BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A song requested on Xtreme 100FM on 29 July 1997 was prefaced by a dedication to

two named students of a named local high school, congratulating them on their baby.

The father of one of the students named complained to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached

the privacy of the students. He also complained to the station that the reference to

the baby was completely untrue and had caused a great deal of distress and personal

ridicule to both students, who were readily identifiable.

By way of explanation, Xtreme 100 FM advised that the dedication came in by way

of a fax, and that the programme host read the announcement in good faith. It was

unable to locate the fax to identify its source. The station apologised for the problems

caused by the announcement.

Dissatisfied with Xtreme 100's response to the standards complaint, Mr X referred

that matter to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaints and orders HB

Media Group to pay costs to the Crown in the amount of $250.00 and compensation to

the complainant's son in the amount of $250.00.

Decision

The members of the Authority have listened to a tape of the item and have read the

correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaints without a formal hearing.

When a note was left in a student's school bag telling him to be sure to listen to the

request session that evening on Xtreme 100FM, the student, who was going to be out

for the evening, taped the programme. The dedication after one of the songs stated:

"and it's especially for (boy's first name and initial) and (girl's name) of

(named) High School – Congratulations on the baby."

The programme was broadcast during the evening of 29 July 1997. The item to which

this complaint refers was broadcast at 8.10pm.

The father of one of the students complained on his son's behalf. He stated first that

the students named were both readily identifiable since they were the only ones at

that school by those names. The reference to the baby was completely unfounded

and had created extreme distress and personal ridicule to both of them.

Mr X advised that he contacted the station directly to try to ascertain the source of

the message. The Station Manager advised that he believed it was a faxed request and

would check. When Mr X telephoned back a few days later, he was told that the fax

could not be located. Mr X complained that the broadcast not only breached the

privacy of the two students, but was unfair to them because it damaged their

reputations. He expressed his annoyance that the fax was not located, and considered

it indicated a lack of professionalism on the part of the broadcaster that it did not have

better systems in place to retain faxed requests.

When it responded to Mr X, the HB Media Group on behalf of Xtreme 100FM

expressed concern that a student at the High School had set up a fellow student for

embarrassment. The Group noted that it was the second time this had happened in a

month. Describing the show as a "fun, entertainment-based programme", the Group

emphasised that its announcer had a good sense of judgment and said it considered

that he controlled the show well. Its policy was to avoid using surnames in order to

avoid malicious calls, it said. On this occasion, it argued, the announcer had no way of

knowing that the call was not genuine. It did not provide a tape of the broadcast.

The Group advised that it had been unable to locate the fax containing the message,

explaining that it was difficult as it received about 200 faxes a day and about 160,000

telephone calls a month. It apologised for what happened. In its response to the

Authority, the Group reported that it had developed a system for the broadcast of

faxes, letters and calls to ensure that the writer would be identifiable.

The Authority deals first with the broadcaster's inability to provide a tape of the

broadcast. Under the Radio Code of Broadcasting Practice, broadcasters are required

to retain, for a period of 35 days, tapes of open line programmes such as this.

Fortunately, on this occasion, the complainant was able to provide a copy of the tape,

which the Authority has listened to.

The Authority turns next to the privacy complaint. When dealing with privacy

issues, the Authority applies a set of privacy principles which it has developed in

respect of complaints which allege a breach of privacy. Of the seven privacy

principles which it has developed, it considers two are relevant on these facts. They

are privacy principles i) and iv) which read:

i)  The protection of privacy includes protection against the public

disclosure of private facts where the facts disclosed are highly

offensive and objectionable to a reasonable person of ordinary

sensibilities.

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.

With respect to principle i), the Authority considers the public disclosure of private

facts about the two identifiable individuals – regardless of the veracity of those facts –

is offensive and objectionable to a reasonable person, and is therefore in breach of

principle i). The students themselves did not invite the unwelcome publicity, and are

entitled to protection from the disclosure of a malicious lie. It is not a defence, in the

Authority's opinion, for the broadcaster to claim that the announcer did not know

that the facts were untrue, or to attempt to lay the blame with the students who made

the request. The responsibility rests with the broadcaster, and unless it has systems

in place to ensure that such breaches cannot occur, any broadcaster is vulnerable to the

kind of abuse of the airwaves that occurred on this occasion.

Next, the Authority applies privacy principle iv). That principle protects against the

disclosure of private facts to abuse, denigrate or ridicule an identifiable person. In the

Authority's view, this principle was also breached by the broadcast. The students

were identifiable and a malicious rumour about them, which was intended to attack

them personally, was broadcast.

The Authority next examines the complaint under the Radio Code of Broadcasting

Practice. The relevant standard is standard R5, which requires broadcasters:

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

      any programme.

The Authority concludes that it is manifestly unfair that two students were named on

the request programme in such a way that their identities were known to their peers,

and that a message was broadcast about them which was untrue and malicious. The

Authority acknowledges the broadcaster's support of its announcer's sense of

judgment. It can only question that judgment in this instance. Whether the facts of

the matter were as described, it considers it questionable that the birth of a child to

two people identified as schoolchildren would be likely to merit widespread

unsolicited publicity.

The Authority decides that the students were not dealt with fairly and that the

broadcaster demonstrated a lapse of judgment by repeating the remark. The

Authority does not accept the station's argument that it was simply being used as a

conduit for the message and reiterates that it is the broadcaster's responsibility to

ensure that standards are complied with. It reminds the broadcaster that its target

audience of teenagers are capable of misusing the airwaves, as has been demonstrated,

and that it should therefore ensure that adequate systems exist to prevent such an

event recurring.

For the reasons set forth above, the Authority upholds the complaint that an

item broadcast on Xtreme 100FM by HB Media Group on 29 July 1997 breached

s.4(1)(c) of the Broadcasting Act 1989 and standard R5 of the Radio Code of

Broadcasting Practice.

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

Broadcasting Act 1989. Because of the nature of the remarks broadcast and the

detrimental effect on the young people concerned, the Authority considers the breach

to be serious. It orders the broadcaster to pay compensation of $250.00 to the

complainant's son.

The broadcast was an open line programme for which, under the Radio Code, the

broadcaster is obliged to retain a tape of the broadcast for a period of 35 days.

Fortunately the complainant provided the Authority with a copy of the tape, so its

absence did not impact on the Authority's ability to decide the complaint. However,

the failure to provide a tape is a factor which the Authority considers, along with the

breach of standard R2, when it orders the broadcaster to pay costs of $250.00 to the

Crown.

Orders

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, HB Media Group Ltd, as

broadcasters of Xtreme 100 FM is ordered to pay compensation to Mr X's son in

the sum of $250.00.

Pursuant to s.16(4) of the Broadcasting Act 1989, the broadcaster is ordered to

pay costs to the Crown in the sum of $250.00.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 December 1997

Appendix

Mr X's Complaint to Xtreme 100 FM – 28 August 1997

Mr X of Napier complained to Xtreme 100 FM that an announcement on a request

programme was a breach of his son's privacy and the fact that the message was

completely without foundation was extremely unfair to the named parties (both high

school students).

He referred to a telephone conversation with the station manager in which he was

advised that the fax on which the message was sent was not able to be found. He

considered that an indication of the lack of professionalism at the company.

In the circumstances, Mr X believed a letter of apology was the least he could expect.

In a letter dated the same day, Mr X wrote to the Broadcasting Standards Authority.

He complained that the broadcast breached his son's privacy by referring to him by

name in the following message:

 "...and it's especially for (son's first name and initial) and (girl's name) of

Tamatea High School – congratulations on the baby...what".

Furthermore, he continued, the message was entirely without foundation.

Mr X advised that the assistant principal of the school would confirm that there was

only one boy by that name and one girl by the name at the school and there could be

no doubt as to who the message was for. The reference to the baby was completely

unfounded and the statement had caused extreme distress and personal ridicule to both

students. He added:

As you can well imagine, this type of "mud" sticks and they are still being

hassled by their fellow students.

Mr X noted that he contacted the station manager to try to ascertain where the

message had come from, and was told it was probably a faxed request and that the

station manager would check. When Mr X contacted him later, he was told that the

fax could not be found.

In Mr X's view, it was somewhat incredible that the fax could not be found. He

referred to proposed changes to be made in the format of the programme as detailed

by the station manager, but in his view they were too late, and did nothing to ease the

suffering or reputation of two young people hurt by the irresponsible broadcast.

He asked that the Authority reprimand the station for its lack of professionalism.

Xtreme 100 FM's Response to the Formal Complaints – 4 September 1997

Xtreme 100 FM apologised for the fact that a student had used its request show to set

up a fellow student for embarrassment.

The Station Manager emphasised that the request show was a fun entertainment

programme where occasionally listeners set each other up for fun. However, the host

had a good sense of judgment and controlled the show well, he said. He noted that the

station had a policy to avoid using surnames in case the call was malicious. In this

case, he argued, the host had no way of knowing that the message was not genuine.

The Station Manager advised that he had attempted to find the fax but since so many

were received each day, he had been unable to do so.

He advised that he had asked the school to allow him to come and talk to the students

about the problems raised by such calls. He also noted that the station's new policy

was to allow callers to request the song and dedicate it, but not to make any other

comments.

The station apologised for what had happened and assured Mr X that it had done its

best to fix the situation.

Mr X's Referral to the Broadcasting Standards Authority – 10 September 1997

Dissatisfied with Xtreme 100's response to his complaints, Mr X referred them to the

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

Mr X repeated his concern that the fax which could hold the key to the malicious

announcement had been lost. He also expressed scepticism that the show's host had

some "almost infallible way of knowing that 'congratulatory' calls are not malicious."

Although he understood that the host had a busy time on the programme, Mr X

repeated that it was the fact that there appeared not to be a reliable filing system that

gave him the most concern.

Xtreme 100 FM's Response to the Authority – 21 October 1997

The Station Manager advised that he regretted Mr X's dissatisfaction with its

response and its explanation of how the incident occurred.

He explained that over 200 faxes per day were received, and at least 160,000 calls per

month and it was close to impossible to keep an accurate record of all of the

communications. Since the incident, the station had developed a system for the

broadcast of letters and faxes, to ensure that should it occur again, the blame would fall

on the writer rather than the bearer of the message.

The Station Manager noted that it was usually easy to recognise the malicious calls,

but on this occasion, a congratulatory note to the couple had not been picked up on as

being malicious.

A sincere apology was offered, and an assurance that systems were in place to

prevent similar incidents.

Mr X's Final Comment – 22 October 1997

Mr X provided the Authority with a copy of a tape of the programme.

He advised that it was his understanding that the Station Manager considered the

incident to be a set-up against the station and this was why the request was taped. In

fact, he pointed out, an anonymous note was placed in his son's bag at school telling

him to listen to the request session. As his son was at band practice at the time, he

taped the show so that he could listen to it later.