BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Interlocutory matter concerning whether formal complaint was lodged in writing with the broadcaster within the prescribed statutory timeframe

Fair Go – formal complaint lodged by email shortly before midnight on 20^th working day after the broadcast – broadcaster declined to accept the complaint on the basis it was out of time – question whether formal complaint was lodged within 20 working days as required by the Broadcasting Act 1989

Findings
Definition of “working day” in section 2 of the Act specifies the days which are not to be counted as “working days” but does not specify times of the day – in the absence of explicit indication of times, ordinary meaning should be adopted – a “day” runs from midnight to midnight – complaint was lodged before midnight on 20^th working day and therefore should have been accepted by the broadcaster, even though the email was not read until the following day

Order
Section 13(1)(c) – order directing complaint back to the broadcaster to be accepted and considered as a formal complaint

This headnote does not form part of the decision.

Introduction

[1]  Two items featuring the complainant, Owen Gough, were broadcast during Fair Go on TV One on 23 and 30 May 2012.

[2]  Mr Gough submitted two formal complaints about the broadcasts to Television New Zealand Ltd, the broadcaster, via its online complaint form on 20 and 28 June respectively. Under the Broadcasting Act 1989 (the Act), formal complaints must be lodged in writing with the broadcaster within 20 working days after the programme screened. TVNZ declined to accept the second complaint on the basis it was out of time; Mr Gough submitted his online complaint before midnight on the 20^th working day after the broadcast, but the email was not read by TVNZ until 29 June, which was the 21^st working day.

[3]  The issue is whether, in terms of the Act and the definition of “working day”, Mr Gough’s email complaint was lodged within the required timeframe, and therefore should have been accepted and considered by the broadcaster.

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

Relevant sections of the Act

[5]  Section 6 of the Act deals with broadcasters’ duty to receive and consider formal complaints. It states:

Formal complaints about programmes

(1)  Subject to subsection (2) of this section, it is the duty of every broadcaster–

(a)  to receive and consider formal complaints about any programme broadcast by it
      where the complaint constitutes, in respect of that programme, an allegation that
      the broadcaster has failed to comply with section 4 of the Act [which relates to
      broadcasting standards]…

[6]  Subsection (2) of that section states:

Nothing in this section requires a broadcaster to receive and consider any complaint that is not lodged in writing with the broadcaster within 20 working days after the date on which the programme to which the complaint relates was broadcast by the broadcaster.

[7]  “Working day” is defined in section 2 of the Act as follows:

Working day means any day of the week other than–

   (a)  Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s
         birthday, and Waitangi day; and

   (b)  a day in the period commencing with the 25^th day of December in any year and ending with
         the 15^th day of January in the following year.

[8]  Some general principles for dealing with complaints are outlined in section 5 of the Act, including that “The first consideration of a complaint should be prompt and without undue formality.”

Submissions from the parties

[9]  The Authority invited the parties to make submissions on whether or not the complaint should have been accepted by TVNZ.

[10]  Mr Gough noted that the Act does not define “working day” by reference to “working hours” such as 9am to 5pm. He said that if that was the case, one would expect all complaint forms and information about the complaints process to explicitly state that complaints must be submitted during those hours. Further, TVNZ’s online complaint system would only operate during those hours, he said. Mr Gough also pointed to section 11 of the Electronic Transactions Act, which states:

            11 Time of receipt

            An electronic communication is taken to be received–

(a)  in the case of an addressee who has designated an information system for the
      purpose of receiving electronic communications, at the time the electronic
      communication enters that information system; or

(b)  in any other case, at the time the electronic communication comes to the
      attention of the addressee.

[11]  Mr Gough concluded that TVNZ had designated a system for the purpose of receiving electronic communications (i.e. its online complaint form) and therefore had received his complaint within the 20-working-day timeframe when he emailed it.

[12]  TVNZ argued that the Act was written in a time before the internet when it was not possible for formal complaints to be received after office hours, and that the timeframes were written to reflect this environment. It considered that if Mr Gough’s referral was a posted letter, the Authority would not have accepted it. TVNZ pointed the Authority to a previous decision where it was held that a letter posted within the 20-working-day timeframe, but which had not yet arrived in the post, was not received by the Authority within the prescribed timeframe.¹ It was also of the view that the acceptance of an email up until midnight when a posted letter would not be accepted was inherently unfair to complainants who did not have access to the internet.

[13]  TVNZ submitted that an interpretation of “working days” which allows complaints to be lodged up until midnight (when the TVNZ complaints office was not open to receive them) would mean that the timeframe for a broadcaster to respond to a complaint was effectively reduced by one working day. It maintained that this was not the intention of the Act when it was written and was not how broadcasters operate in practice.

Was Mr Gough’s complaint lodged in writing with the broadcaster within 20 working days of the broadcast?

[14]  As noted above, Mr Gough submitted his formal complaint via TVNZ’s online complaint form before midnight on the 20^th working day after the 30 May broadcast (that is, Thursday 28 June, excluding Queen’s Birthday). At 11.26pm the same day he received an automated email reply from TVNZ which said, “Your formal complaint has been successfully received.”

[15]  We have consulted the Interpretation Act 1999. Its definition of “working day” is identical to that in our Act. That definition refers to particular days that are to be excluded, but not to particular times on days which count as working days. It does not separately define “day”. We think that the ordinary meaning should be applied where it is not displaced by statute. The ordinary meaning of a “day” is midnight to midnight.

[16]  While we accept that the Act may not have contemplated complaints sent by email, emailing is now commonplace rather than an exception, and complainants are entitled to utilise the additional time email allows, as an alternative to paper mail and postage time. Indeed, broadcasters regularly take advantage of this extension and email decisions to complainants rather than posting them, meaning they can be sent on the last day of the prescribed timeframe.

[17]  We acknowledge that the High Court Rules relating to the service of documents by electronic communication methods state that, “When a document is transmitted electronically on a day that is not a working day, or after 5pm on a working day, it must be treated as served on the first subsequent working day.”²

[18]  Nevertheless, we are not a High Court dealing with court documents, and in most instances complainants will be lodging their complaints without assistance from legal counsel. Lay people cannot be expected to adhere to such strict criteria as are applied in the court system. This complaints process is designed to be straightforward and accessible to the public, and the Act recognises that complaints in the first instance should be treated without undue formality.

[19]  For these reasons, we find that Mr Gough’s complaint was “lodged in writing with the broadcaster within 20 working days” of the 30 May broadcast of Fair Go and that TVNZ should therefore have accepted his complaint.

For the above reasons the Authority finds that the complaint was lodged in writing with the broadcaster within 20 working days of the broadcast, and was therefore a valid formal complaint that should have been accepted by the broadcaster.

Order

Pursuant to section 13(1)(c) of the Broadcasting Act 1989, the Authority orders that the complaint be directed back to Television New Zealand Ltd, to be accepted and considered by it as a valid formal complaint, in accordance with usual procedure.

The 20-working-day timeframe in which the broadcaster is required to notify the complainant of its decision on the complaint will begin the day after the broadcaster receives this decision.

Signed for and on behalf of the Authority

Peter Radich
Chair
21 August 2012