BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
American Pie Presents: Beta House – movie contained nudity and sex scenes – question of whether Authority has jurisdiction to accept a referral of the complaint

Findings
Authority has jurisdiction to accept the referral

This headnote does not form part of the decision. 

INTERLOCUTORY DECISION

[1]  On 24 May 2011 a movie called American Pie Presents: Beta House was broadcast on FOUR. The same day, and within the period for making complaints, the complainant lodged a complaint with the broadcaster. On 26 May 2011, the broadcaster sent the complainant a decision by email in which it declined to uphold the complaint.

[2]  Section 7 of the Broadcasting Act 1989 requires that when a broadcaster finds a complaint not to be justified in whole or in part, the broadcaster shall notify the complainant in writing of the decision. The complainant then has an opportunity to refer the complaint to this Authority but that opportunity must be taken with 20 working days of having received the decision. The broadcaster says that on 26 May 2011 it notified the complainant by email that his complaint had not been upheld. Thinking that the broadcaster had not responded within the period within which it was required to respond, the complainant referred his complaint to this Authority pursuant to section 8(1C) of the Act.

[3]  The complainant says that he did not receive the decision of the broadcaster and so he phoned the Authority on 11 July 2011 saying that he had not received a response, either from the Authority or TVWorks. The Authority responded to the complainant and informed him of the relevant time-frames, including his right to refer the complaint within 60 days of the broadcast if he did not receive a response from the broadcaster. On this basis, the complainant referred his complaint to this Authority on 4 August 2011. The broadcaster has taken the point that it had notified the complainant of its decision and therefore this Authority does not have the jurisdiction to consider his complaint because it was referred outside the time period allowed by the Act.

[4]  The complainant submitted that the Authority should accept his referral in the absence of “proof of delivery” or his acknowledgement of receipt. He argued that emails get lost and so proof of delivery is important.

[5]  The question here is therefore whether the complainant has been notified as required by the Act.

[6]  Issues of notification and receipt can raise a number of vexed questions arising out of different circumstances including:

• What is involved in notification?
• Is notification effected when the notifying party dispatches the information even if the information is not received?
• Is the notifying party required to prove that the receiving party actually received the information?
• Is the onus on the receiving party to demonstrate that the information was not received once the notifying party has demonstrated that the information has been dispatched?
• Does it make a difference whether the receiving party could have received the information but neglected to receive it?

[7]  In other jurisdictions there are often rules which allow questions like these to be answered. Here the legislation does not allow for ready and clear answers. We note that the Act uses both the words “notify” and “receive” in provisions relating to decisions on formal complaints. For example, while section 7 states that broadcasters must “notify” complainants of the decision or action taken, under section 9(4)(a) the time limit for referring complaints to the Authority starts the day after the day on which the complainant “received notice” of the broadcaster’s decision or action.

[8]  In the present case, the complainant says that the information was not “received” by him. It is possible that the information was sent by email and was lost before it reached the receiving information system of the complainant.

[9]  In these circumstances we think that the fair thing to do is to allow the complainant to proceed and we rule accordingly. We reach this conclusion for the following reasons:

• The legislation does not give a ready answer in circumstances such as the present.
• This is the first time the issue has come before the Authority.
• We accept the information was not received by the complainant.
• Email correspondence is not an infallible form of communication.

[10]  We nevertheless acknowledge that the lack of clarity in this area needs to be addressed, and we will as soon as practicable undertake consultation with a view to issuing guidance for the future.

For the above reasons the Authority finds that it has jurisdiction to accept Mr Hastie’s referral of a complaint about the broadcast by TVWorks Ltd of American Pie Presents: Beta House on FOUR on 24 May 2011.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 November 2011