BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has declined to determine a complaint about an item on Nights, which discussed the New Zealand Book Council’s initiative to create a men’s book club, with the aim of encouraging more men to read books. Mr Golden complained that the item was inaccurate. He submitted that men should not be encouraged to read more books, as paper-based books were, for example, heavy, spread unwanted bacteria and could cause eye problems. The Authority declined to determine the complaint on the basis that it was frivolous and trivial, and ordered the complainant to pay a reasonable portion of costs to the broadcaster to compensate for the time and resources spent in dealing with the complaint.

Declined to Determine: Accuracy

Order: Section 16(2)(a) – $100 costs to the broadcaster

The item

[1]  An item on Nights discussed the New Zealand Book Council’s initiative to create a men’s book club, with the aim of encouraging more men to read books.

[2]  The item was broadcast on 1 February 2019 on RNZ National.

The complaint

[3]  Allan Golden complained that the item was inaccurate. He argued that men should not be encouraged to read more books, as paper-based books were, for example, heavy, spread unwanted bacteria and could cause eye problems.

[4]  The broadcaster, RNZ, responded that the complaint did not identify any issue of substance under the broadcasting standards regime. RNZ did not uphold the complaint.

[5]  In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Outcome: Declined to Determine

[6]  Section 11(a) of the Broadcasting Act 1989 authorises this Authority to decline to determine a complaint if it considers that the complaint is frivolous, vexatious, or trivial. The policy behind section 11 is that the time and resources of the Authority, which are, in the end, sustained by broadcasters and by the people of New Zealand, should not be wasted in having to deal with matters which objectively have no importance.¹

[7]  A ‘frivolous’ complaint is one which is not serious or sensible, and is unworthy of being treated in the same way as a complaint which has some merit. A ‘trivial’ complaint is one which is of little or no importance and is at such a level not to justify it being treated as a serious complaint.²

[8]  Mr Golden has not identified why the advantages of reading, referred to in the item, were inaccurate, instead raising a variety of unusual and trivial reasons for why men should not be encouraged to read paper-based books.

[9]  We therefore consider that Mr Golden’s complaint is frivolous and trivial and we decline to determine it under section 11(a) of the Broadcasting Act 1989.

For the above reasons the Authority declines to determine the complaint.

[10]  As part of this process, RNZ indicated that it intended to seek from Mr Golden reimbursement of the costs incurred in processing his complaint. Mr Golden’s attention was drawn to this submission.

[11]  Having declined to determine the complaint, we invited submissions from the parties on whether and what costs should be ordered. In particular, we sought further information from RNZ as to the time and cost incurred in dealing with Mr Golden’s complaint.

The parties’ submissions

[12]  RNZ sought reimbursement for costs totalling $506.25 plus GST and provided a breakdown of the time and resources spent on the matter.

[13]  Mr Golden did not make any submissions on costs, despite being invited to do so. We have provided RNZ’s submissions to him for his information.

Our decision on costs

[14]  Section 16(1) of the Broadcasting Act 1989 states:

Subject to subsection (2), the Authority may, in any proceedings, order any party to pay to any other party such costs and expenses (including expenses of witnesses) as are reasonable, and may apportion any such costs between the parties in such manner as it thinks fit.

[15]  Section 16(2)(a) states:

No award of costs shall be made under subsection (1) against the complainant unless,—

in the opinion of the Authority, the complaint is frivolous or vexatious or one that ought not to have been made; … 

[16]  The purpose of an order of costs is ordinarily to enable recovery of a contribution to the costs reasonably incurred during the complaints process. In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.³

[17]  Costs awards are most often ordered by the Authority to recompense in part a successful complainant for legal costs which have been incurred.⁴ Where costs have been awarded to a successful complainant, the Authority has generally awarded 20-25% of the actual costs incurred. Costs are ordered rarely.

[18]  We consider costs ordered against a complainant should also be awarded sparingly to ensure complainants are not dissuaded from lodging complaints with merit.⁵

[19]  The requirements for section 16(2)(a), which enable us to make a costs order, are met in this case, as we have determined that the complaint was frivolous and one that ought not to have been made. In making a decision as to whether, and what, cost order is appropriate, however, we have found the below factors relevant:

• The complaint was found to be trivial and frivolous, and to raise issues that did not justify it being treated as a serious complaint.
• This is not Mr Golden’s first complaint. He is familiar with the broadcasting standards regime and complaints process.
• Mr Golden has been warned on a number of occasions between 2013 and as recently as this year that the broadcaster may choose to request reimbursement of reasonable costs incurred in dealing with complaints found to be frivolous, vexatious or that ought not to have been made.⁶
• It is clear that RNZ deals with a number of complaints from Mr Golden, only a small portion of which come before the Authority. 91% of complaints referred by Mr Golden to the Authority between 2013 and 2019 were against RNZ. 
• RNZ provided clear evidence of the time spent and cost incurred in dealing with this particular complaint. We consider that those costs were reasonable.
• Costs awards should be made rarely. To date, only one award of costs has been made by the Authority against a complainant.⁷

[20]  Taking into account the factors above, we consider it is reasonable for us to order Mr Golden to pay a contribution towards RNZ’s costs, to reimburse RNZ for the time spent in dealing with a frivolous and trivial complaint that ought not to have been made.

[21]  We have found that an award of $100.00 is reasonable and proportionate (being approximately 20% of the full costs incurred by RNZ in this case).

[22]  This is a small contribution on this occasion and we warn the complainant that where further frivolous or vexatious complaints are made, this scale may be increased. 

Order

Under section 16(2)(a) of the Act, the Authority orders Allan Golden to pay costs to Radio New Zealand Ltd in the sum of $100.00.

The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings 
Chair
18 July 2019  

Appendix

The correspondence listed below was received and considered by the Authority:

1      Allan Golden’s formal complaint – 4 February 2019

2      RNZ’s response to the complaint – 12 February 2019

3      Mr Golden’s referral to the Authority – 4 March 2019

4      RNZ’s further comments – 21 March 2019

5      Mr Golden’s further comments – 26 March 2019

6      RNZ’s submissions on costs – 14 June 2019

¹ Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 63
² As above
³ Guidance: Costs Awards to Complainants, Broadcasting Standards in New Zealand Codebook, page 66
⁴ As above 
⁵ McDonald and Television New Zealand Ltd, CIV-2011-485-1836, 30 April 2012 at [33]

⁶ See Golden and RNZ, Decision Nos. ID2018-097; 2018-083; 2016-005; 2013-028

⁷ Schwabe and Radio New Zealand Ltd, Decision No. 2002-091