BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 5 (accuracy) – complaint frivolous, trivial and vexatious – decline to determine under section 11(a) of the Broadcasting Act

This headnote does not form part of the decision.

Broadcast

[1]   A brief news item, broadcast on Radio New Zealand National at 10am on Wednesday 19 May 2010, reported on a university study which claimed that there were flaws in the data on which the Government had based its recent ACC levy increase for motorcyclists.

[2]   The item included comment from a university professor who believed that the Government had used incorrect statistics relating to the percentage of road accidents in which motorcyclists were at fault when deciding the levy increase.

[3]   The presenter concluded the report by saying that the professor had said that “motorcyclists make up just two percent of ACC claimants, yet they pay more than any other non-commercial road user”.

Complaint

[4]   Donald McDonald made a formal complaint to Radio New Zealand Ltd, the broadcaster, alleging that the presenter’s comment that “motorcyclists make up just two percent of ACC claimants, yet they pay more than any other non-commercial road user”, was inaccurate.

[5]   The complainant argued that the remark was “deceptive” and contained an unfair equation. He said that the percentage of ACC claims referred to by the presenter related to “a population”, whereas the levy related to “an individual”. Mr McDonald contended that the item “should have been talking total levies versus claims for that motorcycle population”.

Standards

[6]   RNZ assessed the complaint under Standard 5 of the Radio Code of Broadcasting Practice. It provides:

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Broadcaster's Response to the Complainant

[7]   RNZ argued that the factual inaccuracy claimed by Mr McDonald was not material to the news item, and it therefore declined to uphold the Standard 5 complaint.

Referral to the Authority

[8]   Dissatisfied with RNZ’s response, Mr McDonald referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Findings

[9]   The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[10]   The accuracy standard only applies to “material points of fact”. In our view, Mr McDonald’s complaint does not raise any issues in relation to any material points of fact contained in the brief report. Furthermore, we consider that his complaint was dealt with adequately and appropriately by the broadcaster.

[11]   Section 11(a) of the Broadcasting Act 1989 allows the Authority to decline to determine a complaint which it considers to be frivolous, vexatious, or trivial. Pursuant to this section, we decline to determine this complaint on the grounds that the complaint by Mr McDonald was trivial and vexatious.

For the above reasons the Authority declines to determine the complaint.

[12]   We have noted in two recent decisions¹ regarding trivial complaints made by Mr McDonald that:

... over a number of years, Mr McDonald has repeatedly referred complaints about trivial accuracy points to the Authority, and he has recently been warned that an order for costs may be made against him if he continues to do so. We acknowledge that, at the time Mr McDonald lodged this complaint, he had not yet received our decisions on those previous complaints. However, we reiterate our warning that if we continue to receive complaints of a similar nature, we will consider an order for costs against Mr McDonald

[13]   We also note that this latest complaint by Mr McDonald was made after he had received our previous decisions warning him that we would consider an order of costs against him if he continued to make complaints of a similar nature.

[14]   Under section 16(2)(a) of the Broadcasting Act 1989, an order of costs against a complainant may be made when a complaint is found to be frivolous or vexatious or one that should not have been made.

[15]   We invited submissions from the parties on whether an order for costs against Mr McDonald is appropriate on this occasion.

[16]   RNZ submitted that an order for $500 in costs against Mr McDonald may be appropriate in the circumstances. However it said that, “While such an order may be appropriate, the end to be achieved in this particular case by way of such an order may be achieved by other means”. RNZ suggested delivering a “very clear warning to the complainant that any repetition of this behavior would result in such an order” and that it would be supported by RNZ and should be enforced by the Authority.

[17]   Mr McDonald maintained that he had made a legitimate complaint and that the item had been inaccurate. He considered that it would be unfair for the Authority to make an order of costs against him.

Authority’s Decision on Orders

[18]   As outlined above in paragraph [11] above, this referral is yet another example of Mr McDonald making a trivial and vexatious complaint about a point of accuracy that is not material to the news item broadcast.

[19]   Mr McDonald wishes to apply standards of scientific or mathematical accuracy where these are not required. We have allowed him some consideration in the past and with considerable reservations will do so again on this occasion. We will not impose a costs order against Mr McDonald in this instance, but we signal very clearly that this leniency is unlikely to be repeated.

[20]   Accordingly, we decline to make an order for costs on this occasion.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 November 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.           Donald McDonald’s formal complaint – 19 May 2010

2.          RNZ’s response to the formal complaint – 15 June 2010

3.          Mr McDonald’s referral to the Authority – 15 June 2010

4.          RNZ’s response to the Authority – 30 June 2010

5.          RNZ’s submissions on costs – 21 September 2010

6.          Mr McDonald’s submissions on costs – 13 and 21 October 2010

¹McDonald and TVNZ, Decision No. 2010-055 and McDonald and TVNZ, Decision No. 2010-033