BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Finding
Not “broadcasting” within the terms of the Broadcasting Act 1989 – no jurisdiction to consider complaint

This headnote does not form part of the decision.

Broadcasts

[1]   A One News item, which was broadcast on TV One on 15 May 2010, was subsequently available to be viewed on TVNZ’s website.

Complaint

[2]   Through his solicitor, James Johnson made a complaint about the One News item to Television New Zealand Ltd. He acknowledged that, as more than 20 working days had passed since the television broadcast of that item had occurred, he was unable to make a formal complaint about that broadcast. However, he argued, because the item was still available for viewing on TVNZ’s website his complaint was within the 20 working day timeframe.

Broadcaster’s Response to the Complainant

[3]   TVNZ said that material shown on the internet was not subject to the Broadcasting Act 1989, and therefore it declined to accept the complaint.

Referral to the Authority

[4]   Mr Johnson wrote to the Authority maintaining that the BSA did have jurisdiction to consider his complaint about the item on TVNZ’s website. He argued that there was a distinction between “On Demand” programmes and video clips that were available on the website without having to download them. In support of this argument he cited the Authority’s decision in Davies and TVNZ.¹

Broadcaster's Response to the Authority

[5]   TVNZ maintained that the website item was not “broadcasting” and therefore the Authority had no jurisdiction to consider it.

Relevant Section of the Broadcasting Act 1989

[6]   The definition of “broadcasting” is contained in section 2 of the Act. This states:

broadcasting means 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.

Authority's Finding

[7]   The key question in this matter is whether the video on TVNZ’s website amounts to “broadcasting” for the purposes of the Broadcasting Act 1989, and therefore whether that content is covered by the standards applied by this Authority.

[8]   We note that, currently, there are three ways in which video content can be viewed on the internet:

1. Video material that must be downloaded to the user’s computer before it can be viewed. Such material is downloaded in whatever order will allow the download to occur in the shortest possible time.

2. Video material that is “streamed”. Such video material can be played at the click of a button without the user having to first download the video to his/her computer for playback. The video is downloaded in small chunks, in sequence, as it plays.

3. Video material that is “live streamed”. Such video material does not allow a user to watch that content “on demand” at a time of their choosing. Such material plays continuously, independent of demand.

[9]   In Davies and TVNZ, the Authority found that video material described in point (1) above was not “broadcasting”. It said:

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.

…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.

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”.

[10]   Mr Johnson argued that the One News item, which falls within category (2) above, was “broadcasting” for the purposes of the Broadcasting Act. He seeks to draw a technical distinction between material which must first be downloaded onto a viewer’s computer before playing, and material which can be played directly from a website (streamed). However, in both cases, the data is not transmitted over the internet until the user requests it.

[11]   The key question for this Authority is whether the content is “transmission…made on the demand of a particular person for reception only by that person” (section 2 of the Broadcasting Act). We note that the news item which concerns Mr Johnson must still be “downloaded” by the user before it can be viewed. Although the item does not require a user to transfer the material to their own computer before viewing it, the data is still being “downloaded” and played in small chunks as it downloads. This content is not transmitted over the internet until the user requests it and, therefore, we consider that it is “on demand” content.

[12]   It is our view that this type of transmission falls outside the definition of “broadcasting” in the Broadcasting Act because it is “made on the demand of a particular person for reception only by that person”. We therefore find that we have no jurisdiction to accept a referral of Mr Johnson’s complaint.

For the above reasons the Authority declines jurisdiction over Mr Johnson’s complaint.

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.          Mr Johnson’s complaint to TVNZ – 26 August 2010

2.         TVNZ’s response to Mr Johnson – 30 August 2010

3.         Mr Johnson’s letter to the Authority – 31 August 2010

4.         TVNZ’s response to the Authority – 20 October 2010

¹Decision No. 2004-207