activities noted above, the article reported Mr B as saying:

I think I must be an adrenalin junkie. Nothing really phases me. I don't even

seem to look at the other aspect. They call me Bungy and the ropes never

broken - yet.

Accordingly, Mr Joyce argued, the report did not breach principle (i) as it had not

involved the public disclosure of private facts.

Mr Joyce said that principle (v) was the only other one possibly relevant and it states

that an individual who consents to the invasion of his or her privacy cannot later

succeed in a claim for a breach of privacy. Mr Joyce commented:

Energy Enterprises considers that Mr B gave the information to the newspaper

and in doing so went public about his 'achievements'. The statement made by

the announcer on Energy FM was clearly satirical.

With regard to the solicitor's comment about the broadcaster's omission of any

reference to s.7(3), Mr Joyce maintained:

The complaint was received attached to a covering letter from Mr B's

solicitors on or about 15 July. Our reply was dated 19 July and included a

written apology. This reply was not a decision. It was a reply with a written

apology and an offer of a suitably 'worded on-air apology'. We were awaiting

a reply from Mr B on the offer before making a decision. In other words no

final decision had been made on the complaint because we were yet to receive a

reply from Mr B as to whether the on-air apology was acceptable.

Mr B's Final Comment to the Authority - 12 September 1994

When asked to comment on the broadcaster's reply, Mr B's solicitors began by

pointing out that the good taste complaint had been upheld.

With regard to privacy, the solicitors noted that the Authority acknowledged that the

principles it applied were not necessarily the only relevant principles. They

continued:

The comment which our client regards as a breach of privacy was of a highly

personal nature. None of the comments made by our client to the Daily News

could have formed a basis for it. Mr B feels strongly that it was an invasion of

his personal privacy and indeed it has had a detrimental effect on his privacy.

It has led to verbal attacks of a very personal nature and a number of notes,

similar to the note provided to you, have been left at our client's place of

employment.

As for the absence in the broadcaster's reply to Mr B as to his right of referral, the

solicitors discussed the provisions in the Act and maintained that the broadcaster's

letter of 19 July to Mr B amounted to a 'decision'. Concern was expressed that the

broadcaster's argument could give rise to the following situation:

Our client could well have been left in a position where he thought that he

could take the matter no further and that his only options were to accept or

decline the offer of an apology. It is exactly this type of powerlessness which

Section 7(3) is designed to avoid and we maintain that the broadcaster was

required to include advice pursuant to Section 7(3) in its letter of 19 July 1994.

Further Correspondence

As is its practice, the Authority sent the broadcaster a copy of the final comment

received from Mr B's solicitors. In a letter to the Authority in response, dated 16

September 1994, Mr Steven Joyce of Energy Enterprises maintained that the

broadcast had not breached the privacy principles. It also repeated its argument that it

had not been necessary to refer to the referral rights under s.7(3) in its letter of 19 July

as it contained a personal apology and sought Mr B's response to 'a suitably worded

on-air apology'. The arguments advanced by Mr B's solicitors, it added, were

inconsistent with the provisions in s.5 of the Act.

It also objected to the approach taken by the solicitors that its letters acknowledged a

breach of the good taste and decency standards, noting:

With respect, that is not entirely the position. Both the letter of 17 August

and the first response to Mr Batten of 19 July 1994 made it clear that Energy

Enterprises' intention was to be humorous and 'not intended to offend in any

way'.

It concluded:

Finally, Mr Batten made it clear in his letter of 25 June 1994 that he was

seeking damages. It is our view that this is totally inappropriate given that the

complainant was more than willing to attract the publicity to himself in the

first instance.

In their response of 3 October 1994, Mr Batten's solicitors did not want to comment

further on Energy FM's letter as did not raise any new issues.