BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

                                 INTERLOCUTORY DECISION

---

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Popetown – animated comedy set in a fictional Vatican City – allegedly in breach of good taste and decency and unfair

Decision on interlocutory application – second request for formal hearing – further request for hearing made in light of increased public interest in issue of balance between free speech and rights of religious groups to be free from mockery

Findings
Authority may reconsider interlocutory decision if party presents new relevant information not reasonably able to be adduced at the time of the first application – new information as to increased public interest relevant in the present case – Authority reconsidered earlier decision – increased public interest still insufficient reason of itself to convene formal hearing – application declined.

This headnote does not form part of the decision.

Background

[1] On 16 September 2005 Bishop Denis Browne, on behalf of the New Zealand Catholic Bishops Conference, referred to the Authority complaints about three episodes of Popetown, an animated satirical comedy broadcast on C4.

[2] On 28 November 2005 the Broadcasting Standards Authority released its interlocutory decision on a request from the complainant to convene a formal hearing in respect of the complaints (see Decision No. ID2005-112). The Authority declined the complainant’s request, and its reasons for doing so are set out in paragraphs [15]–[20] of that decision.

[3] The complainant has now made a further request that the Authority convene a formal hearing to consider the complaints.

Complainant’s Submissions

[4] The complainant submitted that the issue of the balance to be drawn between the competing rights of free expression on the one hand, and freedom of religious groups from denigration on the other, is now of such public importance that a formal hearing was required to resolve the Popetown complaints.

[5] The complainant stated:

• The submissions of the Conference raise the issue of where the line is to be drawn and recent events and likely future events make the necessity to deal with that matter immediate and acute. The possible political and economic consequences of the Danish cartoons incident clearly demonstrate what is at stake is not the outcome of an academic debate on the rights and freedoms of the media. The practical issues require the identification of the point where media freedom (or in some cases licence) ends and the public interest and the rights of the community and members of the community begin. …
• The Conference takes the view that the matter has now become far too serious to be dealt [with] without fair consideration and debate, and that issues of natural justice and public interest require that full and formal hearings be undertaken to deal with the broad issues involved. The Conference therefore renews its request that its current application be dealt with by oral hearing and submission and not merely on the basis of written submissions.

CanWest’s Submissions

[6] CanWest opposed the request. It submitted that the other issues referred to by the complainant – such as the Danish cartoons – were not relevant to the Authority’s determination of whether the episodes of Popetown complied with broadcasting standards. It concluded:

[Canwest] believes that the substantive issues raised by the referral have already been canvassed in depth and that the Authority has all the material it requires to make a determination of the issue.

Authority's Determination

[7] The first issue for the Authority is whether it can consider the NZCBC’s further request for a hearing. The Authority has already considered one such request from the complainant, and declined the request in Decision No. ID2005-112. The issue therefore arises whether the Authority is prevented from deciding the same issue again.

[8] Where the Authority has declined an interlocutory application, and a further, identical application has then been made on the same factual basis, the Authority would be unable to consider the merits of that further application. The doctrine of res judicata/issue estoppel would apply, whereby litigants are prevented from re-litigating an issue identical to one that has already been decided.

[9] Nevertheless, the Authority considers in circumstances where an applicant produces new information, relevant to the issues at hand, and which could not reasonably have been adduced at the time of the earlier application, it should consider the new application. There is recent support for this approach from the Court of Appeal; see Link Technology 2000 Limited & Anor v The Attorney General [2005] NZCA 27, paragraphs 40–55.

[10] In light of this approach, the next issue for the Authority is whether the complainant’s submissions raise any matters relevant to the determination at hand, and which could not reasonably have been produced at the time of making the first application.

[11] In essence, the complainant makes a single submission. In light of two recent highly publicised events – the publication of cartoons depicting the Prophet Mohammed, and CanWest’s stated intention to screen the controversial episode of the animated series South Park, which featured a bleeding Virgin Mary statue – the public interest in the balance between freedom of expression and the right of religious groups to be free from attack has become a matter of critical public importance. This, the complainant submits, means that the issue should be addressed through a formal hearing.

[12] The Authority has recognised that the degree of public importance in a particular issue is one of the factors that it will take into account in determining whether a hearing is required; see Decisions ID2004-154 and ID2005-112.

[13] The Authority stresses that the particular examples used by the complainant – the cartoons and South Park – are, of themselves, not relevant to the determination of the present complaints, which must be determined on their own facts. Nevertheless, the Authority accepts that the wider issue raised by those examples – that of the balance between free speech and the rights of religious groups – has become a matter of intense public interest and debate. It also accepts that at the time it released its first decision on the complainant’s application for a hearing, no-one could reasonably have predicted the degree to which this issue would rapidly become a matter of widespread public interest and importance in New Zealand.

[14] However, while the Authority agrees with the complainant that the wider issue raised by the Popetown programmes is now a matter of general public interest, it also notes that the public interest is only one of the factors that the Authority will take into account. The other considerations include:

• whether there are any complex issues of fact that could best be resolved by hearing witnesses
• whether there are issues of credibility that can best be determined by examining witnesses in person
• whether the complaint concerns complex legal issues that can best be addressed through oral submissions and argument, and the questioning of parties or their legal counsel
• whether there are special circumstances relating to the complainant meaning that they cannot be fairly expected to make submissions in writing.

[15] The complainant has not suggested that any of these other considerations have changed, and that is not the basis of its further application for a formal hearing. In light of this, the sole issue for the Authority is whether the increased public interest in the wider issue now requires the Authority to convene such a hearing.

[16] While the public interest in, and awareness of, this wider issue has increased over recent weeks, the issue itself is not a new or additional factor of which the Authority has previously been unaware. Indeed, in four decisions issued about other episodes of Popetown, consideration of this issue is central to the Authority’s determination (see Decision 2005-096, paragraphs [30]-[37]; Decision 2005-097, paragraphs [35]–[42]; Decision 2005-111, paragraphs [28]–[36]; Decision 2005-128, paragraphs [34]–[42]). The Authority is likewise aware that the issue will be fundamental to its determination of the complaints lodged by the NZCBC.

[17] For these reasons, the Authority remains unconvinced that its understanding of the issue in respect of these particular complaints is likely to be advanced by hearing the parties in person.

[18] While the Authority remains open to requests for formal hearings in appropriate cases, in light of the presumption of informality in the Broadcasting Act 1989 the Authority is mindful of the need to convene such a hearing only in circumstances where it is likely to assist materially the determination of the relevant issues.

For the above reasons the Authority declines the complainant’s further request for a formal hearing

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 March 2006

Appendix

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

1. NZCBC formal complaint to CanWest – 22 July 2005
2. CanWest’s response to the formal complaint – 22 August 2005
3. NZCBC’s referral to the Authority – 16 September 2005
4. CanWest’s response to the referral – 26 September 2005
5. NZCBC’s request for a formal hearing – 8 November 2005
6. CanWest’s response to the request for a formal hearing – 18 November 2005
7. NZCBC’s further request for a formal hearing – 8 February 2006
8. CanWest’s response to the further request – 15 February 2006