BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

A conversation with a real estate salesperson about one of his methods for obtaining

the names and addresses of people who were possibly considering selling their home,

and the privacy implications involved in this process, was broadcast on 95bFM at

about 11:15am on 17 July 1997.

Mr Alloway, the real estate salesperson spoken to, advised that he was not told that

the call was being broadcast live and complained to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that it involved a breach of his

privacy. He also complained to 95bFM that the broadcast breached a number of

broadcasting standards.

While apologising for any distress caused by the broadcast, 95bFM did not accept

that Mr Alloway's privacy was breached.

Dissatisfied both with 95bFM's decision on the privacy complaint, and that it did not

reply to the standards complaint, Mr Alloway referred the latter issue to the

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

For the reasons below, the Authority upholds the standards complaint and orders the

broadcaster to pay costs to the Crown of $250. It declines to uphold the privacy

complaint.

Decision

The members of the Authority have read a transcript of the broadcast complained

about and have read the correspondence (summarised in the Appendix). In this

instance, the Authority determines the complaint without a formal hearing.

Mr Alloway, a real estate agent, writes to people who advertise a garage sale in the

"New Zealand Herald". The letter asks whether a house sale is proposed and offers

the services of the company for which he works.

The recipient of one of these letters happened to be an announcer with 95bFM.

While on air, he advised listeners that he had received the letter, commenting in the

introduction:

I'm totally sick of it – getting all this crap from real estate agents.

He also objected to being "hassled to death" by "those bastard" agents. He then

telephoned Mr Alloway. Without telling Mr Alloway that the call was being

broadcast live, or indeed that he was an announcer, he asked some questions about Mr

Alloway's methods of obtaining new listings. He said he objected to the "junk mail"

he received and demanded to know how Mr Alloway gained access to his name and

address details. After concluding the call, he commented:

Well that's Steve Gallaway [sic] from United Realty in Dominion Road. Their

phone number is 6387806 .... very interesting. He's right, that's definitely how

the world is going and they don't care, let's put it that way. 6387806 (repeating

phone number) ... I think we'll send his boss a tape of the call. No doubt he'll

claim his right to privacy 'I didn't know it was being recorded, I didn't know it

was being broadcast on B, Gee Wizz'.

Mr Alloway complained that the call was a breach of s.4(1)(c) of the Broadcasting

Act 1989 which requires broadcasters to maintain standards consistent with the

privacy of the individual. He also claimed the breach of a number of standards in the

Radio Code of Broadcasting Practice. Having examined the matters raised in the

complaint, the Authority considers that Mr Alloway's concerns are encapsulated in

standard R5. It therefore subsumes all matters under that standard. It requires

broadcasters:

R5   To deal justly and fairly with any person taking part or referred to in any

programme.

The response from 95bFM focussed on the privacy matter. It was the issue raised in

the initial complaint. The standards matters were raised subsequently after the

Authority advised Mr Alloway that it was open to him to make a complaint alleging a

breach of standards. The Authority pointed out that, on occasions, the issues raised

by a privacy complainant may encompass standards matters as well as, or in addition

to, privacy concerns.

On this occasion, as noted above, the Authority has assessed the complaint under

s.4(1)(c) of the Act and standard R5 of the Code. It is of the view that the response

from 95bFM addresses all the relevant issues.

The broadcaster, 95bFM, stated that the announcer's behaviour was disappointing

and it apologised for any distress caused to Mr Alloway. The announcer, it added,

had been given a warning.

However, the station did not consider that the call involved a breach of privacy. Mr

Alloway, it argued, had not been abused or denigrated and had been given every

opportunity to respond to the issues raised. His name and telephone number were

public information. Further, as the operation of any service business could be

scrutinised by those to whom the service was directed, the public was entitled to be

advised of the methods used by Mr Alloway.

In his final comment, Mr Alloway said that his office was "inundated" with abusive

calls after the interview. He pointed out again that at no time during the interview was

he told the true purpose of the call. He also questioned the assertion made by the

announcer claiming that the call principally sought information, given the language

used in the broadcast before, during, and after the telephone call.

Under the Radio Code of Broadcasting Practice, broadcasters are required to retain a

recording of all open-line programmes for 35 days after broadcast. While the

Authority appreciates the transcript received on this occasion, it registers its

dissatisfaction at not being able to listen to the broadcast. This is the type of

broadcast where the tone of the participants can be important in deciding not only

whether a breach occurred, but also the seriousness of the breach. Its absence has

made it more difficult for the Authority on this occasion to assess the extent of the

breach.

The broadcaster apologised to Mr Alloway for any distress caused, but it did not

accept a breach of the standards.

The broadcast disclosed the name of the person called, his occupation and his

employer, and did so in a way which the Authority concludes was critical of him. The

disclosure of this information would not have been in question in a broadcast had the

approach to Mr Alloway been to question him openly on the business methods he

used. However, Mr Alloway did not know that the caller was an announcer or that

the interview was being broadcast, so he was not in a position to give consent.

The Authority deals first with the privacy complaint which it considered under

privacy principle v). It reads:

v) The protection of privacy includes the protection against the disclosure by

the broadcaster, without consent, of the name and/or address and/or

telephone number of an identifiable person. This principle does not apply

to details which are public information, or to news and current affairs

reporting, and is subject to the "public interest" defence in principle (vi).

The Authority is divided as to whether the information disclosed was public

information to which the principle applies. The majority notes that the details

disclosed applied only to Mr Alloway's occupation as a real estate agent, and not to

him as a private individual. It was readily ascertainable public information about his

publicly-known role. The majority also points out that Mr Alloway, by writing to

the advertisers of garage sales, provided information about himself to a range of people

in the community, some of whom might object to his approach. Accordingly, the

majority does not accept that the broadcast involved a breach of Mr Alloway's

privacy.

The minority disagrees. On the basis that privacy complaints have to give particular

consideration to the facts of each case, it does not consider that Mr Alloway's actions

in seeking business deserved the public denigration to which he was subjected. The

broadcast, it notes, was aggressive and invited an aggressive response from listeners

towards Mr Alloway and his employer. Taking into account the legitimate sales

method used by Mr Alloway, and the animosity contained in the broadcast, the

minority decides that Mr Alloway's privacy was breached when his name, his

employer's name and his employer's telephone number were broadcast. There was,

the minority concludes, no public interest involved in the broadcast.

The Authority is unanimous that Mr Alloway was dealt with unfairly during the

broadcast. He was questioned critically about his sales methods and the conversation,

without Mr Alloway's knowledge, let alone his consent, he was broadcast by 95bFM.

The decision to uphold the broadcast as a breach of standard R5 is made without

question.

For the reasons above, the Authority upholds the complaint that the broadcast

by 95bFM of the call with Mr Alloway at about 11:15am on 17 July 1997

breached standard R5 of the Radio Code of Broadcasting Practice.

It declines to uphold the privacy complaint.

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

or s16(4) of the Broadcasting Act 1989. The Authority notes that 95bFM apologised

to Mr Alloway for the "obvious distress Mr Alloway has experienced". It also notes

that the announcer has been disciplined.

Notwithstanding the above, the Authority concludes that an order is called for here.

First, whether it was intended or not, there was an element of deception in the

announcer's recording of the conversation and putting it to air without disclosing this

to the complainant. And secondly, the strong language used both before and after the

publication of the conversation tended towards personal denigration of the

complainant. That was unfortunate and beyond acceptable broadcasting practice.

Order

Pursuant to s.16(4) of the Broadcasting Act 1989 (as amended in 1996), the

Authority orders 95bFM to pay costs to the Crown in the amount of $250 within

one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
20 November 1997

Appendix

Mr Alloway's Privacy Complaint – 18 July 1997

Steve Alloway of Auckland complained to both 95bFM and the Broadcasting

Standards Authority about a call he had received on his mobile phone on 17 July 1997

at about 11:15am. Explaining that he was a real estate salesperson who wrote letters

to people who advertised a garage sale, he said that he had been interrogated about a

letter he had sent.

Mr Alloway considered that the caller had been abusive, rude, aggressive and naive,

and had tried to undermine his integrity as a real estate salesperson. At no time, he

added, had the caller associated himself with a broadcaster in any way. Later, Mr

Alloway stated, he had ascertained that the caller was an announcer with 95bFM and

had broadcast the conversation. The conversation had included his name and work

phone number which, Mr Alloway argued, was a breach of his privacy and in

contravention of the broadcasting standards.

Mr Alloway said that he was outraged by the announcer's irresponsible behaviour.

He advised that he had sent a copy of his letter to the announcer.

Mr Alloway's Standards Complaint to 95bFM – 6 August 1997

Mr Alloway subsequently lodged a standards complaint with the broadcaster. He

considered that the broadcast on 17 July breached standards G1, G4, G6 and G7 of

the Television Code of Broadcasting Practice.

95bFM's Response to the Authority – 15 August 1997

Explaining that the matter was being taken seriously despite the complainant's

contention to the contrary, 95bFM's station manager (Adam Hyde) said that the

station was disappointed in the announcer's behaviour but did not consider it to be a

breach of privacy. He added:

We apologise to Mr Alloway for any distress caused by the broadcast on

Thursday 17 July. We have given [the announcer] a warning and he understands

clearly that any further similar behaviour may result in his suspension.

Enclosing a transcript of the broadcast complained about, the station manager denied

that Mr Alloway was abused or denigrated. Moreover, he had been given the

opportunity at the time to respond to the announcer's questions, and had done so.

The station manager acknowledged that Mr Alloway's name, employer and work

telephone number were disclosed. He considered this to be public information, and

maintained that its disclosure was in the public interest, adding:

The operations of any service business is entitled to scrutiny by those at whom

the service is directed. In this case [the announcer] examined the methods by

which some Real Estate Agencies prospect for new business. The public are

entitled to know these methods and to enter into direct dialogue with those

scrutinised.

It pointed out that his home phone number and address were not disclosed. In

conclusion, the station manager again denied a breach of privacy and apologised to

Mr Alloway for any distress to him caused by the broadcast.

Mr Alloway's Response to the Authority on the Privacy Complaint – 28 August

1997

Pointing out in the first response to the Authority that listing and selling real estate

was his livelihood, Mr Alloway said that 95bFM's irresponsible action was affecting

his ability to do his work. He described himself as a victim.

In his second response, also dated 28 August, Mr Alloway explained that he had

obtained the announcer's address when he advertised a garage sale in the "NZ Herald".

After the interview with him had been broadcast, Mr Alloway reported, his office was

"inundated with abusive calls". He commented:

At no time during the "interview" was I informed of the true purpose of the call.

Because of [the announcer's] introduction to this interview I seriously question

his integrity as to the fact that he knowingly and with premeditation placed me

in a position where I could have made unintentional and possibly devastating

comments over an open line to the general public. This has had enormous

repercussions on both myself, my employer and my family.

While 95bFM's station manager had been helpful initially, he had not reported back as

promised. He also questioned the station manager's interpretation of the transcript

and stated that, because of the broadcast:

... I have lost a considerable number of opportunities in my business, both

myself and my family have come under extreme pressure and as a consequence

my health has suffered.

Mr Alloway's Referral of the Standards Complaint to the Authority –

4 September 1997

As he had not heard from 95bFM within the statutory time limit, Mr Alloway

referred the standards complaint to the Broadcasting Standards Authority under

s8(1)(b) of the Broadcasting Act 1989.