BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority found it had jurisdiction to determine a complaint about broadcasts on RNZ National, as the complainant’s original complaint to the broadcaster constituted a formal complaint under the Broadcasting Act 1989. While the broadcaster was of the view the complaint was not lodged under broadcasting standards, the Authority found it expressly or implicitly identified broadcasting standards allegedly breached by the broadcasts.

Accepted jurisdiction

The broadcast

[1]  On 19 and 20 April 2022, RNZ published stories on its website, and broadcast bulletins on RNZ National, concerning the government’s apparent delay in ending the Managed Isolation and Quarantine (MIQ) system despite public health advice noting that a changed risk assessment meant MIQ would no longer be justified.

Complaint and broadcaster’s response

[2]  On 20 April 2022, Hanna Wilberg lodged a complaint with RNZ concerning its reporting on this subject. Wilberg stated:

This complaint relates to the various news items yesterday and today (19 and 20 April), on air and on your website, relating to the delay in ending MIQ after public health advice dated 12 November (online stories by Katie Todd and Tessa Guest); on air in the news bulletins and Morning Report.

The consistent story line has been that there was a 3 ½ month delay in following that advice, resulting in 40,000 kiwis being wrongly subjected to MIQ.

This [is] not accurate, and certainly not balanced.

What really happened is:

- The memo (which I have seen in full) recommended a carefully managed and staged transition away from MIQ.

- Proper action was taken on that memo, including taking further advice and then devising a plan, which was to open up from mid January.

- Then circumstances changed with the arrival of Omicron. Public health advice changed in response, and government accepted that updated advice, which meant delaying the opening up.

All of this is not only a matter of public record, but was clearly explained by the Deputy PM on Morning Report this morning (20 April). Yet stories continued to be published even after that, claiming that the delay was against public health advice. That is just not accurate.

The lack of clear reference in all the reporting to the fact that the arrival of Omicron was a relevant change in circumstances after the date of the memo represents a clear lack of balance, and probably inaccuracy.

[3]  The complaint was lodged via the RNZ website in a form intended for complaints about online written content. For the standards/principles breached, the complainant cited ‘Accuracy, Fairness and Balance’ (a Media Council principle).

[4]  RNZ responded to the complainant on 2 June 2022. It considered her complaint in relation to five online articles on the subject of concern and did not uphold her complaint. It referred her to the Media Council if she wished to have her complaint reviewed.

Referral to the Authority – jurisdiction issue

[5]  Upon referral of this complaint to the Authority, RNZ advised it did not consider the Authority had jurisdiction to accept the complaint, as the complainant did not lodge her formal complaint in the first instance under broadcasting standards. It advised:

The complainant lodged her complaint with RNZ under the Media Council’s principles and primarily addressed written articles and audio lodged on our website. She clearly quoted Media Council principles which she thought this content had breached.

[6]  RNZ advised that to make a complaint on its website, a complainant must select whether they are complaining about something they heard (audio) or something they read (text). Based on the complainant’s answer, the website will take them to the relevant form – either for broadcasting standards matters or Media Council matters.

[7]  The complainant filed her formal complaint in the form for Media Council matters. She ticked ‘Principle 1: Accuracy, Fairness and Balance’ as being breached, which is a Media Council principle (while in the broadcasting standards form, the standards ‘accuracy,’ ‘fairness’ and ‘balance’ are listed separately).

[8]  The complainant, on the other hand, considered the Authority should accept jurisdiction of her complaint for the following reasons:

• Her original formal complaint to RNZ expressly referred to content ‘on air and on your website’ and ‘on air in the news bulletins and Morning Report.’
• She references the standards of accuracy and balance, which are also broadcasting standards.
• ‘I would also note that it seems to me already unnecessarily confusing and burdensome to have to complain to two separate organisations for the different parts of RNZ's publications. I did have slightly different complaints about the news bulletins and the online stories respectively, so it was important to complain about both. Having gone to that trouble, I would have hoped that RNZ would not then put further obstacles in the way of getting those complaints considered.’

Outcome: Accepted jurisdiction

[9]  We have read the correspondence listed in the Appendix.

[10]  When determining whether a complaint falls within the Authority’s jurisdiction we look at whether it meets the criteria set out under section 6 of the Broadcasting Act 1989 (the Act).

[11]  Amongst other requirements, the complaint must constitute an allegation that the broadcaster has failed to comply with one or more of the broadcasting standards contained in the Act or the relevant code of practice.¹ Section 6 does not require that a standard be expressly referred to in the complaint. It is enough that the complaint clearly implies what standard is being relied on. Another key requirement is that the complaint must be about a programme, and the allegations it makes must be in respect of that programme.²

[12]  In this case, we find the complaint did constitute a ‘formal complaint’ under section 6 of the Act for the following reasons:

• While the complainant raised her concerns via RNZ’s complaint form for online content, she was clear her complaint related to content broadcast ‘on air’ (citing news bulletins and Morning Report) as well as content published online.
• The complaint specifies the ‘programmes’ of concern – news bulletins on 19 and 20 April reporting on the story at issue, and the 20 April broadcast of Morning Report (however her referral to the Authority is only in relation to the news bulletins).
• While the complainant ticked ‘Principle 1: Accuracy, Fairness and Balance’ as being breached, which is a Media Council principle, her complaint was clear that her concerns related to matters of accuracy and balance (‘This [is] not accurate, and certainly not balanced,’ ‘…represents a clear lack of balance, and probably inaccuracy.’) In our view this is sufficient to raise the accuracy and balance broadcasting standards (if not expressly then at least implicitly).
• The complaints process is intended to be an accessible process, not impacted by undue formality.³
• The complaint was referred to the Authority within the time frame stipulated under the Act.⁴

[13]  As a result, we consider the Authority does have jurisdiction to consider this complaint referral.

For the above reasons the Authority finds it has jurisdiction to accept the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
8 November 2022   

Appendix

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

1  Hanna Wilberg’s complaint to RNZ – 20 April 2022

2  RNZ’s decision on complaint – 12 June 2022

3  Wilberg’s referral to the Authority – 30 June 2022

4  RNZ’s submissions on jurisdiction – 2 August 2022

5  Wilberg’s submissions on jurisdiction – 15 August 2022

6  RNZ’s further submissions on jurisdiction – 7 September 2022

¹ Broadcasting Act 1989, s 6(1)(a)
² As above
³ Broadcasting Act 1989, s 10(2); see also TVWorks Limited v Broadcasting Standards Authority HC Wellington CIV 2010-485-2161, 6 May 2011 at [17]
⁴ Broadcasting Act 1989, s 9