BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Fair Go – downloadable episode of programme on TVNZ’s website – issue as to Authority’s jurisdiction to consider complaint

Findings
Not a broadcast within the terms of the Broadcasting Act 1989 – no jurisdiction to consider complaint

This headnote does not form part of the decision.

Background

[1] Fair Go, broadcast on TV One on 14 April 2004, featured a property development company of which Kevin Davies was a director.

[2] Mr Davies complained to Television New Zealand Ltd on 4 June 2004, alleging that the programme breached standards of balance, fairness and accuracy.

[3] TVNZ declined to accept his complaint, as it was lodged outside the 20 working-day period specified in section 6(2) of the Broadcasting Act 1989.

[4] On 17 November 2004, Mr Davies again complained to TVNZ, noting that the episode complained of could still be downloaded and viewed from TVNZ’s website. He accordingly requested that TVNZ reconsider his complaint.

[5] On 30 November 2004 TVNZ wrote to Mr Davies, informing him that it was unable to accept his complaint. TVNZ advised that it did not consider that the episode, downloadable from its website, came under the definition of “broadcasting” in the Broadcasting Act.

[6] Mr Davies disagreed with this decision and referred the matter to the Authority for consideration.

Statutory Definitions

[7] Section 6(1)(a) of the Broadcasting Act 1989 provides that broadcasters must:

receive and consider formal complaints about any programme broadcast by it… (emphasis added)

[8] “Broadcasting” is defined in the Act to mean:

… any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus but does not include any such transmission of programmes—

a) Made on the demand of a particular person for reception only by that person; or

b) Made solely for performance or display in a public place

[9] Accordingly, the key issue for the Authority to determine is whether a programme available to download from TVNZ’s website, comes within the definition of “broadcast” for the purposes of the Broadcasting Act. If it does, then subject to a number of other jurisdictional criteria in the Act, it may be that the Authority has jurisdiction to either consider the complaint itself, or to refer the matter back to TVNZ with a request that it reconsider the matter.

[10] If the content does not come within the statutory definition of broadcasting, the Authority has no jurisdiction to consider the complaint.

Nature of Downloadable Content

[11] Downloadable content from a website differs from much other internet content in one important respect – it is viewable only once the user has specifically chosen to download and view it, usually through clicking on an icon on the relevant webpage. The material is not continually being shown on the website, regardless of whether users choose to view it, in the same manner that television stations broadcast irrespective of whether the audience chooses to watch. Downloadable video will not play unless specifically sought by the viewer.

Authority’s Determination

[12] By clicking on the relevant icon and downloading information from a website, the Authority considers that a viewer is “requesting” that the information be uploaded onto their computer. The information is not able to be viewed unless requested. Once downloaded, the information is in the viewer’s possession, and accordingly is for viewing only by that person.

[13] In the Authority’s opinion, accessing information in this way amounts to “on-demand” transmission of a programme, for reception only by that person. As such, it falls directly within the exclusion contained in paragraph (a) of the definition of “broadcasting”.

[14] The Authority observes that downloading information in this manner is analogous to renting a video tape, or purchasing a tape from a broadcaster.

[15] As it considers that downloadable video does not come within the definition of “broadcasting”, the Authority finds that TVNZ was not obliged to consider Mr Davies’ complaint of 17 November 2004, and that the Authority has no jurisdiction to consider the matter.

For the above reasons the Authority determines that it has no jurisdiction to consider the complaint

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 March 2005

Appendix

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

1. Kevin Davies’ Formal Complaint to Television New Zealand Ltd – 17 November 2004
2. TVNZ’s response to Formal Complaint – 30 November 2004
3. Kevin Davies’ Referral to the Authority – 24 November 2004