BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
RNZ News – item reported on French and Greek elections – it was reported that “the polls have opened in Greece for parliamentary elections seen as a referendum on the country’s harsh austerity measures” – use of the word “harsh” allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Jurisdictional matter – on balance, complainant was entitled to refer his complaint on the basis he did not receive the broadcaster’s decision – Authority has jurisdiction to accept complaint

Standard 4 (controversial issues) – use of the word “harsh” did not require the presentation of alternative viewpoints – not upheld

Standard 5 (accuracy) – use of the word “harsh” was not a material point of fact and would not have misled viewers – “harsh” not pejorative in this context but intended to mean strict or stringent – not upheld

This headnote does not form part of the decision.

---

Introduction

[1]  A news item about the French and Greek elections reported that “the polls have opened in Greece for parliamentary elections seen as a referendum on the country’s harsh austerity measures”. The item was broadcast on Radio New Zealand National on 6 May 2012.

[2]  Paul Ridley-Smith made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, objecting to the use of the word “harsh”.

[3]  RNZ posted its response to Mr Ridley-Smith, dated 28 May 2012, within the 20 working days allowable under the Broadcasting Act 1989 (the Act). The complainant did not receive it in the post, and sought to refer his complaint on the basis the broadcaster had not notified him of its decision.

[4]  Mr Ridley-Smith complained under the balance, accuracy and fairness standards. The fairness standard applies only to individuals and organisations taking part or referred to, and the complainant did not identify who he thought was treated unfairly, so we have limited our consideration to balance and accuracy. The issues therefore are:

• first, whether we have jurisdiction to accept Mr Ridley-Smith’s referral
• second, if we do have jurisdiction to accept and consider the complaint, whether the broadcast breached Standards 4 (controversial issues) and 5 (accuracy) of the Radio Code of Broadcasting Practice.

Jurisdictional matter

[5]  Under section 7 of the Act, the broadcaster is required to “notify” a complainant of its decision on their complaint. Section 8(1C) of the Act provides that a complainant may refer the complaint to the Authority if at least 20 working days have passed since the broadcaster received the complaint, and “the broadcaster has not notified the complainant” of its decision.

[6]  The key issue, given that the complainant did not receive the broadcaster’s decision, is what amounts to “notification”. “Notify” is not defined in the Act. It is defined in the Oxford English Dictionary as:

            To make known, publish, proclaim; to intimate, give notice of, announce.

            To inform (someone); to give notice to.

            Thesaurus: to tell; alert; inform; advise; report; make known.

[7]  We acknowledge that there is some ambiguity in the way in which the Act deals with notifications of the outcome of a complaint. In various legal contexts the question can arise whether actual notification is required or whether in some circumstances notification can be deemed to have occurred even if the information has not been received by its intended recipient. For example, in the common law, an offer is deemed to have been accepted when a letter of acceptance is posted. Our Act, however, indicates some expectation of receipt. For example, the language in section 9 of the Act prescribes the time limits in which a complaint can be referred. Where a decision is received from the broadcaster, the time limit is said to begin the day after the day on which “the complainant received notice of the broadcaster’s decision” (our emphasis).

[8]  We would like to see this issue of notification clarified when the Act is reviewed. In the meantime, each case will necessarily depend on its particular facts. Here, we accept that best efforts were made by the broadcaster in posting its decision to the complainant. However, taking into account the purpose and objectives of the Act, namely, allowing ordinary New Zealanders easy and relatively informal access to a complaints procedure, and the maintenance of broadcasting standards, our view is that, where the complainant in this case has alleged that the decision was not received, and the broadcaster cannot prove receipt, on balance, the complainant should be entitled to refer his complaint in accordance with section 8(1C).

[9]  Ordinarily, where a decision is received by the complainant, the time limit for referring the complaint to the Authority is 20 working days from when it was received. If no decision is received, the time limit is 60 working days from the broadcast.¹ Mr Ridley-Smith emailed his referral to this Authority on 27 July 2012, which was the 59th working day after the broadcast.

[10]  Accordingly, we find that we have jurisdiction to accept and consider Mr Ridley-Smith’s complaint.

[11]  We now turn to consider the substance of the complaint, with reference to the relevant broadcasting standards. We have listened to a recording of the broadcast and have read the correspondence listed in the Appendix.

Was the use of the word “harsh” inaccurate or misleading?

[12]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

[13]  RNZ considered that the focus of the story was the French presidential election, and secondarily, the opening of polls in the Greek election. Issues relevant to the Greek election such as the economy were not the focus of the story, and the use of the word “harsh” was therefore not material, it said. RNZ maintained that the statement in the item was a reasonable summary of the commentary available at the time, and was not RNZ’s or the reporter’s own words.

[14]  In our view, the use of the word “harsh” was not a “material point of fact” to which Standard 5 applied. The majority of the item was concerned with the French presidential elections, with a brief statement at the item’s conclusion that the polls had opened for the Greek parliamentary elections. “Harsh” was used here as a descriptive word; by its nature it is not a “point of fact” to which the accuracy standard applied.

[15]  In any event, the complainant’s objection to the inclusion of the word “harsh” appears to be based on an assumption that the word is pejorative, and that it was used here as an expression of judgement on the austerity measures. As it means tough, strict or stringent, our view is that it was simply describing the austerity measures – and how they may impact on citizens. We do not think it was used here to pass judgement on the measures themselves. In any case, it was unlikely that listeners would have been misled by the use of the word, given the wide media coverage of the economic situation in Greece.

[16]  We therefore find that upholding the accuracy complaint would unreasonably restrict the broadcaster’s right to freedom of expression, and we decline to uphold this part of the complaint.

Did the item discuss a controversial issue which required the presentation of significant viewpoints?

[17]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[18]  The complainant argued that, “It is not for a RNZ news journalist to decide whether the current policies are harsh or otherwise… If RNZ wanted to present such an opinion then it should attribute the opinion and, for balance, report the incumbent Government view which might be that current austerity measures are necessary to avoid bankruptcy or further collapse.”

[19]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The balance standard applies only to programmes which discuss a controversial issue of public importance. The question whether a broadcast amounts to such a programme is not straightforward and requires careful analysis in each case. The subject matter must be an issue “of public importance”, it must be “controversial”, and it must be “discussed”.³

[20]  The Authority has typically defined an issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public”.⁴ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁵ A “discussion” requires more than an issue being raised in a brief, peripheral, or humorous way, and will not apply to programmes which are unambiguously opinion-based, or focused solely on individual stories or experiences.⁶

[21]  In our view, this brief and straightforward news report, which focused predominantly on the French presidential elections, did not amount to a discussion of a controversial issue of public importance. As we said earlier, the inclusion of the word “harsh” was not a judgement of the austerity measures themselves and therefore did not in itself elevate the item to the level at which the balance standard applied and the presentation of alternative views was required. In any event, the measures being proposed in Greece were widely covered across media so listeners could reasonably be expected to have a broad understanding of the facts.

[22]  We therefore decline to uphold this part of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
19 December 2012

Appendix

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

1           Paul Ridley-Smith’s formal complaint – 6 May 2012

2          RNZ’s response to the complaint – 28 May 2012

3          Mr Ridley-Smith’s referral to the Authority – 27 July 2012

4          RNZ’s responses to the Authority – 21 September and 31 October 2012

¹See section 9 of the Broadcasting Act 1989

²Bush and Television New Zealand Ltd, Decision No. 2010-036

³For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)

⁴Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁵See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076.

⁶See Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010).