ACMA finds 2GB breached privacy provisions of the Commercial Radio code of practice

October 31, 2012 |

In Investigation Report 2773 ACMA considered a complaint relating to a breach of Clauses 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.

FACTS

During the Ray Hadley Morning Show  on 25 November 2011 Ray Hadley announced the complainant’s name and address on air.

ACMA investigated the complaint under Sections 148 and 149 of the Broadcasting Services Act 1992 and the licensee’s compliance with clauses 2.3(d) [privacy] and 5.5 [response to complainant in writing] of the Commercial Radio Australia Codes of Practice 2011 (the Codes). Hadley stated:

Um, in the meantime, um, just for the benefit of people joining me here, I notice there are two police officers outside. That would relate to a lunatic who has been writing for about the last five years the most vile letters to myself and Alan Jones. In fact, when a member of our staff was gravely ill, that fellow wrote a letter, that I got a copy of, saying ‘I hope you die’. That’s the sort of person we’re dealing with. Now, his name is [X], he lives on [road] at [suburb]. When I came downstairs they told me he’d been abusing Alan from outside the broadcast, so what I did, I walked outside, ‘Officer, g’day, nice to see you both’. I walked outside and told Mr [X] that I’d stick his head up his bum and use him as a jug handle unless he went. So if you’d like to take that statement down I’d be more than happy to supply it and write underneath, ‘Mr [X] belongs in a mental institution, he’s a vile character and I have the documents at work where he’s wished people who’ve been ill who have worked for us would die. The most vile character and he’s mentally ill. So officers, you’ve got a lot more things to do than worry about that bloke, I can assure you.

DECISION

ACMA cited Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158  in determining the ordinary reasonable listener test. It defined such a person as:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs

The relevant provision, at 2.3, provides:

2.3     In the preparation and presentation of current affairs programs a licensee must ensure that:

[…]

(d)        the licensee does not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, unless there is a public interest in broadcasting such information.

ACMA stated that “.. A person is identifiable if, from the broadcast (including audio or visual material), the person’s identity is apparent or can reasonably be ascertained.” Hadley announced the complainant’s name and suburb in which he lived (but referred to an incorrect street name).  ACMA was satisfied that the complainant was identifiable from the broadcast material.  ACMA rejected the submission that the incorrect street address meant that there was not the requisite identification, stating, inter alia:

In our view, a person’s street address is an important identifying feature and, if provided incorrectly using the street address of another person with the same name, creates demonstrable ambiguity around identification.

The Privacy Guidelines provides:

Information that is readily available to the public would generally not be considered to be material relating to a person’s personal or private affairs. However, the broadcast of personal information, such as a person’s address or other identifying details, may be considered private, even if such information has some limited public availability. For example, publication of addresses is recognised as a sensitive matter as it can lead to harassment.

ACMA was satisfied that details of the complainant’s name and address and of his correspondence with the licensee would not be readily available to the public.

ACMA rejected the licensee’s submission that:

  1. correspondence from the complainant to the licensee amounts to consent to the broadcast of the material relating to the complainant’s personal or private affairs.
  2. the fact that the complainant wrote a statement on the back of an envelope sent to the licensee stating: “Hadley to note correct address to broadcast next time” was  directed to future broadcasts, rather than the broadcast of 25 November 2011, and it was not clear that the complainant is consenting to any future broadcast of material relating to his personal or private affairs.
  3. the complainant’s conduct earlier outside broadcast justified the disclosure of his name and address. His conduct would not have created an expectation that his name and address would later be disclosed.
  4. the complainant’s attendance at a subsequent outside broadcast on 13 April 2012 did not amount to consent or justification for the disclosure of personal information in a previous broadcast.

Public interest

ACMA considered whether broadcast of the name was in the public interest.  In that context the ACMA’s Privacy Guidelines identify a number of issues which may be in the public interest as:

Public interest issues include public health and security; criminal activities; corruption; misleading the public; serious anti-social behaviour; politics; government and public administration; elections; and the conduct of corporations, businesses, trade unions and religious organisations.

ACMA found there was no public interest in broadcasting the complainant’s personal information stating:

While the presenter was concerned about the complainant’s behaviour towards 2GB’s staff and the nature of the letters the complainant allegedly wrote to the station, the ACMA does not consider that there was a public interest reason to disclose his identity. The ACMA considers that the broadcast of his personal information was serious, particularly given the manner in which he was described. There was no reason to identify the complainant if the presenter wished to recount the incident which occurred outside the studio and his frustration concerning the event and the complainant’s behaviour.

ACMA also found that the licensee has breached the code by not responding to the complainant’s complaint.

The net result was, according to the ACMA media release (not included in the decision):

2GB will discuss the facts of this case and the ACMA’s findings with all presenters and producers of its current affairs programs, and will incorporate the findings into its training sessions.

The ACMA will not be taking any enforcement action on this occasion as it considers that 2GB’s action in response to the ACMA investigations are commensurate with the breach (bearing in mind that this is the first such breach by this licensee, there is no current indication of systemic issues and the licensee has co-operated with the ACMA).

The investigation also found that 2GB failed to comply with the codes’ complaint-handling requirements.

But that:

Complaints-handling procedures have been improved following a recent review of processes conducted since the broadcast.

ISSUE

For what is regarded as a serious breach of the code the outcome is decidedly anti climactic. A breach of one’s privacy is a serious matter.  The licensee breached the complainant’s privacy in quite an open and deliberate manner. That no enforcement action is taken is incongruous.  The rationale seems to be a version of “its a first offence” coupled with a suggestion that the breach is at the lower end of the scale.

See coverage on the ABC website here and

It is relevant to note that those who oppose a statutory right of privacy cite the ACMA processes as part of the “vast number of laws” (to use the terminology in the latest Law Report) currently in place to protect privacy.  Whether that is really the case is open to conjecture

 

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