BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
Piha Rescue – reality series following lifeguards at Piha Beach – question whether the Authority has jurisdiction to accept the complaint

Findings
Mr Wallis’ original email was not a valid “formal complaint” – TVNZ responded appropriately to Mr Wallis – Authority does not have jurisdiction to accept referral on the basis that TVNZ did not respond to his “formal complaint” under section 8(1C) of the Broadcasting Act 1989

This headnote does not form part of the decision. 

Introduction

[1]  An episode of Piha Rescue, a reality series following the work of lifeguards at Piha Beach, was broadcast on 16 January 2012 on TV One.

[2]  Phil Wallis emailed TVNZ’s “Viewer Correspondence” email address on 3 February 2012 expressing concerns about “Episode 1 from series 8” of the programme. A communications executive from TVNZ responded informally to Mr Wallis by email on 8 February, suggesting that he take up his concerns with the production company. She said that if Mr Wallis remained dissatisfied following that, he could make a formal complaint about broadcasting standards. She told him where to send the complaint, where to look for the standards that had been breached, and to send it within 20 days of the programme.

[3]  This email response went into Mr Wallis’ spam email folder, until he discovered it in April 2012. Mr Wallis referred his complaint to the Authority on the basis that he had not received a response from the broadcaster to his original complaint.

[4]  The issue is whether the Authority has jurisdiction to receive and consider Mr Wallis’ complaint under section 8(1C) of the Broadcasting Act 1989, which provides that a complainant may refer a complaint to the Authority if no decision has been issued by the broadcaster within 20 working days of lodging a complaint.

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

The relevant sections of the Broadcasting Act 1989

[6]   Standard 6 of the Act outlines the broadcasters duty to receive and consider “formal complaints”. It states:

6 Formal complaints about programmes

(1)  Subject to subsection (2), it is the duty of every broadcaster –

(a)  to receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4...

(2)  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.

[7]  A formal complaint must include an allegation that the broadcaster has failed to comply with section 4, which says:

4 Responsibility of broadcasters for programme standards

(1)  Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with –

(a)  the observance of good taste and decency; and

(b)  the maintenance of law and order; and

(c)  the privacy of the individual; and

(d)  the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and

(e)  any approved code of broadcasting practice applying to the programmes.

[8]  Section 8 governs the right of complainants to refer a complaint to the Authority for review. Section 8(1C) applies where the complainant has not been notified of the broadcaster’s decision within 20 working days of making a complaint:

8 Right of complainant to refer formal complaint to Authority

(1C) A complainant may refer the complaint to the Authority if –

(a)  the complaint is about a programme other than an election programme; and

(b)  at least 20 working days have passed since the broadcaster received the complaint; and

(c)  the broadcaster has not notified the complainant of –

(i)   the decision of the broadcaster; or

(ii)  the action taken by the broadcaster...

[9]  Finally, section 9 sets the time limits for referring a complaint to the Authority:

9 Time limits

(1)  The Authority must not accept a complaint made outside the period specified for the complaint in this section.

...

(5)  A complaint under section 8(1C) must be made to the Authority in the period –

(a)  starting on the first working day after the broadcast of the programme that the complaint is about; and

(b)  ending 60 working days later.

Was Mr Wallis’ original email a valid formal complaint, such that the Authority has jurisdiction
to accept and consider his referral?

[10]  Mr Wallis said that, as far as he was concerned, he had a lodged a formal complaint in the manner advised by a TVNZ phone operator he spoke to. He maintained that he was told by that person to send his complaint to “Viewer Correspondence”, and that he was not told he needed to identify the broadcasting standards he considered to have been breached.

[11]  TVNZ argued that Mr Wallis’ email of 3 February was not a valid formal complaint, noting that:

• while it was clear Mr Wallis’ complaint was serious, it did not state he wished to make a formal complaint
• some of the complaint related to material that was broadcast and some related to material that was not broadcast
• some of the complaint related to the series in general
• Mr Wallis did not make any reference to broadcasting standards
• he complained about defamation
• TVNZ replied a few days later instructing him on how to make a formal complaint.

[12]  We have reached the decision that Mr Wallis’ email of 3 February was not a valid formal complaint, and that TVNZ acted appropriately in treating it informally, for the reasons set out below.

[13]  Section 6 of the Act requires broadcasters “to receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4”.

[14]  The Act does not provide any definition of what amounts to a “formal complaint”. However, formal complaints typically contain reference to, at the least, the date the programme aired as well as the channel on which it aired, if not also the time of broadcast, so that there is no doubt about the details of the “programme broadcast”.

[15]  With regard to Mr Wallis’ contention that he believed he had submitted a “formal complaint”, we note that Mr Wallis has previously complained about broadcasting standards.¹ While that complaint was handled by a lawyer, Mr Wallis personally filled out a formal complaint form, which included the title of the programme, the date of the broadcast, and the time of the broadcast, as well as specifying the broadcasting standards he believed had been breached. In addition, information about the formal complaints process is readily available on both TVNZ’s and the Authority’s websites.

[16]  In the present case, Mr Wallis in his email referred to “the Piha Rescue programme”, and to “episode 1 from series 8”. The email contained only an oblique reference to the programme, rather than to the “broadcast”, and in this sense could equally have applied to on-demand content on TVNZ’s website, which is not covered by the Act. We note that references to series numbers and episode numbers are attached to TVNZ’s on-demand programmes.

[17]  In addition, Mr Wallis’ email did not make any reference to a breach of broadcasting standards. While he referred to “false” and “incorrect” statements, he also referred to these as “defaming to all surf schools” and to his son. Defamation is a civil action heard in the courts and is not an issue of broadcasting standards. Mr Wallis also referred to the Piha community’s alleged dissatisfaction with the programme in general, and “the number of falsehoods in every episode”.

[18]  Finally, Mr Wallis requested “urgent attention to these matters”, including a personal apology to his son from the programme producers, and a public acknowledgement in relation to “episode 1” of a number of points, and including an additional public apology to his son.

[19]  Taking all of these factors into account, we find that Mr Wallis’ email was not a “formal complaint” in accordance with section 6(1)(a). If a complaint is submitted in this sort of loose form, there will always be a risk that it will be treated informally. We consider it was open to TVNZ’s communications executive to treat Mr Wallis’ email as an informal complaint. We agree with that assessment, and had the email been sent directly to this Authority, it would have been dealt with similarly, in accordance with the Authority’s usual procedures, with an email reply requesting that Mr Wallis provided the necessary details before it would be treated formally.

[20]  The communications executive’s actions were appropriate in that she suggested the complainant discuss his concerns with the production company (especially given he had requested an apology from them in the email), and then instructed him on how to make a formal complaint if he remained dissatisfied. While the timeframe quoted was incorrect (20 days rather than 20 working days), had Mr Wallis opened the email, he would have been alerted to the fact that his complaint had been treated informally, and could have resubmitted his complaint with the required information. It was through no fault of TVNZ’s that Mr Wallis did not read that email, and did not follow up his email until more than two months later.

Conclusion

[21]  Having found that Mr Wallis’ email of 3 February was not a valid formal complaint to which the broadcaster should have responded with a formal decision, we conclude that we do not have jurisdiction to accept the complaint under section 8(1C) of the Act on the basis that TVNZ failed to respond as required.

For the above reasons the Authority finds that it does not have jurisdiction to accept Mr Wallis’ complaint about the broadcast of Piha Rescue on 16 January 2012.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                 Phil Wallis’ email to TVNZ Viewer Correspondence – 3 February 2012

2                 Viewer Correspondence emails to Mr Wallis – 8 February 2012

3                 Mr Wallis’ referral to the Authority – 11 April 2012

4                 Email from Mr Wallis to TVNZ – 13 April 2012

5                 TVNZ’s email response to Mr Wallis – 18 April 2012

6                 Email from Mr Wallis to the Authority – 20 April 2012

7                 Email from Mr Wallis to TVNZ – 27 April 2012

8                 TVNZ’s response to Mr Wallis – 27 April 2012

9                 TVNZ’s submissions on whether the Authority should accept the complaint – 7 May 2012

10              Further information from Mr Wallis – 14 May 2012

¹See Wallis and TVWorks Ltd, Decision No. 2011-073