BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

  The Supreme Sikh Council, its individual members and the Supreme Sikh Society of New Zealand submitted a complaint to Radio Virsa alleging that a range of broadcasts were offensive and defamatory, but were not able to give precise times, dates or comments. The complainants requested recordings of the broadcasts. The question for the Authority was whether this amounted to a valid formal complaint, and therefore whether the Authority had jurisdiction to order Radio Virsa to provide the recordings. The Authority found that a valid formal complaint had not been made due to lack of sufficient particulars, and therefore it did not have the power to order Radio Virsa to provide the recordings.   Declined Jurisdiction   

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Introduction 

[1]  The situation before us requires an interlocutory decision to be made by this Authority in respect of the complaint by the Supreme Sikh Council of New Zealand and the Supreme Sikh Society of New Zealand against Radio Virsa. In order to put this decision into its proper context we need to give some background.  

Legislative background

[2]  The Broadcasting Act 1989 establishes a system whereby those persons who assert that broadcasting standards have been breached by a broadcaster may complain to that broadcaster. The broadcaster has a duty to deal with the complaint.¹  Any complainant who is dissatisfied with the decision of the broadcaster or the action taken by the broadcaster in relation to the complaint may then refer the formal complaint to this Authority which acts in an appellate role.²  There are and there need to be time limits. In relation to an initial complaint to a broadcaster it is required to be 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.³  In relation to a referral to this Authority, again, it must be made within 20 working days of the complainant having received notice of the broadcaster’s decision or action taken.⁴    [3]  The practice of this Authority and the practice of broadcasters generally in dealing with the requirements of a complaint have been that some reasonable specificity is required. That is consistent with the general approach that is taken in jurisdictions where complaints are to be considered. It is also consistent with the general approach of the courts where one person makes assertions against another. As a matter of fairness and efficiency if an assertion of wrongdoing is made there should be some details given to enable the person against whom the assertion has been made to consider the assertion and give a proper response.  

The issue 

[4]  Differences have arisen within the Sikh community in Auckland. These differences appear to have come about through what are, no doubt, sincerely but firmly held views of Sikh doctrine and its application to life in New Zealand. Radio Virsa is an Auckland radio station which is operated by members of the Sikh community and which broadcasts in the Punjabi language. The Supreme Sikh Council and the Supreme Sikh Society are associations which represent some Sikhs in New Zealand but there are other representative bodies as well. The differences within the Sikh community have become known to us through the present complaint and a previous complaint.   [5]  The matter before us goes back to a letter sent by solicitors of Simpson Grierson in Auckland to Radio Virsa. The letter was sent on behalf of the Supreme Sikh Council and its individual members and the Supreme Sikh Society of New Zealand. The letter is dated 16 June 2015 and because of its importance we set it out in full as follows:

We have been consulted by the Supreme Sikh Council of New Zealand (Council) and its individual members, and the Supreme Sikh Society of New Zealand (Society) with regard to various broadcasts by you between 14 May and 3 June 2015, and in particular those on 14, 19, 20, 21, 23, 24, 31 May and 3 June 2015.  Our clients request the transcripts of all broadcasts referring to the Council (and its members) and the Society in the period of 14 May and 3 June 2015, and in particular those on 14, 19, 20, 21, 23, 24, 31 May and 3 June 2015. We have attached the Recording Request Form. Please let us have the transcripts as a matter of urgency.  We are instructed that during these broadcasts offensive and defamatory comments have been made about the Council, the Council’s individual members, and the Society. This has included suggestions that the Council is corrupt and ridiculing the wives and children of the individual Council members.  As we do not have transcripts of the broadcasts in question we cannot give precise details as to the exact date and time of the broadcast, nor the exact words that were broadcast.  Please treat this letter as a formal complaint that the broadcasts in question, insofar as they refer to the Council, the Council’s individual members and/or the Society, are in breach of the Radio Code of Broadcasting Practice in the following respects.  1. Standard 1 – the broadcasts have not observed standards of good taste and decency insofar as they related to our client and their families;  2. Standard 2 – the offensive and defamatory comments were not consistent with the maintenance of law and order; 3. Standard 3 – the broadcasts were not consistent with the privacy of the Council members and their families;  4. Standard 5 – what has been broadcast has not  been accurate in relation to material points of fact; and has been misleading; 5. Standard 6 – the broadcast has not dealt with the Council or its members and their families fairly;  6. Standard 7 – the broadcasts have encouraged discrimination of and denigration of the Council, its members and their families;  7. Standard 8 – overall the broadcasts have breached the standard of responsible programming, in that they have caused undue distress.  This letter is a relatively brief one, being sent to preserve time limits under the Broadcasting Act 1989, and without the benefit of the transcripts of the broadcasts. As a result our clients reserves [sic] all rights in connection with the broadcasts and their complaints, and with regard to defamatory material.  We now await your immediate response. 

[6]  It can be seen that the letter of 16 June 2015:  

• cast widely at various broadcasts made between 14 May and 3 June 2015 
• requested transcripts of the broadcasts 
• asserted that the broadcasts were offensive and defamatory while conceding that precise details were not able to be given 
• asserted that the broadcasts were in breach of standards 1, 2, 3, 5, 6, 7 and 8.

[7]  The response of Radio Virsa was in the form of an email letter on 19 June 2015. Basically, Radio Virsa responded that the complaint was not a valid complaint on the basis that there were insufficient particulars. Radio Virsa invited further particulars.   [8]  Correspondence between Radio Virsa and Simpson Grierson proceeded for a period. The correspondence was courteous correspondence but by the end of July 2015 it was apparent that an impasse had been reached. Then on 27 July 2015, Steven Price, counsel who had been engaged by Radio Virsa, took up the correspondence with Simpson Grierson. Mr Price advised Simpson Grierson that in his opinion Radio Virsa was not under any obligation to provide transcripts or recordings to the Supreme Sikh Council as requested, that the complaint was not a valid formal complaint and that accordingly Radio Virsa was not going to do anything more.  

Referral to this Authority

[9]  On 25 August 2015 Simpson Grierson on behalf of the Supreme Sikh Council and others referred the complaints to this Authority. A narrative of events was set out and it was stated that the referral was pursuant to section 8(1B) of the Act on the grounds that the complainants were dissatisfied with the decision reached by Radio Virsa and the action taken by Radio Virsa in respect of the complaint. The complainants sought an order directing the publication of an apology and an acknowledgment of wrongdoing and payment of costs.   [10]  Mr Price responded on 1 September 2015 with a comprehensive submission the essence of which was that there was no valid complaint, there was no obligation on Radio Virsa to provide recordings or transcripts and that the remedies sought by the complainants were unavailable to them.  

Subsequent events

[11]  Following the receipt of the referral and the opposition to the referral a telephone conference took place between the representatives of the parties and the Chair of this Authority. The purpose was to explore the positions of the parties and see whether any common ground could be found. On 8 September 2015 a memorandum was issued by the Chair of this Authority making some suggestions for the consideration of the parties. One of the suggestions was that any request for recordings needed to be reasonably specific.   [12]  On 29 September 2015 Simpson Grierson responded with more specific assertions. Particular broadcasting times were identified. It was alleged that in the broadcasts of 20 May 2015 some insulting and culturally offensive comments were made. It was alleged that in the broadcast of 21 May 2015 suggestions of financial impropriety within the Supreme Sikh Society were made. The particulars of allegedly unacceptable broadcasts given on 29 September 2015 were entirely new. They were different from some limited particulars which had been given previously.    [13]  The Simpson Grierson letter of 29 September 2015 was responded to in detail by Mr Price in a letter of 6 October 2015. Basically, his submission was that there was no effective original complaint and that the subsequent bringing of greater focus to the original complaint with further particulars could not cure the original deficiency. It was submitted that when on 29 September 2015 particulars were given of breaches alleged to have occurred in May 2015, these particulars amounted to a complaint for the first time and that this complaint was well out of time.  

Discussion

[14]  We find it necessary to restate what we believe are the essentials of a valid formal complaint. A valid complaint must:  

• be made within the relevant time period 
• be in writing
• refer to a specific broadcast or broadcasts with sufficient detail to enable them to be readily identified
• specify which standards are said to have been breached 
• give particulars of the elements of the broadcasts that are asserted to have breached the standard(s) identified. 

[15]  We have carefully considered all of the submissions made on behalf of the complainants. We are unable to reach the conclusion that the original complaint of 16 June 2015 was sufficiently specific to amount to a valid formal complaint.   [16]  We have had regard to the submission of the complainants that Radio Virsa breached its obligations arising out of section 5 of the Act. The particular obligations said to have been breached are those which flow from the following principle expressed in section 5:

(a) Broadcasters have a responsibility to deal with complaints relating to broadcasts and must establish a proper procedure to deal with them. 

[17]  The complainants submit that in fulfilment of its obligations arising under this principle, Radio Virsa ought to have been more helpful in providing recordings or transcripts when it received the requests of 16 June 2015.   [18]  We do not think that the principles in section 5 can have the effect of modifying the fundamental requirements for a formal complaint. We are accordingly of the view that there has not been an effective formal complaint here. Had the detail which was contained in the letter of 29 September 2015 been included in the original letter of complaint the position may well have been different.  

Decision

[19]  We are accordingly obliged to determine that the letter of 16 June 2015 did not amount to a formal complaint and that nothing that happened subsequently cured that basic deficiency. We therefore have no jurisdiction to accept the subsequent referral to this Authority and no power to order Radio Virsa to provide recordings.⁵    Signed for and on behalf of the Authority         Peter Radich Chair 10 November 2015  

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:   1      Supreme Sikh Council & Others’ complaint to Radio Virsa – 16 June 2015  2      Radio Virsa’s response to Sikh Council requesting further particulars – 19 June 2015 3      Sikh Council’s further request for recordings – 29 June 2015 4      Sikh Council’s further request for recordings – 7 July 2015 5      Radio Virsa’s response to Sikh Council – 8 July 2015 6      Sikh Council’s further request for recordings – 8 July 2015 7      Radio Virsa’s response to Sikh Council – 8 July 2015 8      Sikh Council’s further request for recordings – 9 July 2015 9      Radio Virsa’s response to Sikh Council – 9 July 2015 10    Sikh Council’s further request for recordings – 9 July 2015 11    Sikh Council’s further request for recordings – 13 July 2015 12    Radio Virsa’s response to Sikh Council notifying that a formal complaint had not been made – 27 July 2015 13    Purported referral from Sikh Council to Authority – 25 August 2015 14    Radio Virsa’s response to purported referral – 1 September 2015 15    Chair’s Memo to parties – 8 September 2015 16    Response to the Memo from Sikh Council – 29 September 2015 17    Radio Virsa’s response to Sikh Council – 6 October 2015 18    Further comment from Sikh Council – 8 October 2015 19    Final comment from Radio Virsa – 9 October 2015 20    Final comment from Sikh Council – 12 October 2015  

 Section 6 ² Section 8 ³ Section 6(2) ⁴ Section 9 – these are general time limits and are subject to exceptions ⁵ Sections 6 and 8 of the Broadcasting Act 1989