Bottom of the Harbour

The Australian Communications & Media Authority (ACMA), the national broadcasting regulator, has taken a permissive stance [doc] in dealing with Harbour Radio Pty Ltd, licensee of Sydney radio station 2GB.

ACMA finds that the broadcaster "has breached the privacy provisions of the Commercial Radio Australia Codes of Practice 2011" and has "failed to comply with the codes’ complaint-handling requirements". 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).

Apart from ACMA's response - no surprises there, consistent with its history of regulatory capture - the matter is fascinating for its insights into corporate conceptualisation of privacy (and defamation) or the ingenuity of its legal advisers

ACMA found that

material relating to a person’s personal or private affairs was used when that person’s full name, street address and suburb of residence were broadcast during the Ray Hadley Morning Show on 25 November 2011. These details were sufficient to identify the person. ‘The broadcast of a person’s name and address without consent is a breach of the privacy protections under the codes,’ said ACMA Chairman, Chris Chapman.

If we move beyond ACMA's bland media release we discover that shockjock Hadley made the following statement during a broadcast in 2011

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.

Hadley provided a name and address. The person who was thus identified and who was characterised as "a lunatic", author of "the most vile letters", as belonging "in a mental institution", as "a vile character",  "the most vile character" and "mentally ill" might not be happy.

He appears to have complained to ACMA, stating that -

My reason for complaining to the ACMA is that Ray Hadley announced my name and address over the airwaves. I would like very much to know just why Hadley chose to do this. I’m not a criminal. 

I’m sure Hadley was miffed that I called the police when he threatened me with physical violence. Is the broadcasting of my name and address about Hadley ‘getting even’? Or is it an exercise in intimidation on Hadley’s part? Is Ray Hadley engaging in mischief-making? Should I be expecting a visit from some disgruntled 2GB supporter? 

In any case, I wish to make a formal complaint to ACMA about the broadcasting of my name and address by Ray Hadley from 2GB. I wish to protest strongly about what I see as an abuse of the public airwaves by Ray Hadley from 2GB.

Harbour's response appears to have been that there are no privacy problems with identification of the complainant, as

In fact, it would appear that another person with the name [complainant’s surname with a different spelling] resides at [the street name actually broadcast] (see the white pages entry for confirmation). While these names are spelt differently, the pronunciation of the names would be identical. 

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.

No major problems for Harbour and ACMA, apparently, as long as you identify the wrong person!

It appears permissible to point to someone who hasn't had any contact with Mr Hadley and describe that person as vile, mad and implicitly dangerous.

ACMA comments that

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. 

Given that there is no public interest in broadcasting the complainant’s personal information, the ACMA finds that the licensee breached clause 2.3(d) of the Codes

Punishment for that breach? Self-reflection and a promise to be good. We might hope that the person who was identified in the broadcast has received a substantial settlement from Harbour Radio regarding what can reasonably be perceived as a defamatory statement.