BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court:
CIV 2010-485-2161  PDF106.39 KB

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Member Tapu Misa declared a conflict of interest and did not participate in the Authority's determination of this interlocutary matter.

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Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News

– item about meeting between Minister of Social Development and woman whose benefit details had been publicly released by the Minister – question of whether Authority has jurisdiction to accept a referral of the complaint

Ruling
29 April news item – majority decision – Authority has jurisdiction to accept the referral

30 April news item – Authority does not have jurisdiction to accept the referral

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1]   An item on 3 News, broadcast on 29 April 2010 at 6pm on TV3, discussed a meeting said to have taken place between the Minister of Social Development and Employment, Hon Paula Bennett, and a woman whose benefit details had been publicly released by the Minister. The woman had made a complaint to the Privacy Commissioner about the release of her details. The item alleged that at a meeting between the Minister and the woman, a monetary settlement was discussed and the idea of the woman dropping the complaint was floated.

[2]   The Minister, the following day, on 30 April 2010 wrote to the Director of News and Current Affairs at TV3. The Minister expressed considerable concern about the broadcast. She considered that it was malicious, without merit, defamatory and potentially in breach of the Broadcasting Act. The Minister referred to the sections she felt may have been breached. These sections relate to fairness, accuracy and balance. Without prejudice to her other options, the Minister sought an apology.

[3]   On the evening of 30 April 2010 the Director of NCA replied to the Minister's adviser. The effect of the reply was to reject the validity of the Minister's complaints. He stated in conclusion:

I thought that tonight’s story was very clear and fair to all the parties involved.

However if the Minister remains unhappy I am happy to talk to her or indeed have further dialogue with either of you.

[4]   On 4 May 2010, Ms Bennett’s adviser telephoned the office of the Authority and requested advice on how the ongoing process with this Authority should be progressed given that the response from the Director of NCA had not satisfied the Minister's concerns. This Authority's Legal Manager asked that the correspondence be referred to her for assessment. The Legal Manager wrote by email to Ms Bennett’s adviser to the effect that the Minister's complaint had not been dealt with as a formal complaint and that it was recommended that the complaint be sent to the Standards Committee of TV3 making it clear that a formal decision was expected. The advice concluded:

Once your complaint has been handled in this way, you will then be able to refer the complaint to the BSA.

[5]   The Minister, by letter dated 4 May 2010 but sent on 10 May 2010, wrote again to the Director of NCA. This letter was a restatement of the Minister's previous complaint and in it she also referred to what she considered to be a further unsatisfactory broadcast on 30 April 2010. Her letter was headed:

FORMAL COMPLAINT

TV3 News bulletins 29 and 30 April

[6]   The Standards Committee of TV3 duly considered that complaint and issued its decision on 10 June 2010 in relation to both the 29 and 30 April broadcasts. The conclusion was that no breach of relevant broadcasting standards had been identified in either item and the complaint was therefore not upheld. In accordance with usual practice and as required by the Act, the decision of the Standards Committee referred the complainant to her right to refer her complaint to this Authority. She was advised of the time limit of 20 working days after the receipt of the decision in which to do so.

[7]   On 13 July 2010, the Minister’s adviser telephoned this Authority to check to see what progress this Authority was making with the Minister's complaint. She was advised by the Legal Manager that, as the Minister had not referred her complaint to this Authority within the specified time, the Minister's complaint could not be considered by this Authority. Later that day the Minister’s adviser wrote by email to this Authority declining to accept that the Authority ought not to consider the complaint and referring to the previous history.

[8]   On 14 July 2010, the Legal Manager responded to the Minister’s adviser. In summary it was said that while the Minister's complaint of 30 April 2010 was a formal complaint, the response of the Director of NCA was not a decision. It was further said that the decision of the broadcaster was not made until 10 June 2010 and that the Minister, having not within 20 working days thereafter, referred the complaint to this Authority, it could not be accepted by the Authority. It is common ground that this Authority has no discretion to accept referrals out of time.

[9]   The Minister wrote to this Authority on 28 July 2010 reasserting her position in some detail that her complaint had been properly referred to this Authority. She requested this Authority to advise her of what it proposed to do in relation to her complaint.

[10]   The broadcaster was advised of the Minister’s position by this Authority. In response the broadcaster took the position that the substance of the complaint of the Minister was not able to be dealt with by us on account of absence of jurisdiction.

[11]   The broadcaster based its position on its view that the response from the Director of NCA was an informal response, and that the Standards Committee’s decision on the complainant’s 4 May letter was the broadcaster’s formal response. The broadcaster noted that the Standards Committee’s decision “contained a clear notification of what the complainant could do if she was unhappy with the broadcaster's formal response”. The broadcaster maintained that Ms Bennett’s complaint was referred to the Authority outside the 20 working day timeframe allowed in the Broadcasting Act 1989, and therefore the Authority should not accept the complaint.

[12]   Subsequently the broadcaster was asked by this Authority to clarify its position on whether Ms Bennett’s first letter dated 30 April 2010 was a formal complaint. The broadcaster advised this Authority that its position was that Ms Bennett’s first letter was an informal complaint.

[13]   In response to this, Ms Bennett’s adviser informed this Authority that the complainant stood by her position that the letter of 30 April 2010 was a formal complaint.

Relevant sections of the Broadcasting Act 1989

[14]   The following sections of the Broadcasting Act 1989 are relevant to the determination of this matter:

Principles

This Part is based on the following principles:

...

(h) the first consideration of a complaint should be prompt and without undue formality:

(i) further consideration of a complaint calls for greater formality.

Formal complaints about programmes

(1)   Subject to subsection (2), 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; …

7 Decisions in respect of formal complaints

(1) If a complaint under section 6(1)(a) is found to be justified, in whole or in part, the broadcaster shall take appropriate action and shall notify the complainant in writing of the action taken.

(2) If a complaint under section 6(1)(a) is found not to be justified, in whole or in part, the broadcaster shall notify the complainant in writing of the decision.

(3)  The broadcaster shall, in notifying a complainant pursuant to subsection (1) or subsection (2), give to the complainant information concerning the complainant’s right, by way of referral to the Authority under section 8, to seek an investigation and review of the broadcaster's action or decision, as the case may be.

8 Right of complainant to refer formal complaint to Authority

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

(a) made the complaint under section 6(1)(a); and

(b) is dissatisfied with—

(i) the decision of the broadcaster; or

(ii) the action taken by the broadcaster.

9 Time limits

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

...

(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.

[15]   This is an interlocutory decision on a question of jurisdiction. Because of the importance of the written communications we will annex those that are relevant to this decision.¹

Authority’s Ruling (By Majority (Peter Radich and Mary Anne Shanahan))

Complaint about 29 April 3 News Item

Statutory Background

[16]   The Broadcasting Act 1989 provides structures and arrangements for the maintenance of programme standards in broadcasting in New Zealand. As part of the structure, this Authority was established to receive and determine complaints from persons who are dissatisfied with the outcome of complaints made to broadcasters. The process of complaints involves two stages:

• A first stage when the complaint must be addressed to the broadcaster.
• A second stage, where the complainant is dissatisfied with the decision of the broadcaster or the action which the broadcaster takes and where the complaint is able to be referred to this Authority by the complainant.

In Section 5 of the Act where principles are expressed, it is said that the first consideration of a complaint..............should be prompt and without undue formality. It is also expressed in Section 5 as a principle that ...........formal complaints must be made in writing.

[17]   Section 6 of the Act is headed Formal complaints about programmes. Sub-section 6 (1) provides –

Subject to Sub-section (2) [which relates to time limits and complaints having to be in writing], 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.

Section 4 is the Section which sets out in broad terms the scope of broadcasting standards.

[18]   The situation is therefore that complaints to a broadcaster must be formal complaints and they must be dealt with by a broadcaster promptly and without undue formality.

Question 1

[19]   The first question which has been raised for us to consider is whether the Minister's letter 30 April 2010 to the Director of NCA was a formal complaint. In relation to this complaint we make the following points:

• The complaint was on the letterhead of a Minister of the Crown, the Honourable Paula Bennett, it was her complaint addressed to TV3 and it was signed on behalf of Minister Bennett by her authorised staff member.
• The complaint asserted that serious allegations had been made against the Minister and that these were without any proper basis. The complaint alleged defamation and a breach of the Broadcasting Act.
• The alleged potential breach of the Broadcasting Act was not well expressed. The Minister referred to the standards breached only by number and did not expand upon her complaint but it was clearly enough alleged that requirements for fairness, accuracy and balance had not been met.
• An apology was requested without prejudice to other legal options.

[20]   It is our view that the question of whether a complaint amounts to a formal complaint needs to be looked at in a purposive way. The process of complaints to broadcasters is intended to be a simple and accessible process not attended by any undue formality. No forms are prescribed and, in our view, it is sufficient if a complainant, in writing and within the time limit, conveys to a broadcaster that the complainant wishes to express the complainant's displeasure with and disapproval of a particular broadcast for specified reasons which are related to broadcasting standards. We do not think that it was intended that for a complaint to be a formal complaint it was to relate exclusively to broadcasting standards. Nor, in our view, is it necessary or appropriate for a broadcaster to have to winnow through the words to find some which give a sufficient flavour of formality.

[21]   The fact that the Minister requested an apology does not detract from the fact that a standards complaint was made. It is open to a complainant at this stage of proceedings to suggest how a complaint might be satisfied.

[22]   We have no difficulty in reaching the conclusion that the letter from a Minister of the Crown expressing considerable displeasure at a broadcast on the basis, amongst other things, that it breached nominated broadcasting standards (of accuracy, balance and fairness), amounted to a formal complaint.

Question 2

[23]   Once a broadcaster has, as here, received a formal complaint, it is the duty of the broadcaster to consider such complaint. In this case there was a response to the formal complaint and this was the almost immediate reply from the Director of NCA sent by email on 30 April 2010. In this response, the Director of NCA:

• Recorded that he had discussed the events surrounding the broadcast with relevant people within TV3.
• Explained what had happened in relation to the broadcast and sought to say that the broadcaster had acted generally in an acceptable way.
• Stated his view that the story was “very clear and fair to all the parties involved”.
• Stated that if the Minister remained unhappy there could be further discussions.

[24]   Section 7 of the Act is headed Decisions in Respect of Formal Complaints. It requires certain things to be done if a complaint is found to be justified or unjustified. If a complaint is found not to be justified in whole or in part the broadcaster is required to notify the complainant in writing of the broadcaster's decision. The broadcaster is required when notifying a complainant of the broadcaster's decision to give the complainant information concerning the complainant's right to take the matter further.

[25]  Broadcasters in New Zealand range from very substantial commercial operations down to very small operators with very limited resources. The Act applies to them all without distinction. The large commercial operators have much more formalised procedures for dealing with complaints than do the small operators. The large operators have established Standards Committees and these give detailed consideration to complaints and they issue detailed decisions. When a formal complaint is made to a major broadcaster it would be usual for that complaint to be placed onto a conveyer belt leading to its consideration by the Standards Committee. Here that did not happen. Instead, the Director of NCA responded to the complainant almost immediately. The substance of his response was that the complaint was unjustified and that in his opinion the story was “very clear and fair to all the parties involved”.

[26]   On the question of whether the reply email by the Director of NCA was a decision by the broadcaster we refer to the following:

• It appeared to take the position that unless the complainant did something further, the broadcaster was not going to do anything further in relation to the complaint.
• It clearly made the point that the Director of NCA considered the complaint to be unjustified.
• It did not advise the complainant of her rights to take the matter further.
• It was plainly received by the complainant as a rejection of her complaint. 30 April was a Friday. By Tuesday 4 May the complainant had contacted this Authority to say that a complaint had been lodged with the broadcaster, that the response did not address the complainant's concerns and that the complainant wanted to take the matter further.

[27]   We consider, taking a pragmatic and purposive approach, that the response by the Director of NCA did amount to a decision of the broadcaster. His response was prompt and without undue formality as is prescribed in Section 5 of the Act. The decision of the broadcaster was to do nothing. The fact that the broadcaster in conveying an intention to do nothing about the complaint failed to address clearly the broadcasting standards issues, and failed to advise the complainant of her rights to take the matter further cannot, in our view, change the status of the decision to the disadvantage of the complainant. Obviously the Director of NCA has not responded to the complaint in accordance with the usual procedures within TV3 but the essence of what he did was to respond negatively to the complaint. The complainant certainly understood that her complaint was being rejected, as it was, and this is why she approached this Authority looking to refer the complaint to this Authority.

[28]   Therefore, we have reached the point where, as at 4 May 2010, there was a formal complaint, there was a decision in relation to that complaint and the decision had been conveyed by the broadcaster to the complainant albeit other than in proper compliance with the Act. The next step is to consider whether the complainant has referred the matter to this Authority.

Question 3

[29]   On Tuesday 4 May 2010 the Minister’s adviser telephoned this Authority and the Legal Manager made a file note of that conversation.

[30]   Section 8 of the Act provides that a complainant may refer a complaint to the Authority if the complainant is dissatisfied with the decision of the broadcaster or with the action taken by the broadcaster. The reference to action taken by the broadcaster refers back to Section 7(1) which provides that in a case where a complaint is found to be justified, the broadcaster shall take appropriate action. In this case the broadcaster did not uphold the complaint and so no appropriate action was taken.

[31]   The complainant here, the Minister, was dissatisfied with the decision of the broadcaster as made by the Director of NCA requiring us to consider the question whether the complainant has now referred the complaint to this Authority. The expression refer has different shades of meaning. In the context of the Act we consider that it means to bring a broadcaster's decision with which a complainant is dissatisfied, to the attention of this Authority in order for this Authority to give consideration to the complaint. This referral, if it was a referral, happened through a series of events. First there was the telephone inquiry to this Authority in which the Authority was notified of the complaint, of the broadcaster's decision and of the dissatisfaction of the complainant with the broadcaster's decision. Then, at the request of this Authority, the relevant correspondence was copied to this Authority. We consider that in total these actions amounted to a referral of the complaint to this Authority in terms of Section 8(1B). We have reached this conclusion for reasons which include the following:

• By the end of 4 May this Authority was aware of the complaint, the decision of the broadcaster through the Director of NCA and the dissatisfaction of the Minister with the broadcaster's decision. Copies of all relevant documents were with this Authority.
• No formal process of referral is prescribed in the Act and we consider that we need to look at the reality and substance of what happened rather than pay too much attention to usual form and processes of some broadcasters as these are not imposed by statute.
• Although as at 4 May 2010 the Authority did not have sufficient information to enable it to determine the complaint on the papers, it did in our view have a sufficient foundation to enable it to proceed to obtain such further information as would have been required to determine the complaint.

[32]   What has happened here is that the advice of the Legal Manager that the process as it had occurred up to the end of 4 May was insufficient to enable or require the machinery of this Authority to be started, caused the Minister to write another letter of complaint and label this a formal complaint. This then caused the usual machinery within the broadcaster to be activated and for a decision of the broadcaster's Standards Committee to be issued on 10 June 2010. The Minister then missed the rigid time limit, applicable to that decision, which began on 10 June 2010 in which to refer the matter to this Authority. The Minister has now argued that although she missed any time limit that began on 10 June 2010, the second part of the process which followed from the advice given by the Legal Manager was a type of supernumerary process, as the first part of the process which began on 30 April and carried through to the end of 4 May was sufficient to establish her status before this Authority. The Minister has argued that the advice she was given by the Authority was not correct and that the complaint should have been dealt with after 4 May 2010.

[33]   As we have endeavoured to say, we agree that the Minister's complaint did have status before this Authority by the end of 4 May 2010. We have come to this conclusion following an approach which endeavours to look at substance rather than form, which looks at the purpose of the Act and which endeavours to give complainants whether they be a Minister or anybody else an opportunity to be heard as to the substance of their complaint. In all of the circumstances we do not think that a narrow legalistic approach ought to be taken to these issues.

Minority view

[34]   A minority of the Authority (Leigh Pearson) is of the view that the 30 April letter from Ms Bennett to the Director of NCA at TV3 was not a formal complaint about the 29 April 3 News item. It was a typical letter of complaint received by television editors demanding an on-air apology. Although one sentence of the letter referred to potential breaches of the Broadcasting Act, the remainder of the letter was clearly not related to matters of broadcasting standards. The letter began by saying, “I am writing in response to the story aired on 3 News on Thursday 29 April”, and the complainant went on to discuss defamation, potential legal action, and suggested that an apology should be broadcast on that evening’s news bulletin. The fact that an apology was sought suggested that the matter would be resolved if an apology was forthcoming.

[35]   Section 6(1)(a) of the Broadcasting Act states that broadcasters must “receive and consider formal complaints...where the complaint constitutes...an allegation that the broadcaster has failed to comply with section 4”. In the minority’s view, this letter did not constitute a formal complaint about broadcasting standards; it was a threat of further action, whether in a broadcasting standards context or in other legal remedies, if the broadcaster did not issue an apology that evening. The minority considers that it was appropriate for the Director of NCA to have dealt with this complaint as one that was not made under the Broadcasting Act.

[36]   The minority further considers that, even if Ms Bennett’s letter of 30 April was a formal complaint, the response sent to the complainant was not a “decision” for the purposes of the Broadcasting Act. This was clear due to its informality and the short time frame in which it was provided. The reply was essentially a response to a request for an on-air apology. The answer was “no”. All parties to this complaint would expect proper and timely consideration of a “formal” complaint rather than the swift email reply provided.

[37]   While bearing in mind that complainants cannot be expected to know the difference between a formal and informal response, the minority notes that broadcasters have a right to discharge their statutory obligations under the Broadcasting Act 1989. If the Authority accepted a referral when the broadcaster still had an opportunity to properly consider a complaint, the minority considers that this would be unfair, and effectively a denial of the broadcaster’s rights.

[38]   In this case, other than a general reference to the item being clear and fair, no determination was made on the complaint in terms of breaches of broadcasting standards, and Ms Bennett was not advised of her right to refer the complaint to the Authority (see section 7 of the Broadcasting Act). On 4 May when the complainant asserts that the Authority should have accepted her referral, it was still within the 20 working day timeframe in which the broadcaster had the right to discharge these statutory obligations.

[39]   In these circumstances, the minority finds that the Authority had no jurisdiction to accept Ms Bennett’s complaint about the 29 April news item on 4 May.

[40]   In addition, the minority has considered the reasonableness of the complainant’s assertion that she had referred the complaint to the Authority on that date. The advice given to the complainant on 4 May was that the broadcaster still had an opportunity to make a formal decision on the complaint within the timeframes outlined in the Broadcasting Act, and that “once your complaint has been handled in this way, you will then be able to refer the complaint to the BSA”. The broadcaster’s formal decision of 10 June 2010 also concluded with the following paragraph:

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, (P.O. 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.

[41]   The minority also takes into account that, on 10 May, the complainant followed the advice of the Authority’s Legal Manager and sent a second complaint to TVWorks – headed “Formal Complaint” – which referred to breaches of standards in both the 29 and 30 April news items. The minority considers that it was clear only at this point that the complainant wished to make a formal complaint and receive a formal decision from the broadcaster about both items, and considers that this 10 May action was an acknowledgement of the Legal Manager’s advice that the complaint could not be referred to the Authority until TVWorks had been given an opportunity to formally respond to the complaint.

[42]   Based on all the information provided to, and apparently accepted by, the complainant up until 13 July, the minority is of the view that the complainant had no reasonable basis upon which to believe that her complaint had been referred to, and accepted by, the Authority on 4 May. Because the complainant did not contact the Authority again until 13 July – more than 20 working days after receiving TVWorks’ decision of 10 June – the minority finds that the Authority has no jurisdiction to accept a referral of the complaint about the 29 April news item.

Complaint about 30 April 3 News item

[43]   In a letter dated 4 May 2010, and sent to TVWorks Ltd on 10 May 2010, Ms Bennett also complained that a 3 News item broadcast on 30 April breached broadcasting standards. No complaint about the 30 April item had previously been sent to the broadcaster. TVWorks sent a decision on that complaint to Ms Bennett on 10 June 2010.

[44]   Ms Bennett had 20 working days after receiving that decision to refer the complaint about the 30 April news item to the Authority. Section 9 of the Broadcasting Act states that the Authority “must not accept a complaint” referred to it outside that period. Because the complainant did not contact the Authority until 13 July 2010, the Authority has no jurisdiction to accept her complaint about the 30 April item.

A majority of the Authority finds that the Authority has jurisdiction to accept the complaint by Ms Bennett about the 29 April 3 News item.

The Authority unanimously finds that the Authority does not have jurisdiction to accept the complaint by Ms Bennett about the 30 April 3 News item.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 September 2010