BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has accepted jurisdiction to consider a complaint under the privacy standard made by the Privacy Commissioner. The Authority found the Privacy Commissioner had standing to make the complaint under the Broadcasting Act 1989. It also found it is capable of considering the complaint on its merits and would not be subject to undue influence or bias as a result of the complainant’s status. Finally, it agreed the complaint raised some matters outside the scope of the complaints process and, in accordance with its usual procedures, such matters would not be considered.

Accepted Jurisdiction

Background

[1]  The Privacy Commissioner John Edwards has made a direct privacy complaint regarding a broadcast of Morning Report on 29 July 2021 on RNZ National. In its submissions to the Authority on the complaint, RNZ has raised three preliminary issues:

(a)  Whether the Privacy Commissioner has standing to make a complaint to the Authority

(b)  Whether the Authority will be subject to an element of undue influence or bias in its consideration of the complaint due to the Privacy Commissioner’s status and experience

(c)   Whether the complaint exceeds the boundaries of what would be allowed by way of a complaint and/or invites the Authority to exceed its jurisdiction.

[2]  We have carefully considered RNZ’s submissions. The purpose of this decision is to indicate to the parties how the Authority proposes to proceed with the complaint.

Analysis

(a) Does the Privacy Commissioner have standing to make the complaint?

[3]  With reference to the Broadcasting Act 1989 (the Act), we do not consider there to be any reason to bar the Privacy Commissioner from making a complaint to us:

• The Act allows a person to make a complaint about the privacy of another (so that representative complaints are expressly contemplated).
• The Broadcasting Standards Authority complaints process operates with minimal formality.
• The objects of the Act are best served by considering the complaint. It would not be appropriate to decline this complaint solely on the basis of the complainant’s identity.

[4]  In addition, there is nothing in the Privacy Act 2020 which expressly bars or prohibits the Commissioner from bringing this complaint and there would be no prohibition on John Edwards making a complaint in a personal capacity.

[5]  For these reasons, the Authority accepts the Privacy Commissioner has standing to make the complaint.

(b) Do issues of undue influence or bias arise in the Authority’s consideration of the complaint due to the Privacy Commissioner’s status and experience?

[6]  We acknowledge the Privacy Commissioner’s special position and status with regard to issues concerning privacy. However, the Authority is capable of considering the complaint independently and on its merits, as with any complaint, and that is what we will do.

[7]  If, following issue of the Authority’s decision, RNZ still considers the Authority to have been unduly influenced or biased, it has the usual appeal rights available to it.   

(c) Does the complaint exceed the boundaries of what would be allowed by way of a complaint and/or invite the Authority to exceed its jurisdiction?

[8]  We accept there are matters raised in the complaint that are outside the scope of the complaints process and/or our jurisdiction in the determination of complaints (eg submissions arguing for changes to the privacy standard).

[9]  It is not unusual for submissions on a complaint to canvas matters outside the complaints process. In accordance with its usual procedures, the Authority will not consider irrelevant material in considering the complaint. The complaint will be assessed against the requirements of the radio code of broadcasting practice in force at the time of the broadcast.

[10]  Again, if following issue of the Authority’s decision, RNZ considers the Authority to have taken into account irrelevant matters or exceeded its jurisdiction, it has the usual appeal rights available to it.  

For the above reasons and on the above terms, the Authority accepts jurisdiction to consider the Privacy Commissioner’s complaint
Signed for and on behalf of the Authority

Susie Staley
Acting Chair
27 October 2021

Appendix

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

1  The Privacy Commissioner’s complaint – 24 August 2021

2  RNZ’s submissions on the complaint – 30 September 2021