BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The complainant made a formal complaint about a programme broadcast on Radio Virsa. He also sent a second ‘updated complaint’ which referred to repeat broadcasts of the programme the following day. Radio Virsa declined to accept and consider the complaints on the basis the initial complaint was made outside of the 20-working-day timeframe for making a formal complaint, and the ‘updated complaint’ did not sufficiently convey that it related to repeat broadcasts the following day. The Authority found that a valid formal complaint was not made. Radio Virsa was therefore not required to accept and consider either complaint, and the Authority does not have jurisdiction to now accept and consider the matter.

Declined Jurisdiction

Introduction

[1]  At 1.31am on 28 July 2016, the complainant, Gurinder Singh Shadipur, lodged a formal complaint via email with Radio Virsa. The complaint began:

I wish to lodge a complaint regarding Sikh Patshahi programme, broadcast on June 29, 2016.

[2]  At 3.02pm on 28 July 2016, Mr Shadipur emailed to Radio Virsa an updated complaint (the ‘updated complaint’) which referred to repeat broadcasts of the programme on 30 June 2016. The relevant sentences of the complaint were as follows:

I wish to lodge a complaint regarding Sikh Patshahi programme, broadcast live on June 29, 2016.
...
As reparation I demand the following live apology from all three co-hosts of the programme broadcast on June 29, 2016 with repeat broadcasts on June 30th at 3am, 10am and 3pm. ...

[3]  On 16 August 2016, Radio Virsa responded to Mr Shadipur as follows:

Radio Virsa received two emails from you on 28 July 2016. I refer to the second, because you have described it as ‘updated’. It purports to be a formal complaint about ‘a programme broadcast live on June 29, 2016.’ However, this is outside the timeframe for a complaint about a programme broadcast on 28 June 2016, which expired at midnight on 27 July 2016. I note that this second email mentions rebroadcasts but it gives no indication that these are the subject of complaint. I also note that it is too late to complain about them now.

Accordingly, Radio Virsa declines to consider your complaint.

[4]  Mr Shadipur has referred the matter to this Authority on the basis that he was dissatisfied with Radio Virsa’s decision to decline to accept and consider either his initial complaint or the ‘updated complaint’.

[5]  The issue for the Authority is whether Mr Shadipur lodged a valid formal complaint under the Broadcasting Act which ought to have been accepted and formally considered by the broadcaster.

[6]  The members of the Authority have read the correspondence listed in the Appendix.

Did Mr Shadipur lodge a valid formal complaint?

[7]  Mr Shadipur’s main submission is that, even if his email of 1.31am on 28 July 2016 was outside the timeframe to complain about the live broadcast on 29 June 2016, the ‘updated complaint’ sent at 3.02pm on 28 July 2016 also related to the repeat broadcasts on 30 June 2016, therefore the second email was received by Radio Virsa within the 20-working-day timeframe to complain about the repeat broadcasts (which only expired at midnight on 28 July 2016).

[8]  Section 6 of the Broadcasting Act 1989 outlines broadcasters’ obligation to receive and consider formal complaints about broadcasts. Subsection (2) of that section states:

Nothing in this section requires a broadcaster to receive and consider any complaint that is not lodged in writing with the broadcaster within 20 working days after the date on which the programme to which the complaint relates was broadcast by the broadcaster. [our emphasis]

[9]  The definition of ‘working day’ in the Act does not refer to times.¹ The Authority has previously held that the ordinary meaning of ‘day’ is midnight to midnight.² On this basis, we find that Mr Shadipur’s email complaint sent at 1.31am on 28 July 2016 was lodged outside of the 20-working-day timeframe in which a complaint could be made. Mr Shadipur’s complaint about the 29 June 2016 broadcast needed to be lodged with the broadcaster no later than midnight on 27 July 2016. Radio Virsa was therefore not required to accept this complaint.

[10]  In relation to the ‘updated complaint’, we note that, for a complainant’s correspondence to be considered a valid formal complaint under the Broadcasting Act, sufficient details about the broadcast need to be provided by the complainant, including the date and time of the broadcast, its title, the channel/station on which it aired, and the grounds for complaint, including nominated standards in the relevant code of broadcasting practice. Most of this information was included in the ‘updated complaint’. However, the only broadcast clearly referred to as being the subject of the ‘updated complaint’ was the 29 June broadcast. In the updated complaint Mr Shadipur said: ‘I wish to lodge a complaint regarding Sikh Patshahi programme, broadcast live on June 29, 2016.’

[11]  The ‘updated complaint’ made reference to the repeat broadcasts on 30 June, but only in the context of the complainant’s request for an apology from the hosts of the 29 June broadcast (which was repeated on 30 June): ‘As reparation I demand the following live apology from all three co-hosts of the programme broadcast on June 29, 2016 with repeat broadcasts on June 30th at 3am, 10am and 3pm...’ The ‘updated complaint’ did not in our view specify the 30 June repeat broadcasts as being the subject of the complaint.

[12]  In these circumstances, Radio Virsa was also not required to accept and consider the ‘updated complaint’. This means that the Authority does not have jurisdiction to now accept or consider Mr Shadipur’s complaints.

[13]  We understand that Mr Shadipur will be disappointed with this outcome, but the legislation is clear about the timeframes and criteria that apply to the complaints process. Accordingly, we are required to apply it strictly, as we must do in this case.

For the above reasons the Authority declines jurisdiction to accept the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 October 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Gurinder Singh Shadipur’s complaint to Radio Virsa – 28 July 2016
2      Mr Shadipur’s ‘updated complaint’ to Radio Virsa – 28 July 2016
3      Radio Virsa’s responses to Mr Shadipur and correspondence between the parties – 16 and 17 August 2016
4      Mr Shadipur’s referral to the Authority – 6 September 2016
5      Radio Virsa’s response to the Authority – 14 September 2016

1 Section 2, Broadcasting Act 1989

² See Gough and Television New Zealand Ltd, ID 2012-079 at [15]