Singh and Television New Zealand Ltd - ID2019-050 (30 September 2019)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- Bherminder Singh
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority received a complaint about a promo for a scheduled programme Seven Sharp which was viewed on TVNZ’s Facebook page. The Authority declined to determine the complaint under s11(b) of the Broadcasting Act 1989. The Authority acknowledged that it raised complex issues of jurisdiction arising from the online environment, which had not yet been determined by the Authority. Taking into account its assessment of the substance of the complaint, which it considered was unlikely to result in a finding of a breach of standards, the Authority declined to determine the complaint.
Declined to determine: Violence, Law and Order, Discrimination and Denigration
 A programme promotion (promo) for Seven Sharp, featured an interview with Graham Bell (former host of Police Ten 7). The promo featured multiple programme clips edited together so that Mr Bell appeared to say, ‘We’re looking for your help to find gutless goons, morons, scumbags, bozos, a man with a gun, a false beard and a turban.’
 The promo was viewed by the complainant on Facebook, via TVNZ’s Facebook page.
 Bherminder Singh complained that the promo breached the violence, law and order and discrimination and denigration standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:
- The promo ‘makes reference to people who wear [turbans] as being bozzo’s [sic]’.
- The interview gives social legitimacy to the victimisation of Sikhs with turbans (who are already subject to victimisation by people who stereotype Sikhs as terrorists).
 TVNZ responded:
- A formal complaint cannot be accepted about a promo screened on social media because it does not constitute ‘broadcasting’ within the meaning of the Broadcasting Act 1989.
- Mr Bell was ‘known for his bombastic way of describing wanted people.’
- ‘In the promo he is talking about a number of different wanted people in different scenes cut together….The sequence is not speaking about one person or making any statement about the Sikh community, the comment is meant to show that the particular wanted person being discussed is wearing a disguise, “a false beard and a turban”.’
 In considering this complaint, we have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Outcome: Declined to Determine
 Section 11(b) of the Broadcasting Act 1989 authorises this Authority to decline to determine a complaint if it considers that, in all the circumstances of the complaint, it should not be determined by the Authority.
 In this case, the Authority considers it appropriate to exercise its section 11(b) discretion on the following grounds:
a) If the promo had been viewed on free-to-air television (where the programme promoted was scheduled to air) the Authority would have clearly had jurisdiction in this matter. However, as it was viewed on Facebook, the complaint raises some complex issues of jurisdiction, specifically:
- whether the transmission of content via an online social media platform falls within the definition of ‘broadcasting’ in the Broadcasting Act 1989
- if so, whether TVNZ or Facebook (or both) is the ‘broadcaster’, and
- whether audio-visual content which is auto-played to the audience of the platform pursuant to the underlying algorithm of the platform is on-demand content or not.
b) The Authority is currently undertaking a review of its jurisdiction in relation to such matters but has not yet determined its position. We would not wish to either prematurely offer a determination on such matters or unduly delay resolution of Mr Singh’s complaint (by deferring a decision until completion of our review). We are also cognisant that we must prudently use our time and resources, whilst also dealing with complaints in a time-efficient way.
c) Given the nature of this complaint, the outcome for the complainant on any approach would be no different. We consider the complainant has misheard or misunderstood the broadcast.1 We do not consider the promo can be reasonably interpreted as referring to people wearing turbans as ‘bozos’ or to be in any way critical of people wearing turbans. We agree with TVNZ’s characterisation of the broadcast as describing ‘a number of different wanted people’ including one ‘wearing a false beard and a turban’ as a disguise. It might be interpreted as critical of the person who disguised themselves with a false beard and turban but that would not result in the harms alleged by the complainant.
 For these reasons, we consider that it is appropriate for us to decline to determine this complaint. We do however consider that the issues of interpretation of the 1989 Act under which we operate are important, given the new ways in which content and promos are being distributed to New Zealanders. We are continuing with our review, as expeditiously as we can.
 We acknowledge that this is a unique case. The approach we have taken is intended to be pragmatic whilst also providing the complainant with our view on the substance of his complaint. We have taken this approach in the spirit of section 10 of the Broadcasting Act 1989 which encourages our consideration of complaints with limited formality.
For the above reasons the Authority declines to determine the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
30 September 2019
The correspondence listed below was received and considered by the Authority:
1 Bherminder Singh’s complaint to TVNZ – 23 June 2019
2 TVNZ’s response – 24 June 2019
3 Mr Singh’s referral to the Authority – 30 June 2019
4 TVNZ’s submissions on jurisdiction – 19 July 2019
1 Guidance: BSA Power to Decline to Determine a Complaint, Broadcasting Standards in New Zealand Codebook, page 65