BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The complainant referred to the Authority a formal complaint about the film Fifty Shades of Grey, which was broadcast on TV3 at 8.30pm on Sunday 22 January 2017. The broadcaster argued that the original complaint had been received prior to the broadcast of the film, and so did not constitute a valid formal complaint (and therefore could not be referred to the Authority). To support its position, the broadcaster referred to the time stamp on the automatic acknowledgement email, which is sent to both the complainant and the broadcaster at the time the complaint is lodged. This time stamp read ‘22 January 2017 at 20:25’ (being five minutes before the film was broadcast). The Authority found that the broadcaster was entitled to rely on this time stamp, and that a valid formal complaint was not lodged with the broadcaster (as it concerned a programme which had not yet been broadcast). The Authority therefore did not have jurisdiction to accept the complainant’s referral.

Declined jurisdiction

Introduction

[1]  MediaWorks TV broadcast the film Fifty Shades of Grey at 8.30pm on Sunday 22 January 2017.

[2]  On 17 February 2017 the Authority received a complaint referral from Mitchell Crow about Fifty Shades of Grey. The substance of the complainant’s referral related to the film’s alleged portrayal of a non-consensual and unhealthy BDSM (Bondage-Discipline Dominance-Submission Sadism-Masochism) relationship, as well as the film’s glorification of rape and domestic abuse.

[3]  Upon notification of the referral, the broadcaster responded to us stating that the original complaint had been submitted prior to the broadcast of the film and so did not constitute a formal complaint. To support its position, the broadcaster provided a copy of the automatic acknowledgement email, which had been sent to both the broadcaster and the complainant at the time the complaint was lodged. The time stamp on this email read ‘22 January 2017 at 20:25’ (being five minutes before the film was broadcast).

[4]  The complainant’s original complaint to the broadcaster stated that the movie and book featured a woman forced into a relationship and abused, presented ‘under the pretense [sic] of being BDSM, which is an offensive misrepresentation of that lifestyle’. The complaint also requested ‘the ability for pre-emptive complaints of this nature to be handled on an urgent basis’.

[5]  The broadcaster’s response to the original complaint was sent to the complainant at 5.34pm on 17 February 2017, being the 19^th working day after the broadcast.¹ The broadcaster advised the complainant that a complaint could not be made prior to broadcast, and also forwarded a generic (but fulsome) response it had prepared for other complaints it had received about Fifty Shades of Grey.

[6]  The issue is whether the complainant lodged a valid formal complaint with MediaWorks, and therefore whether the Authority has jurisdiction to accept the complainant’s referral.

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

Did the complainant lodge a valid formal complaint with MediaWorks, such that the Authority now has jurisdiction to accept the complainant’s referral?

[8]  In reliance upon the time stamp of the acknowledgement email, on 27 February 2017 the Authority advised the complainant that we could not accept the referral as the complaint had been made prior to broadcast.

The parties’ submissions

[9]  In response to the Authority, the complainant argued:

• The time stamp included on the acknowledgement email was incorrect, as the complaint was filed during the end credits of the film.
• The reference to a ‘pre-emptive complaint’ was in relation to a phone conversation prior to the broadcast, in which the complainant had asked for the planned programme to be cancelled.
• The complaint described the content of the broadcast accurately and explained why it was offensive.
• The broadcaster had only responded to the complaint on the 20th working day after the broadcast, precluding the ability to resubmit the complaint (the complainant did not include Waitangi Day in this calculation).
• The complainant no longer had a copy of the acknowledgement email from MediaWorks confirming receipt of the complaint (and containing the time stamp on which the broadcaster now relies).

[10]  In support of its position that the complaint was filed prior to the broadcast, the broadcaster:

• Provided a copy of the ‘original message’ (as received by its servers). The time and date the email was received by the server is recorded as ‘21 Jan 2017 22:25:41 -0800 (PST)’, which it submitted equated to 22 January 2017 20:25 in Auckland time.
• Provided a copy of the information extracted from an online archive service previously used by MediaWorks for evidence in court, which also supported its view, it said.
• Stated that the complainant would have received the acknowledgement email ‘moments after submitting the complaint’.

[11]  In response to the broadcaster’s submissions, the complainant reiterated that the time stamp did not match the time when the form was submitted. The complainant suggested that, because they had the complaint form open before the film began, that time may have been registered as the date and time the complaint was submitted.

Our analysis

[12]  Part 2 of the Broadcasting Act 1989 (the Act) outlines broadcasters’ obligations to receive and consider formal complaints about programmes broadcast. The relevant section is as follows:

6 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]...

(2) 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.

[Our emphasis]

[13]  Broadcasters, and the Authority, are subject to the legislative requirements contained in the Act. Section 6(1)(a) above makes it clear that broadcasters are only required to receive and consider complaints which, first, concern a programme ‘broadcast by it’, and second, allege a breach of broadcasting standards. The Act is therefore concerned only with content that has in fact been broadcast, which may include content that has been edited prior to broadcast, and which is accompanied by classifications, advisories and other programme information. A complaint made before broadcast is unable to take into account the content actually broadcast, as well as these contextual factors.

[14]  In this case, we have not been provided with any evidence to suggest that the time stamp contained on the email acknowledgement form was incorrect, or to suggest that it was unreasonable for the broadcaster to have relied on the time stamp, which indicated that the complaint was submitted prior to the broadcast.

[15]  This view is supported by section 11(a) of the Electronic Transactions Act 2002, which states that, where an addressee has designated an information system for the purpose of receiving electronic communications, ‘an electronic communication is taken to be received... at the time the electronic communication enters that information system’. The timing of the email was also supported by the broadcaster’s further evidence (the server’s receipt and the online archive service).

[16]  From a practical perspective, if broadcasters were unable to rely on the time stamp contained on such emails, this would make the complaints process unmanageable. Further authentication would be required for the receipt of all complaints and the cost of this process would likely outweigh the benefit provided by the standards complaint system.

[17]  Based on the information provided to us, we have no basis on which to conclude that the broadcaster’s technical processes for receiving and acknowledging complaints was defective. We therefore find that the Authority does not have jurisdiction to accept the complainant’s referral, as no valid formal complaint was lodged with the broadcaster in the first instance.

General comments

[18]  Where a valid formal complaint is lodged, broadcasters are required to respond in writing within 20 working days. Section 5(h) of the Act also requires the prompt consideration of a complaint in the first instance. Here, the broadcaster’s delay in responding to the initial complaint resulted in the complainant having only one working day to submit a formal complaint about the broadcast within the statutory timeframe. We consider that, having concluded that the complaint was not valid in this case, the broadcaster should have responded to the complainant sooner.

[19]  While the complainant had three calendar days after receiving the broadcaster’s response to resubmit the complaint in time, had the response not been received on a Friday the complainant would have had little time to resubmit. Such a delay could result in unfairness to complainants and should be considered by broadcasters when declining complaints on technical grounds.

Signed for and on behalf of the Authority

Te Raumawhitu Kupenga

Member

19 April 2017

Appendix

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

1     Mitchell Crow’s formal complaint – 22 January 2017
2     MediaWorks’ response to the complaint – 17 February 2017
3     Mitchell Crow’s referral to the Authority – 17 February 2017
4     MediaWorks’ response to the Authority – 21 February 2017
5     Mitchell Crow’s response to the Authority – 22 February 2017
6     Mitchell Crow’s further comments – 27 February 2017
7     MediaWorks’ evidence – 2 March 2017
8     MediaWorks’ further evidence – 7 March 2017
9     Mitchell Crow’s final comments – 8 March 2017
10   MediaWorks’ final comments – 9 March 2017

¹ The time calculation excluded Waitangi Day falling on Monday 6 February 2017.