NH v Radio Virsa - [2022] NZHC 2412

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000372

[2022] NZHC 2412

UNDER the Broadcasting Act 1989

BETWEEN

NH

Appellant

AND

RADIO VIRSA

Respondent

Hearing:
Further Submissions:

10 November 2021

11 and 12 November 2021
18 and 21 February 2022 and
11 April 2022

Appearances:

W Akel and E A Keall for Appellant S J Price for Respondent

A E Scott-Howman for Broadcasting Standards Authority

Judgment:

20 September 2022

REDACTED JUDGMENT OF EATON J

This judgment was delivered by me on 20 September 2022 at pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NH v RADIO VIRSA [2022] NZHC 2412 [20 September 2022]

Introduction

[1] On 21 September 2020, an item on “Asliyat”, hosted by Mr Parambeer Singh, was broadcast by Radio Virsa (broadcast). The broadcast was in Punjabi. The host made a series of comments NH believed identified his son. NH made a complaint (complaint) to the Broadcasting Standards Authority (Authority) alleging the broadcast breached Standard 10 of the Radio Code (Code), which relates to privacy.

[2] On 29 June 2021, in a majority decision, the complaint was not upheld.1 NH appeals against that decision.

Background facts

[3] Radio Virsa is a small community radio station broadcasting in the Punjabi language. It was established in April 2013 from community donations and is run by volunteers. The station was founded by Sikhs to explore the teachings and philosophy of the Sikh religion and the extent to which those teachings are being subverted by modern practices.

[4] Since inception, the station has attracted some devoted opposition, predominantly from those who disagree with its teachings. There have been 12 complaints to the Authority against Radio Virsa. One was upheld and one upheld in part. The only penalty imposed was an order that the station broadcast a statement summarising the decision. All other complaints were dismissed (some due to jurisdictional issues).

[5] On 21 September 2020, the day of the broadcast, Radio Virsa’s audience was estimated to be 200 to 250 people, some of whom were based in the United States and India. The show engaged in a wide ranging discussion that included an edict against a Sikh leader in India; a criticism of the way some Sikh people are happy to benefit from modern technology but are still bound by outdated religious orthodoxy; a discussion of whether Sikhs should adhere to the Sikh Rehat Maryada (the Sikh code of conduct and conventions); the shamefulness of particular crimes committed by

1 NH v Radio Virsa BSA 2020-164, 29 June 2021 [The Decision].

some Sikh people; and, most relevantly, a discussion of the issues from a recent court case and petitions against those involved with Radio Virsa.

[6] The relevant portion of the broadcast appears about 40 minutes into the programme and lasts a little over a minute. The host is responding to what he perceives to be personal attacks that he is not a proper Sikh and seeks to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 2412
Decision Date: 20 September 2022

CaseChat Overview and Summary

In this case, NH appealed against a decision by the Broadcasting Standards Authority (BSA) which rejected a complaint that Radio Virsa breached Standard 10 of the Radio Code, which relates to privacy. The appellant alleged that Radio Virsa had broadcasted private information about his son, which was highly offensive. The BSA had found that the broadcast did not identify the appellant's son and therefore dismissed the complaint. The court had to decide whether the BSA's approach to the Privacy Standard was correct and whether the broadcast breached the privacy standard.

The court found that the BSA's approach to the Privacy Standard was correct, and that the broadcast did indeed breach the privacy standard. The court held that the identification criterion was applicable and that the majority was plainly wrong to find that the complainant's son was not identified in the broadcast. The court found that the broadcast disclosed information about which the complainant's son had a reasonable expectation of privacy, and that the disclosure was highly offensive to an objective reasonable person. The court allowed the appeal and found the privacy complaint to be justified, awarding compensation of $4,000. The court also made a final order suppressing the name of the complainant.

Orders