Investigation Report No. 2773File No. ACMA2012/301

Licensee Harbour Radio Pty Limited

Station 2GB Sydney

Type of Service Commercial Radio

Name of Program The Ray Hadley Morning Show

Date of Broadcast 25 November 2011

Relevant Code Clauses 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice 2011

Date of Decision 24 August 2012

Final Decision Breach of clause 2.3(d) of the Commercial Radio Australia Codes of Practice 2011; and

Breach of clause 5.5 of the Commercial Radio Australia Codes of Practice 2011.

ACMA Investigation Report – Ray Hadley Morning Show -2GB - 25 November 2011

The complaintThe Australian Communications and Media Authority (the ACMA) received a complaint regarding comments made by Ray Hadley during the Ray Hadley Morning Show broadcast on 25 November 2011 by the licensee of 2GB, Harbour Radio Pty Limited. Ray Hadley announced the complainant’s name and address on air.

The complainant referred the matter to the ACMA for investigation.1

The ACMA has investigated 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).

The programThe Ray Hadley Morning Show is a breakfast radio program broadcast on weekdays from 9.00 am to 12.00 pm. The program is described on 2GB’s website as follows:

The Ray Hadley Morning Show brings you the latest news, sport, traffic and weather, with hard-hitting political interviews and commentary. Ray has a reputation for breaking news, and loves to hear from listeners on the open line and via email.2

On 25 November 2011, Ray Hadley made the following comments about the complainant:

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.

AssessmentThe assessment is based on a copy of the broadcast obtained by the ACMA together with submissions from the complainant. Other sources consulted are identified where relevant.

‘Ordinary, reasonable’ listener test

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material broadcast. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener or viewer. That is, what message the ordinary, reasonable listener would have understood was being conveyed by the material that was broadcast.

1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice. The complainant submitted that he was not satisfied with the licensee’s response.

2 http://www.2gb.com/index.php?option=com_content&task=view&id=25&Itemid=39

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Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

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 affairs3.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn.

Once this test has been applied to ascertain the meaning of the material that was broadcast, it is for the ACMA to determine whether that material has breached the Codes.

Issue 1: Privacy

Relevant provision

News and Current Affairs Programs

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.

The Macquarie Dictionary (Fifth edition) provides the following definitions:

Personal: of or relating to a particular person; individual; private […]

Private: relating to or affecting a particular person or a small group of persons; individual; personal […]

Affairs: matters of interest or concern; particular doings or interests […]

Privacy: the state of being private; retirement or seclusion […]

In assessing the segment’s compliance with clause 4.3.5 of the Code the ACMA also took into account the ACMA’s ‘Privacy guidelines for broadcasters, 2005’ (the Privacy Guidelines).

Complainant’s submissionThe complainant submitted to the ACMA 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

3 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

ACMA Investigation Report – Ray Hadley Morning Show -2GB - 25 November 2011 3

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.

FindingThe licensee breached clause 2.3(d) of the Codes.

ReasonsIn considering whether the licensee has complied with clause 2.3(d) of the Codes, the ACMA must determine:

> whether a person was identifiable from the broadcast material; and if so,

> whether the broadcast material relates to a person’s personal or private affairs or invades a person’s privacy.

If the answer to both of the above questions is yes, then there is a potential breach of clause 2.3(b) of the Codes, unless there is a public interest reason for broadcasting the information.

Whether a person was identifiable from the broadcast material

A person is identifiable if, from the broadcast (including audio or visual material), the person’s identity is apparent or can reasonably be ascertained.

In this case, the presenter announced the complainant’s name and the street and suburb where he lives. While it is noted that the presenter referred to the incorrect street name, the ACMA is satisfied that the complainant was identifiable from the broadcast material.

In response to the Preliminary Investigation Report, the licensee submitted that:

In the vast volume of correspondence received by 2GB from [the complainant], [the complainant] has indicated that his address to be [complainant’s street name and suburb]. However, Mr Hadley referred to [the complainant] as being of [the street name actually broadcast].

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.

The ACMA does not accept the licensee’s submission in this regard. While there is another person living in the complainant’s suburb with a similar spelling of his surname, the ACMA considers that the complainant’s identity is nevertheless reasonably ascertainable by some listeners. As indicated by the licensee, the complainant has a significant history of public dissatisfaction with certain broadcasters on 2GB Sydney. As

ACMA Investigation Report – Ray Hadley Morning Show -2GB - 25 November 2011 4

such, there would be at least some members of the public who would be able to ascertain that the complainant was being referred to by Mr Hadley in his broadcast.

Whether material was used that related to a person’s personal or private affairs

The Privacy Guidelines provide that:

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.

The presenter named the complainant in the context of referring to his alleged actions below:

…writing for about the last five years the most vile letters to myself and Alan Jones.

…when a member of our staff was gravely ill, that fellow wrote a letter…saying ‘I hope you die’.

…they told me [the complainant had] been abusing Alan from outside the broadcast…

The presenter also described him as a ‘vile character’, ‘a lunatic’, ‘mentally ill’ and ‘belongs in a mental institution’.

The ACMA is 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. Further, the broadcast of the complainant’s gender, surname, and suburb of residence in the context of the broadcast amounts to use of material ‘relating to a person’s personal or private affairs’ in terms of clause 2.3(d) of the Codes.

In response to the Preliminary Investigation Report, the licensee submitted that:

Name and address

In relation to [the complainant’s] name and address, we observe that the Privacy Guidelines that have been extracted in the preliminary investigation report provide that information that is readily available to the public would not generally be considered to be information that relates to a person’s personal or private affairs, with the exception of addresses - considered to be a particularly sensitive matter.

On this occasion, we observe that Mr Hadley did not broadcast [the complainant’s] address at all – but rather, the address of a namesake. Further, in correspondence with 2GB, [the complainant] invites Mr Hadley to correct that mistake in an on-air broadcast in the following terms:

HADLEY TO NOTE CORRECT ADDRESS TO BROADCAST NEXT TIME

We also observe that, it is generally customary in the talk radio format and, in particular, it is Mr Hadley’s practice, to identify both callers and correspondents by name and suburb. It is clear from the volume of [the complainant’s] correspondence with 2GB that is he a regular listener of the breakfast and morning programs. Accordingly, he would be familiar with this custom and practice.

Correspondence

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For the reasons set out above, none of the correspondence received by 2GB from [the complainant] reflects any of the customary hallmarks of private or confidential correspondence.4

[The complainant’s] conduct at the outside broadcast

As described above, 2GB’s outside broadcast is a public event. Accordingly, the conduct of participants at the event is not a private matter in any sense. Further, [the complainant] does not claim that his conduct at the event was private. To the contrary, he appears to be proud of his conduct.

In his own account of the event (copy attached), he describes his conduct in the following terms: There was me, Jonesey, assorted 2GB hangers-on, a bunch of hard-nosed, flint-eyed car salesmen and about twenty or thirty rednecks, silly old ducks and silly old buggers sitting on plastic chairs – all hanging off Jones’ every word. There I was, deep behind enemy lines!

Even so I took a deep breath, stood up with a copy of “JONESTOWN” held aloft, and loudly urged Jonesey’s gullible claque to educate/inform themselves about their false idol and read the book

……..

I stood on the kerb on Church St. and held up a copy of “JONESTOWN” in the vain hope that passing peak hour motorists might get the message.

This self-authored description is not that of an innocent bystander, quietly minding his own business. [The complainant] was an active and very public participant at the outside broadcast held on 25 November 2011 – with a clear understanding, if not intention, that his actions would draw public attention to himself.

The ACMA reiterates its finding above that the complainant’s identity would have been reasonably ascertainable by some listeners regardless of the reference to the incorrect street name. The obligation at clause 2.3(d) concerns material that is actually broadcast. Although it may be customary for the name and suburb of talkback callers to be broadcast, the complainant’s details were not quoted in a talkback context.

The ACMA does not accept the licensee’s submission concerning the complainant’s correspondence. It does not consider that a licensee can discharge its obligation under clause 2.3(d) of the Codes by obtaining, unsolicited, later correspondence from the person whose personal or private affairs are at issue. The question in relation to the application of clause 2.3(d) is whether there is a public interest in broadcasting the information.

The ACMA does not consider that the 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. In this regard, the ACMA is of the view that the complainant’s statement on the back of an envelope sent to the licensee stating: “Hadley to note correct address to broadcast next time” is directed to future broadcasts, rather than the broadcast of 25 November 2011, and it is not clear that the complainant is consenting to any future broadcast of material relating to his personal or private affairs.

4 The licensee provided examples of the complainant’s communication with the station in which the content is set out on the external face of the envelopes.

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Further, the ACMA does not consider that the complainant’s conduct at the earlier outside broadcast justified the disclosure of his name and address. In that broadcast, no personal information was revealed about the complainant, and his conduct would not have created an expectation that his name and address would later be disclosed.

In support of its submissions the licensee also referred to the complainant’s attendance at a subsequent outside broadcast on 13 April 2012. Again, conduct at a later date does not amount to consent or justification for the disclosure of personal information in a previous broadcast.

As such, the ACMA considers that in disclosing details of the complainant’s gender, name and (albeit incorrect) address, in the Ray Hadley Morning Show broadcast on 25 November 2011, the licensee used material ‘relating to a person’s personal or private affairs’ in terms of clause 2.3(d) of the Codes.

Whether there was a public interest in broadcasting the information

The broadcast of personal information will not breach the Codes if there is a public interest in broadcasting such information. The public interest is assessed at the time of the broadcast.

Whether something is in the public interest will depend on all the circumstances, including whether a matter is capable of affecting the community at large so that citizens might be legitimately interested in or concerned about what is going on.

The ACMA’s Privacy Guidelines identify a number of issues which may be in the public interest:

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.

The presenter purported to announce the complainant’s name and address in the course of describing his altercation with the complainant outside the studio.

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.

Issue 2: Response to complainant in writing

Relevant provision

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Advice in Writing

5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint…

Complainant’s submissionThe complainant submitted to the ACMA in an email of 13 February 2012 that:

With respect of my complaint….about 2GB broadcaster Ray Hadley, I wish to advise that 2GB has not responded to this complaint. I submitted the complaint on the 8th December 2011 both electronically and by registered mail. I have previously provided you with a copy of the Australia Post docket relating to this submission.

FindingThe licensee breached clause 5.5 of the Codes.

ReasonsThe complainant provided the ACMA with a copy of a signed Commercial Radio Codes of Practice Listener Complaint Form dated 8 December 2011 which adequately identified the material broadcast and disclosed the complainant’s details. Whilst the complainant did not indicate the relevant Code provision, the ACMA considers that it was clear from the summary of his complaint that it related to a breach of privacy. He stated:

…When Ray Hadley went on air he gave an account of events and proceeded to broadcast my name and address. Whatever the previous correspondence between myself and 2GB, this to me is an intimidatory action by Ray Hadley and is unacceptable under [the] broadcasting guidelines.

The complainant provided the ACMA with a copy of a registered post Lodgement Receipt from Australia Post stamped 8 December 2011 addressed to ‘2GB Radio, The Compliance Officer, GPO Box 4290, Sydney, NSW, 2001’.

The complainant also provided a copy of an online complaint form, separately lodged by him, in which he indicated that his complaint was a ‘General complaint’ rather than an assertion that ‘the station has broadcast matter which breaches the Commercial Radio Australia Codes of Practice’.

Whilst the complainant did not indicate that the online complaint was a ‘Code complaint’, the ACMA is satisfied that the complaint sent to the licensee by registered post warranted a substantive response.

The complainant submitted that he did not receive a response. The ACMA requested the licensee’s submission5 with regard to its compliance with clause 5.5 of the Codes. The licensee did not provide a response in relation to this request.

On the basis of material before it, the ACMA is satisfied that the licensee failed to provide a response to the complainant as was required, and accordingly finds that the licensee breached clause 5.5 of the Codes.

5 ACMA emails dated 13 March 2012, 21 March 2012, 4 April 2012 and 17 April 2012. The ACMA also left telephone messages on 4 April 2012 and 16 April 2012.

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In response to the Preliminary Investigation Report, the licensee submitted that:

Our view of the judgment of Justice Buchanan in the Federal Court case of Harbour Radio Pty Limited v Australian Communications and Media Authority is that, for the purposes of Code 5, there is a requirement that a complaint asserts a breach of the Codes of Practice.

In particular, we note the following observations of His Honour at paragraph 38:

….. In my view, it is apparent from the terms of Code of Practice 5 that those who developed the code thought it important that it be apparent from the terms of a complaint that it constituted an allegation of breach of the Commercial Radio Codes.

And at paragraph 40:

What is needed is an assertion that, in the opinion of the writer, a code has been breached. That condition was not met in the present case.

In his complaints to 2GB, [the complainant] has not asserted breach of the Commercial Radio Codes. To the contrary, when faced with the choice of making a complaint that was an assertion that the broadcast matter with breaches the Codes, [the complainant] selected the alternative - a General Complaint. Similarly, in the written complaint, [the complainant] does not assert a breach of the Commercial Radio Codes.

In our view, the result of the application of His Honour’s decisions to [the complainant] complaint is that [the complainant] complaint did not fall within Code 5.2 with the effect that the requirements of Code 5.5 did not apply.

The ACMA accepts the licensee’s submission that the online complaint does not meet the requirements outlined in clause 5.1 of the Codes given that it is expressed to be a general one, in circumstances where the complainant is given a choice of specifying that the complaint is about compliance with the Codes.

By way of contrast, the ACMA considers that the complainant’s posted complaint is clearly in a form designed for complaints about breaches of the Codes and must be read in that context. By completing and submitting the form entitled “Commercial Radio Codes of Practice – Listener Complaint Form”, which includes the proviso that the complainant “may only use [the] form if [they] wish to make a complaint... that a... broadcast has breached the Codes”, the ACMA considers that the complainant is asserting that the broadcast breached the Codes.

This view is supported by the fact that the complainant noted in the free text that he is of the view that the content of the broadcast was “unacceptable under broadcasting guidelines”. While the word ‘Codes’ is not used by the complainant, considering the document as a whole, the ACMA is satisfied that the reference to “broadcasting guidelines” is a layperson’s reference to the Codes. As such, the posted complaint meets the requirements of clause 5.1.

The licensee also submitted that:

Perhaps more significantly, 2GB received and considered [the complainant’s] complaints within the context of a longstanding series of insulting and abusive correspondence, of which these complaints form only a minor part. In that context, [the complainant’s] complaints were vexatious and/or an abuse of the complaint process for the purposes of the exceptional provisions in Code 5.8.

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You will appreciate that 2GB received these complaints after 2GB had received the much longer two page account of the outside broadcast from [the complainant] (attached), which includes the following statements:

There was me, Jonesey, assorted 2GB hangers-on, a bunch of hard-nosed, flint-eyed car salesmen and about twenty or thirty rednecks, silly old ducks and silly old buggers sitting on plastic chairs – all hanging off Jones’ every word

……….

As for the “vile things” Hadley announced I’d said in previous correspondence – I’ve only said vile things about Alan Jones because Jones is a vile person. As for my “wishing people dead” at 2GB.

…..

I’ve only ever wished Alan Jones dead.

We can provide the ACMA with many other examples of insulting, derogatory and offensive correspondence from [the complainant] to 2GB, received both in the recent years after the 2011 broadcast and also stretching back to 2009. Please let us know if you would like us to provide you with a broader selection of this material.

In this context, 2GB has treated [the complainant’s] complaints as vexatious and as an abuse of the complaint process under the Code. For the purposes of Code 5.8, we consider that this opinion is reasonable for reasons including those set out above.

The licensee submitted that the complainant’s complaint s were ‘vexatious and/or an abuse of the complaint process’ for the purposes of Code 5.8 of the Code.

The ACMA considers the following, in the context of clause 5.8:

the term “vexatious” refers to complaints made without sufficient grounds, and serving only to cause annoyance; and

the term “abuse of process” refers to pursuing a complaint for an improper or ulterior purpose.

The ACMA does not consider that the licensee could form the reasonable opinion that the complaint was vexatious. The complaint was made with sufficient grounds, and notwithstanding the history of correspondence from the licensee, the ACMA does not consider that it was reasonably open to the licensee to conclude that the complaint was made only to cause annoyance.

Further, the ACMA is not satisfied that the licensee could reasonably form the view that the complaint was made for an improper, ulterior purpose, and that therefore it was an abuse of the complaint process under the Codes. Similarly, notwithstanding the complainant’s history of correspondence with the licensee, the complaint itself had substance. In this context, it is noted that the complaint concerned the broadcast by the licensee of the complainant’s personal information.

In regard to the licensee’s reference to other correspondence from the complainant, in order to demonstrate that the complaint could reasonably be considered to be vexatious or an abuse of the complaint process under the Code, the ACMA notes that clause 5.8 of

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the Codes requires examination of the particular complaint rather than the complainant or his or her previous conduct.

In conclusion, the ACMA reiterates its finding that the licensee breached clause 5.5 of the Codes in this instance.

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