Please note: this practice note was written under the previous codes of broadcasting practice, which apply to programmes broadcast before 1 April 2016. While this practice note is still relevant to informing complainants and broadcasters about the approach the Authority is likely to take under the new codes, in the case of any inconsistency, the new codes will prevail. You can view the new codes here.
Section 11 of the Broadcasting Act 1989 authorises the BSA to decline to determine a complaint which has been referred to it if it considers:
The purpose of this Practice Note is to provide guidance to complainants and broadcasters about the usual way section 11 is interpreted and applied by the BSA.
In the BSA's view, the policy behind section 11 is that the time and resources of the Authority, which are, in the end, sustained by the people of New Zealand, should not be wasted in having to deal with matters which objectively have no importance.
The complaints system under the Broadcasting Act is an open door system. Broadcasters are required to receive and consider all complaints that meet the relevant criteria for being a valid formal complaint. The BSA usually expects broadcasters to deal with complaints they receive in a considered and appropriately comprehensive way. It does not expect a comprehensive analysis of a complaint when, on its face, it is frivolous or trivial. The BSA is conscious that there is an economic cost in dealing with complaints and it does not wish to see resources wasted on complaints that have no foundation whatsoever.
All complaints which are then referred by a complainant to the BSA need to be considered by the BSA board but with the qualification that if they are considered to come within section 11 they need not be determined.
The following summaries and examples demonstrate the BSA's approach in decisions declining to determine a complaint, released between 2007 and 2013 (cited by name and decision number; all decisions are available on the BSA's website, www.bsa.govt.nz).
Section 11(a): Frivolous, vexatious or trivial
The BSA will usually apply the ordinary meanings of the words frivolous, vexatious or trivial. Obviously, there is some overlap in the meanings of these expressions.
Frivolous means not serious or sensible, or even silly. A frivolous complaint is one which the BSA considers to be unworthy of being treated in the same way in which it would treat a complaint which is not frivolous or which has some merit.
A trivial complaint is one which is of little or no importance and is at such a level not to justify it being treated as a serious complaint.
Examples of complaints that the BSA has declined to determine on the basis they were frivolous or trivial include:
Trivial accuracy complaints
Complaints about low-level language
Other frivolous/trivial matters
A vexatious complaint is one which has been instituted without sufficient justifying grounds. In some cases a person putting forward a vexatious complaint may do so with the intention of causing annoyance, but such an intention may not be necessary in order for a complaint to be considered vexatious.
The BSA is usually reluctant to label a complainant vexatious, however examples of complaints that the BSA considered to be vexatious include:
Section 11(b): In all the circumstances, the complaint should not be determined
Additionally, in terms of section 11, there may be other good reasons for the BSA to decline to determine a complaint. Examples include:
o Complaints that programmes about the Treaty of Waitangi and New Zealand flags omitted
certain facts (2010-009; 2011-055; 2011-087; 2011-170)
o Complaint that news programmes failed to report certain stories (2010-086)
o Complaint that an interview about Olympic drug cheating referred to Jamaica but did not
discuss New Zealand's alleged cheating history (2012-109)
o Complaint that a news item reported differently on an event than a BBC item about the
same topic (2012-117)
BSA Retains Ultimate Discretion
This practice note is intended to provide a guide only, and does not bind the BSA in determining the outcome of any future complaint. We retain overall discretion and each complaint is determined on its particular facts.
Issued by the Broadcasting Standards Authority pursuant to s21(d) of the Broadcasting Act 1989
P J Radich