Investigation Report No. 3169

File no. ACMA2014/146

Broadcaster Radio 2SM Pty Ltd

Station 2SM Sydney

Type of service Commercial Radio

Name of program John Laws

Date of broadcast 25 November 2013

Relevant code Clauses 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice and Guidelines September 2013

Date finalised 27 June 2014

Decision Breach of clause 2.3(d) (privacy)No breach of clause 5.5 (complaints handling)

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013

Background On 13 February 2014, the Australian Communications and Media Authority (the

ACMA) commenced an investigation into a segment of the radio program John Laws, broadcast on 25 November 2013 by Radio 2SM Pty Ltd, the licensee of 2SM (the licensee).

John Laws, broadcast on weekdays between 9.00 am and 12.00 pm, is described by the licensee on its website as follows:

John Laws is the undisputed 'King' of Talkback radio, after all he's been doing it for over 54 years. John cuts thru [sic] the political spin and asks the hard questions, often unsettling politicians. If it's news, information, entertainment and talkback you're after, there is only one choice, John Laws, weekdays from 9am.1

The complaint is that at two separate points during a broadcast of the program on 25 November 2013, Mr Laws read out the complainant’s ‘personal phone number’. The complainant submitted the following:

...During the program, my personal phone number was read aloud by John, on more than one occasion. This was after being critical, as listeners are able to be. I believe that this is a serious breach of my privacy... the incident on your airways has caused me much distress.

The licensee’s submissions can be found in full at the Attachment.

The licensee has submitted that approximately three weeks after receiving the complainant’s initial complaint, it responded to the complainant at the address provided in his complaint.

Approximately one month after sending this response to the complainant, the envelope was returned to the licensee marked ‘Not known at this address – Return to sender’.

As he had not received a response from the licensee within 60 days of making his complaint to the licensee, the complainant made a complaint to the ACMA under section 148 of the Broadcasting Services Act 1992.2

This investigation report is based on the complaint, the licensee’s response and a copy of the broadcast material provided to the ACMA by the licensee. Other sources have been identified where relevant.

The investigation has considered the licensee’s compliance with clauses 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Code):

1 http://2smsupernetwork.com/john-laws/ . 2 Subparagraph 148(c)(i) and section 149 of the BSA set out the ACMA’s role in investigating

complaints relating to breaches of codes of practice.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 2

Code of Practice 2: 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.

Code of Practice 5: Complaints

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. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.

Issue 1: PrivacyFindingThe ACMA finds that the licensee breached clause 2.3(d) of the Code.

Reasons The licensee has acknowledged that Mr Laws read the complainant’s personal phone

number on two occasions during the broadcast. It submitted that the complainant antagonised Mr Laws via email and over the telephone, and goaded him into reading out his telephone number.

The licensee’s submissions can be found in full at the Attachment.

The broadcast of 25 November 2013 included two segments in which Mr Laws responded to emails from the complainant criticising his response to an earlier caller and referring to ‘cash for comment’.

In the first segment Mr Laws described the complainant as a ‘spineless son-of-a-bitch’ and a ‘gutless idiot’ because he had not included a second name and said, ‘nor do you have the guts to put a contact number because I’d like to talk to you’. Later he said, ‘unless, however, [name] you’d like to send us an email with a contact number so that one of the handmaidens could ring you and I could talk to you on the air…’

In the second segment Mr Laws gave the complainant’s full name twice. He explained that the phone number had been left off the earlier email by the ‘handmaidens’ and apologised for ‘having a go’ at the complainant and said it should not have happened. He then twice broadcast the complainant’s phone number.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 3

The ACMA’s Privacy guidelines for broadcasters, December 2011 (the privacy guidelines) explain the ACMA’s approach to assessing compliance with the privacy obligations in broadcasting codes of practice.

As outlined in the privacy guidelines:

When investigating the alleged breach of a code privacy provision, the ACMA-once satisfied that the broadcast attracted code privacy protections-will consider the elements of a breach:

Was a person identifiable from the broadcast material?

Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?

If the answer to both of the above questions is yes, then there is a potential breach of code privacy provisions.

The ACMA will then consider:

Was the person’s consent obtained-or that of a parent or guardian?

Was the broadcast material readily available from the public domain?

Was the invasion of privacy in the public interest?

If the answer to any of these is yes, then there will be no breach found.

Mr Laws read out the complainant’s first name and surname and phone number during the broadcast. The ACMA is satisfied that the complainant’s identity would have been apparent, or could reasonably have been ascertained, from the segment. Accordingly, the complainant was identifiable.

As outlined in the privacy guidelines, the Code (including clause 2.3(d)) protects against the broadcast of material that:

o relates to a person’s personal or private affairs – for example, by disclosing personal information; or

o invades a person’s privacy – for example, by intruding upon the person’s seclusion.3

In a previous matter, the ACMA has found that the broadcast of a complainant’s name and address in the context of a broadcast amounts to the use of material ‘relating to a person’s personal or private affairs’.4

Similarly, the ACMA considers that the broadcast of a name and mobile phone number amounts to the use of material relating to a person’s personal or private affairs as it enables direct contact to be made.

Although some addresses and mobile phone numbers may be accessible from certain public databases, as noted in the privacy guidelines, personal information need not be secret or confidential in order to be private.5

3 Page 2 of the privacy guidelines.4 See Investigation 2773, August 2012.5 Page 3 of the privacy guidelines.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 4

The broadcast of the complainant’s phone number disclosed his personal information for the purposes of the Code.

The licensee does not dispute that the telephone number was read out by Mr Laws, but argues that clause 2.3(d) of the Code was not breached, for the following reasons:

o There was implied consent on the part of the complainant that his phone number be read out by Mr Laws;

o There was an identifiable public interest in having the phone number read out; and

o The complainant had ‘goaded’ Mr Laws into reading out the phone number.

As outlined above, pursuant to the privacy guidelines, if the consent of the complainant was obtained prior to the personal information being broadcast, then clause 2.3(d) will not have been breached.

In this case, it is common ground that the complainant had written an initial email to Mr Laws which was read out on the program, without the complainant’s telephone number. As noted above, Mr Laws commented on the absence of a contact number.

It is also common ground that the complainant then wrote the following email to Mr Laws:

I had my number on the email!!I just double checked sent items, big tough talk you are, based on a mistake!!Pathetic to dwell on the absence of a surname, and selective blindness not to see my number![Complainant’s name][Complainant’s mobile telephone number]

The licensee submitted that the complainant’s email constituted his consent to having his telephone number read out on the program by Mr Laws, and suggested he wanted it to be read. It has also submitted that there was a level of ambiguity around this matter.

The ACMA does not accept these arguments. The earlier segment was most likely to have been understood as saying the phone number would be used so that Mr Laws’ assistants could make contact with the complainant to set up a conversation with him either on or off air. There was no indication that the phone number would be broadcast.

Further, in the context of the earlier segment, the purpose of the complainant’s email was to reiterate a number that had previously been provided and to point out Mr Law’s mistake in saying it had not been provided.

Although it is not clear whether he wanted to be contacted by Mr Laws, the complainant did not expressly or impliedly consent to the broadcast of his phone number. There was nothing in the language of this email to suggest that the complainant was giving his consent to Mr Laws broadcasting his name and mobile number on air.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 5

The ACMA does not consider it was reasonable to infer consent from the language of the email.

The licensee has also submitted that the broadcast of the complainant’s mobile telephone number was in the public interest, and that therefore its inclusion in the segment was permissible. The licensee submitted:

It is in [the licensee’s] view that the [aforementioned] email was that [the complainant] wanted the entire email he submitted (namely including the phone number) to be read out on-air. As we know Mr Laws eventually did this and in [the licensee’s] view this action could be construed as ‘in the public interest’ – particularly given the nature of the discussion between himself and [the complainant].

The use of material relating to a person’s personal or private affairs will not be in breach of clause 2.3(d) of the Code if there is a public interest in broadcasting such information. However, the ACMA is not persuaded by the licensee’s submissions on this matter.

The ACMA considers that any public interest must be clear and identifiable. Public interest issues are matters capable of affecting the community at large so that citizens might be legitimately interested or concerned about what is going on. They include, for example, issues concerning 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.6

Having regard to the examples identified above of what may constitute a public interest issue, the ACMA considers that there is no clearly identifiable public interest in this case that would justify reading out the complainant’s personal mobile number.

The licensee also argued that Mr Laws was ‘goaded’ into reading the number.

The ACMA does not accept that the email concerning Mr Laws’ treatment of a caller and his references to ‘cash for comment’ were relevant to, or justified, the disclosure of personal information.

The ACMA finds that the licensee breached clause 2.3(d) of the Code.

6 See London Artists v Littler (1969) 2 QB 375 at 391.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 6

Issue 2: Complaints handlingFindingThe ACMA finds that the licensee did not breach clause 5.5 of the Code.

Reasons As outlined above, the licensee has submitted that it had attempted to respond to the

complainant’s complaint by mail but that the envelope was returned to it marked ‘Not known at this address – Return to sender’.

The licensee has provided the ACMA with copies of both the complainant’s initial complaint and a photocopy of the returned envelope. The ACMA is satisfied that the address provided by the complainant is the same as that to which the licensee sent its response.

It is noted that pursuant to clause 5.5 of the Code, a licensee is required to ‘use its best endeavours’ to respond to complainants where Code issues have been raised.

In this instance, the ACMA is satisfied that the licensee has met this threshold. While the envelope was returned to the licensee and the licensee would therefore have been aware of the fact that the complainant had not received its response, the ACMA notes the following:

o The licensee sent a considered letter responding substantively to the issues raised by the complainant;

o The licensee sent its response within the required 30 days specified in clause 5.5; and

o The licensee sent its response to the postal address that had been provided to it by the complainant.

In all the circumstances, therefore, the ACMA is satisfied that the licensee complied with its obligations under clause 5.5. Accordingly, the ACMA finds that the licensee did not breach clause 5.5 of the Code.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 7

AttachmentLicensee submissionsThe licensee responded to the complainant as follows (relevantly):

By way of background to responding I provide the following in terms of how the issue you cite unfolded on the program on 215 November 2013:

At 6 min 22 sec past the hour of 11:00am Mr Laws read the ‘sanitised’ or initial email message he was provided by staff from you.

At 22 min 49 sec past the hour of 11:00am Mr Laws read the complete email message he received from you.

At 33 min 28 sec past the hour of 11:00am Mr Laws spoke to you by telephone.

In the final 15 minutes of the morning program Mr Laws took one call and read four emails that related to the discussion between himself and you earlier in the morning (as described above).

What follows are comments and my findings having regard to each of the Code I have referenced previously.

Comments against Code 2.3(d)

[...]

In response to this issue, as licensee, I note that in particular your complaint relates to the provision of your mobile phone number on-air, I also note that you allege you have received ‘lots of calls and messages, from strangers to myself’.

Firstly please accept my apology if this has in fact been the direct result of the telephone number being provided on-air.

Whilst there was some initial ‘confusion’ surrounding the contents of the email that you sent to the program I cannot condone the provision of the personal phone number on a second occasion later in the program.

As a matter of fact I note from the recording of the program that Mr Laws apologised for the confusion surrounding the original discussion of the email and what was presented to him by staff at the station. It is this confusion that, I believe, is core to the issue. If there was no confusion regarding what was presented to Mr Laws the matter would not, in my view, have escalated. I also appreciate there were a number of issues raised both in the email and during the course of your conversation with Mr Laws that raised sensitivities and resulted in a ‘less than pleasant’ telephone conversation.

In terms of the initial issue of the information received via email and that presented to Mr Laws you can be assured steps have been taken with the support staff to ensure this type of situation does not occur in the future.

I have discussed the matter of the incident with Mr Laws and am satisfied he is remorseful for the way the incident unfolded. You will recall Mr Laws stated that there was no breach of procedures in giving out telephone numbers if they had been provided to him (in this instance

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 8

by email). Whilst Mr Laws is partially correct as details can be provided in certain instances, personal details cannot be provided in the incidence concerning your email or call. In the main this is usually facilitated off-air and with the clear approval of the listener.

Mr Laws is now fully appreciative of the circumstances and the Code and has offered his apology given he has all of the facts.

Conclusion

In light of the above I wish to confirm that the necessary steps have now been taken to ensure the possibility of the situation similar to the one you encountered does not occur in the future.

These steps include the implementation of procedures to ensure email information is correctly vetted prior to being put to air but that the announcer is conversant with all the facts, and the provision of a clear understanding of Code 2.3(d) and related Codes to Mr Laws and other in-air personnel in the network.

I am satisfied that these steps address the issues that caused the situation to arise.

I stated I have spoken to Mr Laws about the incident and the obvious potential harm done by releasing details, he as I mentioned, has apologised sincerely. I also wish to add my apology for any embarrassment caused through the release of information.

The licensee subsequently submitted the following to the ACMA:

Clause 2.3(d) privacy:

In relation to this particular code it is important to recognise that the caller [complainant’s name], in our view, not only ‘goaded’ Mr Laws into reading the email he sent to the show in full but also gave the very strong impression that he wanted the email (see below) read in its entirety.

[The complainant’s] email (received by 2SM at 10:47am on 25 November 2013) – which is the subject of the initial conversation between himself and Mr Laws reads as follows:

[Other caller’s name] calls with a legitimate gripe that could well be a problem to many, she had valid points and could back them up?

Mr Arrogance could not wait to shove her along to flog your crappy HUD. Cash for comment alive and well hey...

[Complainant’s name]

[Complainant’s mobile phone number]

The only aspect of the email that was not read out by Mr Laws when addressing the email as part of his program on the day in question initially was the mobile phone number.

The process adopted by support staff at 2SM is to ‘sanitise’ email correspondence and remove contact details from the copy provided to Mr Laws prior to the email being read or referenced on air.

It was the omission of the phone number that caused the matter to escalate.

After a series of comments made by Mr Laws regarding the initial email, most importantly its reference to a previous caller and the process in place for dealing with emails prior to their

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 9

passing on to him (see above), the following aggressive and abusive email (received by 2SM at 11:11am on the same day) was received from [the complainant] to the program:

I had my number on the email!

I just double checked sent items, big tough talk you are, based on a mistake!

Pathetic to dwell on the absence of a surname, and (selective) blindness to not see my number!

[Complainant’s name]

[Complainant’s phone number]

It is in my view reasonable for Mr Laws to assume that the purpose of the latest email was that [the complainant] wanted the entire email he submitted (namely including the phone number) to be read out on-air. As we know Mr Laws eventually did this and in my view this action could be construed as ‘in the public interest’ – particularly given the nature of the discussion between himself and [the complainant]. The details were included as part of the email and the emailer (in this case [the complainant]) seemed insistent that the ‘full’ details of the email be read out.

At thirty three minutes past the hour of 11:00am (again on 25 November) Mr Laws had a discussion with [the complainant] on the talk-back line. [The complainant] is in my view extremely argumentative and Mr Laws responds to the antagonistic comments made by [the complainant] in an, at the time, appropriate manner.

During the course of the conversation it is worth noting that [the complainant] said, when discussing the mobile phone number ‘that he was “comfortable with it”’ – i.e. its release. After initially not releasing the number, Mr Laws had argued that the number had been provided without qualification and in the circumstances, given the nature of the discussion between the caller [the complainant] and Mr Laws the provision of the full initial email (including the phone number) was not inappropriate or in the circumstances a breach of privacy provisions – I stress in the circumstances.

I am unable to comment on the allegation regarding calls made to the home following the ‘release of the phone number’ – if in fact that claim forms part of the matter being investigated. I raise the point because the issue was however raised in the initial complaint to the station. The matter is at this point in time unsubstantiated and should be dealt with in that manner unless proof or evidence can be provided to show otherwise.

Any consideration of this matter must, in my view, be taken in the correct context. The context I refer to being the conversation between Mr Laws and [the complainant] and his insistence and focus on the phone number.

This issue being considered in isolation of the aforementioned ‘context’ places the matter in an entirely different light.

It must be recognised that I have recognised and stated to [the complainant] the following:

Whilst there was some initial ‘confusion’ surrounding the contents of the email that you sent to the program I cannot condone the provision of the personal phone number on a second occasion later in the program.

ACMA Investigation Report 3169—John Laws—2SM Sydney – 25 November 2013 10

Also as I mentioned in the response to [the complainant] I have discussed the matter of the incident with [Mr Laws] and am satisfied he is remorseful for the way the incident unfolded. Mr Laws is now fully appreciative of the circumstances and the Code and has offered his apology given he has all of the facts.

Further, in light of the above I wish to confirm that the necessary steps have now been taken to ensure the possibility of the situation similar to the one you encountered does not occur in the future.

These steps include the implementation of procedures to ensure email information is correctly vetted prior to being put to air but that the announcer is conversant with all the facts, and the provision of a clear understanding of Code 2.3(d) and related Codes to Mr Laws and other on-air personnel in the network.

In light of the above I have decided that all in all the complaint has been adequately addressed and steps taken to ensure situations such as those involving [the complainant] are dealt with in a more appropriate manner, regardless of the approach adopted by (what might be categorised as) a very aggressive caller.

Clause 5.5 complaint handling

The broadcast operations group is satisfied that the complaint that was made by [the complainant]... was dealt with (under the circumstances) according to the provisions provided in the Codes.

Before making specific comments it is more than useful to detail the sequence of events that have led to the commencement of the investigation by the ACMA.

Complaint was lodged on the complaints online system on 25 November 2013... It must be noted that [name] was one of the two names provided on the online form by the complainant. The other was, as mentioned, [different name]. Broadcast operations elected to send the response to [the complainant] as [original name] was considered, as the initial name provided, the complainant’s name.

The date the correspondence was sent to the address shown on the complaint form was well within the prescribed timeframe, as detailed in the Codes, for considering a complaint.

On 10 January the letter/response that was sent to [the complainant] was returned to the sender – broadcast operations. The correspondence was marked ‘not known at this address’ and actually date stamped 6 January 2014 by Australia Post. Please refer below for additional comments regarding provision of relevant copies to the ACMA.

On 30 January an email was received from a Mr [alternative name] stating (in part) that no response had been received to his complaint.

On 31 January, before action could be taken in relation to the aforementioned email, an email was received from the ACMA... advising that the ACMA had received a complaint from a Mr [original name] regarding the Laws’ program on 25 November. The ACMA sought a copy of the complaint.

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On 3 February broadcast operations advised the ACMA that the complaint had been dealt with within the prescribed timeframe and that the envelope/response had been returned. A copy of the complaint, the returned envelope and the response was duly provided to the ACMA.

On 13 February the ACMA sought permission to send the broadcast operations response to [the complainant] to an address the ACMA had obtained from [the complainant]. Broadcast operations gave permission to the ACMA to provide the relevant information.

14 February 2014 [sic] the ACMA advised broadcast operations that an investigation into the matter was being commenced.

As a consequence of all of the above detail the broadcast operations group are of the view that the complaint was handled in accordance with the provisions of the Codes.

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