5 July 2008

Rights to dignity and privacy - recent decisions of the Broadcasting Complaints Commission

A common cause of complaint to the Broadcasting Complaints Commission of South Africa ("BCCSA") is an alleged infringement of rights of dignity and privacy. Clause 38 of the BCCSA's Code of Conduct ("Code") aims to protect a complainant's right to dignity and privacy by providing that 

"Insofar as both news and comment are concerned, broadcasting licensees shall exercise exceptional care and consideration in matters involving the dignity or private lives and private concerns of individuals, bearing in mind that the rights to dignity and privacy may be overridden by a legitimate public interest".

The BCCSA has, in two recent cases, considered complaints of a violation of dignity and privacy. The BCCSA examined both matters having regard to clause 38 of the Code and made findings which detail important factors.

In the first matter, Mr. S contended that the broadcasting of a comedy skit by DJ Fresh on 5FM was crass, insensitive and infringed upon his dignity by, inter alia, making a mockery of people living with HIV. The comedian featured in the comedy skit made various remarks about 'Magic' Johnson the basketball player who after disclosing his positive HIV status retired and then later returned to playing basketball. The comedian stated that "HIV seems to make you real indecisive", a comment which DJ Fresh and the other DJ's on the show reportedly laughed at. The complainant, without making reference to his personal HIV status, contended that he was insulted by the broadcast as it implied that all persons suffering from HIV became indecisive or lost their minds.

The BCCSA reiterated that the test for determining whether clause 38 has been contravened is not an assessment of whether a particular individual was offended by the comments made but rather an objective test having regard to the standard of a reasonable listener or viewer who is "broadminded, balanced and not overly sensitive". On applying the test the BCCSA found that the comments made related specifically to Magic Johnson and were not intended to include or make a joke of all persons living with HIV. In addition, the BCCSA found that a complaint premised on a perceived infringement of "people's right to dignity generally" is insufficient. The complainant, in failing to show how his dignity was impaired by the comedy skit, was unable to succeed.

In the second matter, a DJ on East Coast Radio was accused of disregarding the complainant's right to privacy.

East Coast Radio received an e-mail, alleging that the complainant had been seen driving in an "errant, discourteous, reckless and negligent" manner. A few days later, the DJ broadcast the content of the e-mail, and similar complaints received by the radio station, as though they were factually correct, describing the complainant's vehicle and the particulars of her personalised number plate. The complaint was that the DJ was: "reckless, biased, unjust, personal, and derogatory and that he created an unjust and untoward defamatory perception" of the complainant. The DJ had failed to contact the complainant to verify or refute the allegations.

The radio station argued that there was no element of personal attack on the complainant but rather that the e-mail was used merely as a discussion point to highlight the effects of road rage and to provide advice to drivers caught in peak hour traffic.

The BCCSA pointed out that the there is a proviso in clause 38 of the Code which requires consideration to be given to whether there is a legitimate public interest which countermands the right to privacy. The BCCSA therefore evaluated both parties' arguments weighing up the alleged infringement of privacy against the public's interest in being advised of the potentially harmful conduct of certain motorists.

The BCCSA found that the DJ in question had gone too far in identifying and singling out the complainant, over and above what was required in the public interest, and that the DJ had thus encroached upon the complainant's right to privacy.

Michelle Saayman, Senior Associate, Regulatory Practice, Cliffe Dekker Hofmeyr Inc

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