BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
Campbell Live – item reported on bullying at Massey High School – question of whether Authority has jurisdiction to accept a referral of the privacy aspect of the complaint

Findings
Massey High School did not refer its complaint to the Authority within the statutory timeframe – original complaint did not constitute a direct privacy referral – Authority does not have jurisdiction to accept the complaint

This headnote does not form part of the decision. 

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Introduction

[1]  An item on Campbell Live, broadcast on TV3 at 7pm on 15 November 2011, reported on bullying at Massey High School (Massey).

[2]  Massey made a formal complaint dated 29 November 2011, alleging that the item breached standards relating to privacy, accuracy and fairness. That complaint was addressed to the Chair of this Authority and a copy was also sent to the Chief Executive at TV3.

[3]  TVWorks Ltd, the broadcaster, responded to the complaint with a decision dated 1 February 2012. Massey did not refer the complaint to this Authority within the 20 working day statutory timeframe allowed under section 9 of the Broadcasting Act 1989.

[4]  Massey requested that its complaint now be considered by this Authority. Massey accepts that it is out of time to refer its complaint in relation to the “non-privacy aspects”. It has argued that the Authority should accept the privacy aspect of its original complaint on the basis that its letter sent to us in November could be considered a “direct privacy referral” lodged in accordance with section 8(1A) of the Broadcasting Act 1989.

[5]  The issue, therefore, is whether the Authority has jurisdiction to accept Massey’s complaint of 29 November as a direct privacy referral.

[6]  The members of the Authority have read the correspondence listed in the Appendix.

The relevant sections of the Broadcasting Act 1989

[7]  Section 8 of the Act deals with the right of the complainant to refer a matter to the Authority. In cases of privacy, a complainant may refer a complaint directly to the Authority, while all other complaints must first be lodged with the broadcaster. Sections 8(1A) and 8(1B)(b)(i) state:       

8 Right of complainant to refer formal complaint to Authority

            ...

(1A) A complainant may refer the complaint directly to the Authority if-

(a)  the complaint is that a broadcaster failed to comply with section 4(1)(c) [a breach of privacy]; and

(b)  the complainant chooses to refer the complaint directly to the Authority.

(1B) A complainant may refer the complaint to the Authority if the complainant-

(a)  made the complaint under section 6(1)(a) [a formal complaint to the broadcaster]; and

(b)  is dissatisfied with-

                       (i)   the decision of the broadcaster; or

                       (ii)   the action taken by the broadcaster.

[8]  Section 9 deals with the time limits in which a complainant can lodge these referrals:

9 Time limits

(1)  The Authority must not accept a complaint made outside the period specified for the complaint in this section. ...

(3)  A complaint under section 8(1A) must be made to the Authority in the period-

(a)  starting on the first working day after the broadcast of the programme that the complaint is about; and

(b)  ending 20 working days later.

(4)  A complaint under section 8(1B) must be made to the Authority in the period-

(a)  starting on the first working day after the day on which the complainant received notice of the broadcaster’s decision or action on the complaint; and

(b)  ending 20 working days later.

The relevant complaint correspondence

[9]  Massey’s original formal complaint was sent, on the advice of the Authority’s staff, as one complaint encompassing all of the standards nominated (see paragraph [2]). It was sent to both the Authority and the broadcaster. The introduction to the complaint stated:

The school considers that the programme breached the following standards of the Code of Broadcasting Practice:

(a)  Standard 3 (privacy)

(b)  Standard 5 (accuracy)

(c)  Standard 6 (fairness)

The specific complaints are outlined below.

As this complaint incorporates issues of privacy it has been sent to both the broadcaster and to the BSA at the same time.

[10]  The Authority received the complaint on 1 December 2011, and responded as follows, on the basis of its earlier advice to the complainant to direct its entire complaint to the broadcaster in the first instance:

Thank you for the formal complaint about an item on Campbell Live broadcast on TV3 on 15 November 2011.

Under the Broadcasting Act 1989, broadcasting standards complaints must be dealt with by the broadcaster before they can be referred to the BSA.

I note you have already written to TVWorks who will respond to you directly.

The broadcaster has 20 working days in which to investigate a formal complaint and reply to you. If you are not satisfied with the outcome of the broadcaster's decision, you are entitled to refer your complaint to the BSA within 20 working days of receiving it. Also, if you have not received a response from the broadcaster within 20 working days of lodging your complaint, you can refer your complaint to the BSA within 60 working days of the original broadcast. [our emphasis]

[11]  TVWorks responded to Massey’s complaint by email on 1 February. Its response included the following paragraph:

Right to Refer to Broadcasting Standards Authority and Time Limit

In accordance with Section 7(3) of the Broadcasting Act 1989 you are notified that it is your right, should you be dissatisfied with this decision, to refer this matter, under section 8 of the Act, to the Broadcasting Standards Authority (PO Box 9213, Wellington) for the purpose of an investigation and review of this decision. You have 20 working days after receipt of this letter to exercise this right of referral.

[12]  The 20 working day timeframe for referring the complaint to this Authority expired on 1 March 2012. Nothing further was heard from Massey until a phone call on 7 March, followed by a written request for the Authority to accept the complaint, which was sent on 12 March.

Does the Authority have jurisdiction to accept Massey’s complaint as a direct privacy referral?

[13]  The Authority considered a similar situation in the case of Bennett and TVWorks Ltd, in which a complaint had not been referred to the Authority in the ordinary way, within the required timeframe.¹ On appeal to the High Court, Justice Simon France held that the Authority did not have jurisdiction to accept the complaint. Justice France made the following comments in his judgment:²

The hiccup, as it were, has arisen because the broadcaster’s decision was not referred within twenty working days. Unfortunately the Act’s time limits are absolute; whether it is anyone’s fault or not, they cannot be extended. Twenty working days is all there is, and to miss it is to end the process.

That is what has happened here, but I cannot see any good reason why one should attempt to divide this sequence of events up and find a completed process at some earlier point. It is to ignore the reality that there was a formal complaint and there was a formal decision in relation to the complaint...

Looking at the process as a whole, in my view it is not possible to suggest that the broadcaster’s decision which triggered the twenty working days rule was anything other than the decision described at step five. That being so, the failure to refer it to the Authority within time is fatal, and the Authority has no jurisdiction.

[14]  In our view, the reasoning of France J applies equally in the present case. Massey did not make it clear in its letter of 29 November that it intended to lodge a direct privacy complaint with the Authority, and to have that section of its complaint extracted and dealt with separately, while the broadcaster addressed the remaining standards. Nor did it lodge any objection when it was advised by letter from this Authority on 1 December that the complaint would first be dealt with by the broadcaster, and following that Massey would be entitled to refer its complaint to the Authority.

[15]  In support of our view that Massey did not intend its letter to be treated as a direct privacy complaint, we note that Massey has accepted that it was out of time to refer the other aspects of its complaint to this Authority. This suggests to us that it was in error that the complaint was not referred, yet Massey is now arguing, on the grounds of a technicality, that it intended its original letter to be accepted as a direct privacy referral.  

[16]  Massey was not in any way disadvantaged by the path down which its complaint progressed. Indeed, it was the path that all complaints, other than complaints solely about privacy, take. This matter has only arisen because Massey failed to refer its complaint to the Authority within the prescribed 20 working day timeframe.

[17]  Section 9(1) of the Act states that the Authority must not accept a complaint made outside the period specified. Accordingly, we find that we do not have jurisdiction to accept and consider Massey’s complaint.

[18]  As an aside, we note that we have determined two additional complaints about the broadcast of Campbell Live on 15 November 2011, and made a finding that the programme did not breach Standard 3 (privacy) of the Free-to-Air Television Code of Broadcasting Practice.³

For the above reasons the Authority finds that it does not have jurisdiction to accept the privacy complaint by Massey High School about the broadcast of Campbell Live on 15 November 2011.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                  Massey High School’s formal complaint – 29 November 2011

2                 The Authority’s response to the complaint – 1 December 2011

3                 TVWorks’ decision on the complaint – 1 February 2012

4                 Massey’s referral to the Authority – 12 March 2012

5                 TVWorks’ submissions on whether the Authority should accept the complaint – 2 April 2012

6                 Massey’s submissions on whether the Authority should accept the complaint – 3 April 2012

¹Decision No. ID2010-106

²TVWorks v Bennett PDF106.39 KB, CIV-2010-485-2161 at paragraphs [11] to [13]

³Goddard and Skelton and TVWorks Ltd, Decision No. 2012-011