BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
“Breaking News” caption – “breaking news ticker” broadcast during advertisement break stated, “Breaking News... Container ship breaks apart... Tugs racing to the scene... More on One News at 4.30, 6pm and at tvnz.co.nz” – information inaccurate – question whether the breaking news ticker was a “programme” for the purposes of the Broadcasting Act 1989 and therefore whether the Authority has jurisdiction to accept the complaint   

Findings
“Breaking news ticker” consisted predominantly of alphanumeric text and therefore excluded from the definition of “programme” – Authority does not have jurisdiction to accept the complaint

This headnote does not form part of the decision. 

Introduction

[1]  At approximately 10pm on TV One on 25 October 2011, a “breaking news ticker” was broadcast during an advertisement break which stated, “Breaking News... Container ship breaks apart... Tugs racing to the scene... More on One News at 4.30, 6pm and at tvnz.co.nz”. The ticker evidently was interpreted by viewers to be breaking news in relation to the container ship the Rena, which had run aground in the Bay of Plenty.

[2]  The following evening during the 6pm news, the presenter explained to viewers how the ticker had been broadcast, and apologised for the error, saying:

At 10 o’clock last night TV One inadvertently published a breaking news ticker reporting the break-up of a container ship. The ticker had been written as part of a training exercise for our producers. It was put to air as a result of human error in our transmission area. We put systems in place so that it won’t happen again. We’re sincerely sorry for the error and alarm it caused, particularly to residents in the Bay of Plenty.

[3]  Andrew Wylie made a formal complaint to Television New Zealand Ltd, alleging that the “breaking news ticker” was inaccurate, in breach of Standard 5 (accuracy) of the Free-to-Air Television Code of Broadcasting Practice, because the container ship it was referring to (the Rena) had not split into two.

[4]  TVNZ declined to determine the complaint on the grounds that the ticker was not a “programme” to which the Broadcasting Act 1989 (the Act) applied. Mr Wylie then referred the matter to this Authority.

[5]  The issue is whether the “breaking news ticker” fits within the definition of a “programme” in section 2 of the Act, and therefore whether the Authority has jurisdiction to accept and consider Mr Wylie’s complaint.

[6]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Relevant sections of the Act

[7]  Section 6 of the Act requires broadcasters:

(a)  to receive and consider formal complaints about any programme [our emphasis] broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4...

[8]  Section 2 defines “programme” as follows:

(a)  means sounds or visual images, or a combination of sounds and visual images, intended –

(i)   to inform, enlighten, or entertain; or

(ii)  to promote the interests of any person; or

(iii)  to promote any product or service; but

(b)  does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text [our emphasis].

Was the “breaking news ticker” a “programme” about which a complaint could be made?

[9]  TVNZ argued that the “breaking news ticker” was “not considered a programme under the Act as it consists solely of alphanumeric text”; no footage or audio was included. Therefore it could not be considered in the formal complaints process, it said. In response to a request for further submissions, TVNZ contended that:

…the natural and ordinary meaning of the alphanumeric exclusion is clear, and cannot be ignored by placing a strained or artificial interpretation on the words. The ordinary meaning of the words is entirely consistent with the purpose of the Act, which is to provide for the maintenance of programme standards in broadcasting, as defined under the Act.

[10]  TVNZ went on to say:

We accept that this could lead to a situation where seriously objectionable messages could be broadcast. However, history shows that the risk is theoretical and not real. Extreme or theoretical possibilities do not inform the interpretation of the statute, when the natural and ordinary meaning is clear and entirely consistent with the purpose of the Act. 

[11]  Mr Wylie argued that “anything transmitted by a licensed public broadcaster is a programme”, that the ticker was “an advanced form of a ‘news programme’”, that it contained “serious false information” and that it required an immediate correction. He considered that “anyone viewing this particular alphanumeric text could relate it to a news programme story of the day”, and therefore that it was “an extension of a news programme”.

[12]  Given the clarity of the wording of the provision, we see no option but to adopt a literal interpretation and find that the content of this broadcast fits squarely within the exclusion from the definition of “programme” in (b), for “alphanumeric text”. We therefore find that the breaking news ticker was not a “programme” about which Mr Wylie could make a valid formal complaint. Accordingly, we do not now have jurisdiction to accept and consider Mr Wylie’s referral.

[13]  In any event, we note that TVNZ did take steps to correct any misleading impression created by the ticker, by broadcasting a correction the following day, in which it acknowledged and explained the error, and apologised. TVNZ maintains that the necessary procedural changes have been implemented to ensure a similar incident does not occur again in future.

Final Comments

[14]  We do have some concern that this finding reflects a gap in the legislation, and that it is possible that similar broadcasts which, for example, contained serious or alarming inaccuracies, or expletives, would be unrestricted. This seems contrary to the objectives of the Act. We note that until now, no complaint has come before this Authority which has directly raised this issue. We would expect broadcasters to continue to act responsibly, notwithstanding this apparent gap in the legislation. We intend to draw this situation to the attention of the Minister of Broadcasting.

For the above reasons the Authority declines jurisdiction to accept the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
17 July 2012