BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
Campbell Live – items reported on controversial comments made by the chief executive of the EMA that female workers are less productive because they take sick leave when they are menstruating – interviewed chief executive – panel discussed comments – question of whether Authority has jurisdiction to accept a referral of the complaint

Findings
Authority has jurisdiction to accept the referral

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

[1]  On 23 and 24 June 2011 there were broadcasts of the programme Campbell Live concerning the complainant, Alisdair Thompson. On 20 July 2011 within the period for making complaints, the complainants lodged complaints with the broadcaster. Their complaints were conveyed by email and also by a couriered letter. On 21 July 2011, the broadcaster notified the complainants by email that their complaints had been received. Subsequently the broadcaster considered the complaints and reached the decision that they not be upheld.

[2]  Section 7 of the Broadcasting Act 1989 requires that when a broadcaster finds a complaint not to be justified in whole or in part, the broadcaster shall notify the complainant in writing of the decision. The complainant then has an opportunity to refer the complaint to this Authority but that opportunity must be taken with 20 working days of having received the decision. The broadcaster says that on 10 August 2011 it notified the complainants by email that their complaints had not been upheld. These complaints were matters of importance to the complainants and they had been waiting for a response from the broadcaster. Thinking that the broadcaster had not responded within the period within which it was required to respond, the complainants, through their solicitors, referred their complaints to this Authority pursuant to section 8(1C) of the Act.

[3]  The complainants were unaware that a decision had been made by the broadcaster and this is why they did not refer their complaints to this Authority within the period allowed. They did refer their complaints to this Authority, but they were out of time if in fact the complainants had been notified of the broadcaster’s decision. The broadcaster has taken the point that it had notified the complainants of its decision and therefore this Authority does not have the jurisdiction to consider their complaints.

[4]  The complainants submitted that “notification” or to “notify” must, by definition, necessarily involve receipt. To support their argument, Mr and Mrs Thompson referred to a divergence in language in the Act where the words “notify” and “receive” are used interchangeably. They also drew attention to section 5 of the Act, which requires broadcasters to have proper procedures for dealing with complaints, and the duty of the Authority to ensure that broadcasters discharge their responsibilities under the Act.

[5]  The question here is therefore whether the complainants have been notified as required by the Act.

[6]  Issues of notification and receipt can raise a number of vexed questions arising out of different circumstances including:

• What is involved in notification?
• Is notification effected when the notifying party dispatches the information even if the information is not received?
• Is the notifying party required to prove that the receiving party actually received the information?
• Is the onus on the receiving party to demonstrate that the information was not received once the notifying party has demonstrated that the information has been dispatched?
• Does it make a difference whether the receiving party could have received the information but neglected to receive it?

[7]  In other jurisdictions there are often rules which allow questions like these to be answered. Here the legislation does not allow for ready and clear answers. We note that the Act uses both the words “notify” and “receive” in provisions relating to decisions on formal complaints. For example, while section 7 states that broadcasters must “notify” complainants of the decision or action taken, under section 9(4)(a) the time limit for referring complaints to the Authority starts the day after the day on which the complainant “received notice” of the broadcaster’s decision or action.

[8]  In the present case we accept that the information was not “received” by the complainants. There is no suggestion of lack of diligence on the part of the complainants. It is possible that the information was sent by email and was lost before it reached the receiving information system of the complainants.

[9]  In these circumstances we think that the fair thing to do is to allow the complainants to proceed and we rule accordingly. We reach this conclusion for the following reasons:

• The legislation does not give a ready answer in circumstances such as the present.
• This is the first time the issue has come before the Authority.
• We accept the information was not received by the complainants.
• The matter is of importance to them.
• Email correspondence is not an infallible form of communication.

[10]  We nevertheless acknowledge that the lack of clarity in this area needs to be addressed, and we will as soon as practicable undertake consultation with a view to issuing guidance for the future.

For the above reasons the Authority finds that it has jurisdiction to accept Mr and Mrs Thompson’s referral of their complaint about Campbell Live items broadcast by TVWorks Ltd on TV3 on 23 and 24 June 2011. 

Signed for and on behalf of the Authority

Peter Radich
Chair
7 November 2011