15 most recent decisions

Thompson and TVWorks Ltd - ID2011-104

Mon, 07 Nov 2011 00:00:00 +1300

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

Hastie and TVWorks Ltd - ID2011-102

Mon, 07 Nov 2011 00:00:00 +1300

Complaint under section 8(1C) of the Broadcasting Act 1989
American Pie Presents: Beta House – movie contained nudity and sex scenes – 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 24 May 2011 a movie called American Pie Presents: Beta House was broadcast on FOUR. The same day, and within the period for making complaints, the complainant lodged a complaint with the broadcaster. On 26 May 2011, the broadcaster sent the complainant a decision by email in which it declined to uphold the complaint.

[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 26 May 2011 it notified the complainant by email that his complaint had not been upheld. Thinking that the broadcaster had not responded within the period within which it was required to respond, the complainant referred his complaint to this Authority pursuant to section 8(1C) of the Act.

[3] The complainant says that he did not receive the decision of the broadcaster and so he phoned the Authority on 11 July 2011 saying that he had not received a response, either from the Authority or TVWorks. The Authority responded to the complainant and informed him of the relevant time-frames, including his right to refer the complaint within 60 days of the broadcast if he did not receive a response from the broadcaster. On this basis, the complainant referred his complaint to this Authority on 4 August 2011. The broadcaster has taken the point that it had notified the complainant of its decision and therefore this Authority does not have the jurisdiction to consider his complaint because it was referred outside the time period allowed by the Act.

[4] The complainant submitted that the Authority should accept his referral in the absence of “proof of delivery” or his acknowledgement of receipt. He argued that emails get lost and so proof of delivery is important.

[5] The question here is therefore whether the complainant has 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?

[8] In the present case, the complainant says that the information was not “received” by him. It is possible that the information was sent by email and was lost before it reached the receiving information system of the complainant.

[9] In these circumstances we think that the fair thing to do is to allow the complainant 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 complainant.
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 Hastie’s referral of a complaint about the broadcast by TVWorks Ltd of American Pie Presents: Beta House on FOUR on 24 May 2011.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 November 2011

Paper Reclaim Ltd and RadioWorks Ltd - ID2010-132

Tue, 26 Oct 2010 00:00:00 +1300

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Promo for the television current affairs programme Campbell Live was broadcast on Radio Live – question as to whether Authority has jurisdiction over promo

Findings
Authority accepts that it has jurisdiction over the promo for Campbell Live broadcast on Radio Live on Tuesday 6 July 2010

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1] A promo for the television current affairs programme Campbell Live was broadcast on Radio Live at 4.45pm on Tuesday 6 July 2010. The promo concerned an upcoming item on Campbell Live about the working conditions at an Auckland company called Paper Reclaim Ltd.

[2] Paper Reclaim Ltd made a formal complaint to RadioWorks Ltd, the broadcaster responsible for Radio Live, asserting that the Campbell Live promo breached Standards 5 and 6 of the Radio Code of Broadcasting Practice.

[3] RadioWorks responded that television promos which played on radio were “essentially advertisements and therefore not subject to the Broadcasting Act but fall to be considered by the [Advertising Standards Authority]”.

[4] Paper Reclaim Ltd forwarded the jurisdictional matter to the Authority for consideration.

Relevant Sections of the Broadcasting Act 1989

[5] Section 2 of the Broadcasting Act 1989 sets out the definition of an “advertising programme”. It states:

Advertising programme—

(a) means a programme or part of a programme that—

(i) is primarily intended to promote—

(A) the interest of any person; or

(B) any product or service for the commercial advantage of any person; and

(ii) is a programme or a part of a programme for which payment is made, whether in money or otherwise; and

(b) includes a credit in respect of a sponsorship or underwriting arrangement, being a credit that—

(i) is intended to promote any of the matters specified in paragraph (a)(i); and

(ii) is a credit for which payment is made, whether in money or otherwise; but

(c) does not include programme material that is the subject of a credit to which paragraph (b) applies; and

(d) does not include any programme or credit of the kind described in paragraph (a) or paragraph (b)—

(i) that promotes a scheduled programme on behalf of a broadcaster; or

(ii) that promotes only a station identity on behalf of a broadcaster; or

(iii) that constitutes an election programme.

Broadcaster’s Submissions on the Interlocutory Matter

[6] RadioWorks submitted that the Campbell Live promo was a paid (or contra’ed) “commercial” which could not be considered by the Authority. It contended that the exception outlined in subsection (d)(i) above only applied to promos which were broadcast on the same channel or station as the programme being advertised.

Complainant’s Submissions on the Interlocutory Matter

[7] The complainant submitted that the promo for Campbell Live was a “programme”, not an “advertising programme”. It noted that, under subsection (d)(i) of the definition, an advertising programme does not include any programme “that promotes a scheduled programme on behalf of a broadcaster”. Whether the promos were paid for (or contra’ed) was irrelevant, in the complainant’s view, and therefore the Authority had jurisdiction over the promos.

Authority's Findings

[8] This decision relates to an interlocutory matter of jurisdiction. We are required to determine whether promos for Campbell Live, broadcast on Radio Live, were programmes or advertisements.

[9] We note that subsection (a)(ii) of the definition states that an “advertising programme” is a programme for which payment is made, whether in money or otherwise. RadioWorks argues that because the Campbell Live promos were paid for, or “contra’ed”, they fell within the definition of an advertising programme.

[10] However, subsection (d)(i) states that an advertising programme “does not include any programme or credit of the kind described in paragraph (a)...that promotes a scheduled programme on behalf of a broadcaster”. The first part of this definition means that whether the promo was paid for is irrelevant, and therefore we share the complainant’s view in this respect.

[11] We consider that the promo broadcast on Radio Live promoted a scheduled programme, Campbell Live, on behalf of a broadcaster, TVWorks Ltd. The definition does not specify that the promo must be promoted by the same broadcaster who will be broadcasting the advertised programme.

[12] Accordingly, if a promo “promotes a scheduled programme on behalf of a broadcaster”, it is not an “advertising programme” but is a programme which falls to be considered by this Authority.

[13] For the sake of clarity, we wish to state clearly that this decision only applies to promos for “scheduled programmes” (subsection (d)(i)). In our view, this means promos which advertise a particular programme on a particular day – for example, Campbell Live on Tuesday 6 July 2010. These are the sorts of promos over which we consider Parliament intended the Broadcasting Standards Authority to have jurisdiction, because they have the potential to raise issues of broadcasting standards. In our view, generic promos for the Campbell Live programme would in most cases be classed as advertisements which fall to be considered by the Advertising Standards Authority.

For the above reasons the Authority accepts that it has jurisdiction over the promo for Campbell Live broadcast on Radio Live on Tuesday 6 July 2010.

Signed for and on behalf of the Authority

Peter Radich
Chair
26 October 2010

Bennett and TVWorks Ltd - ID2010-106

Tue, 14 Sep 2010 00:00:00 +1200

Member Tapu Misa declared a conflict of interest and did not participate in the Authority's determination of this interlocutary matter.

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item about meeting between Minister of Social Development and woman whose benefit details had been publicly released by the Minister – question of whether Authority has jurisdiction to accept a referral of the complaint

Ruling
29 April news item – majority decision – Authority has jurisdiction to accept the referral

30 April news item – Authority does not have jurisdiction to accept the referral

Appeal
This decision was appealed to the High Court. This decision was quashed. CIV 2010-485-2161

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1] An item on 3 News, broadcast on 29 April 2010 at 6pm on TV3, discussed a meeting said to have taken place between the Minister of Social Development and Employment, Hon Paula Bennett, and a woman whose benefit details had been publicly released by the Minister. The woman had made a complaint to the Privacy Commissioner about the release of her details. The item alleged that at a meeting between the Minister and the woman, a monetary settlement was discussed and the idea of the woman dropping the complaint was floated.

[2] The Minister, the following day, on 30 April 2010 wrote to the Director of News and Current Affairs at TV3. The Minister expressed considerable concern about the broadcast. She considered that it was malicious, without merit, defamatory and potentially in breach of the Broadcasting Act. The Minister referred to the sections she felt may have been breached. These sections relate to fairness, accuracy and balance. Without prejudice to her other options, the Minister sought an apology.

[3] On the evening of 30 April 2010 the Director of NCA replied to the Minister's adviser. The effect of the reply was to reject the validity of the Minister's complaints. He stated in conclusion:

I thought that tonight’s story was very clear and fair to all the parties involved.

However if the Minister remains unhappy I am happy to talk to her or indeed have further dialogue with either of you.

[4] On 4 May 2010, Ms Bennett’s adviser telephoned the office of the Authority and requested advice on how the ongoing process with this Authority should be progressed given that the response from the Director of NCA had not satisfied the Minister's concerns. This Authority's Legal Manager asked that the correspondence be referred to her for assessment. The Legal Manager wrote by email to Ms Bennett’s adviser to the effect that the Minister's complaint had not been dealt with as a formal complaint and that it was recommended that the complaint be sent to the Standards Committee of TV3 making it clear that a formal decision was expected. The advice concluded:

Once your complaint has been handled in this way, you will then be able to refer the complaint to the BSA.

[5] The Minister, by letter dated 4 May 2010 but sent on 10 May 2010, wrote again to the Director of NCA. This letter was a restatement of the Minister's previous complaint and in it she also referred to what she considered to be a further unsatisfactory broadcast on 30 April 2010. Her letter was headed:

FORMAL COMPLAINT

TV3 News bulletins 29 and 30 April

[6] The Standards Committee of TV3 duly considered that complaint and issued its decision on 10 June 2010 in relation to both the 29 and 30 April broadcasts. The conclusion was that no breach of relevant broadcasting standards had been identified in either item and the complaint was therefore not upheld. In accordance with usual practice and as required by the Act, the decision of the Standards Committee referred the complainant to her right to refer her complaint to this Authority. She was advised of the time limit of 20 working days after the receipt of the decision in which to do so.

[7] On 13 July 2010, the Minister’s adviser telephoned this Authority to check to see what progress this Authority was making with the Minister's complaint. She was advised by the Legal Manager that, as the Minister had not referred her complaint to this Authority within the specified time, the Minister's complaint could not be considered by this Authority. Later that day the Minister’s adviser wrote by email to this Authority declining to accept that the Authority ought not to consider the complaint and referring to the previous history.

[8] On 14 July 2010, the Legal Manager responded to the Minister’s adviser. In summary it was said that while the Minister's complaint of 30 April 2010 was a formal complaint, the response of the Director of NCA was not a decision. It was further said that the decision of the broadcaster was not made until 10 June 2010 and that the Minister, having not within 20 working days thereafter, referred the complaint to this Authority, it could not be accepted by the Authority. It is common ground that this Authority has no discretion to accept referrals out of time.

[9] The Minister wrote to this Authority on 28 July 2010 reasserting her position in some detail that her complaint had been properly referred to this Authority. She requested this Authority to advise her of what it proposed to do in relation to her complaint.

[10] The broadcaster was advised of the Minister’s position by this Authority. In response the broadcaster took the position that the substance of the complaint of the Minister was not able to be dealt with by us on account of absence of jurisdiction.

[11] The broadcaster based its position on its view that the response from the Director of NCA was an informal response, and that the Standards Committee’s decision on the complainant’s 4 May letter was the broadcaster’s formal response. The broadcaster noted that the Standards Committee’s decision “contained a clear notification of what the complainant could do if she was unhappy with the broadcaster's formal response”. The broadcaster maintained that Ms Bennett’s complaint was referred to the Authority outside the 20 working day timeframe allowed in the Broadcasting Act 1989, and therefore the Authority should not accept the complaint.

[12] Subsequently the broadcaster was asked by this Authority to clarify its position on whether Ms Bennett’s first letter dated 30 April 2010 was a formal complaint. The broadcaster advised this Authority that its position was that Ms Bennett’s first letter was an informal complaint.

[13] In response to this, Ms Bennett’s adviser informed this Authority that the complainant stood by her position that the letter of 30 April 2010 was a formal complaint.

Relevant sections of the Broadcasting Act 1989

[14] The following sections of the Broadcasting Act 1989 are relevant to the determination of this matter:

Principles

This Part is based on the following principles:

...

(h) the first consideration of a complaint should be prompt and without undue formality:

(i) further consideration of a complaint calls for greater formality.

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; …

7 Decisions in respect of formal complaints

(1) If a complaint under section 6(1)(a) is found to be justified, in whole or in part, the broadcaster shall take appropriate action and shall notify the complainant in writing of the action taken.

(2) If a complaint under section 6(1)(a) is found not to be justified, in whole or in part, the broadcaster shall notify the complainant in writing of the decision.

(3) The broadcaster shall, in notifying a complainant pursuant to subsection (1) or subsection (2), give to the complainant information concerning the complainant’s right, by way of referral to the Authority under section 8, to seek an investigation and review of the broadcaster's action or decision, as the case may be.

8 Right of complainant to refer formal complaint to Authority

(1B) A complainant may refer the complaint to the Authority if the complainant -

(a) made the complaint under section 6(1)(a); and

(b) is dissatisfied with—

(i) the decision of the broadcaster; or

(ii) the action taken by the broadcaster.

9 Time limits

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

...

(4) A complaint under section 8(1B) must be made to the Authority in the period—

(a) starting on the first working day after the day on which the complainant received notice of the broadcaster’s decision or action on the complaint; and

(b) ending 20 working days later.

[15] This is an interlocutory decision on a question of jurisdiction. Because of the importance of the written communications we will annex those that are relevant to this decision.

Authority’s Ruling (By Majority (Peter Radich and Mary Anne Shanahan))

Complaint about 29 April 3 News Item

Statutory Background

[16] The Broadcasting Act 1989 provides structures and arrangements for the maintenance of programme standards in broadcasting in New Zealand. As part of the structure, this Authority was established to receive and determine complaints from persons who are dissatisfied with the outcome of complaints made to broadcasters. The process of complaints involves two stages:

A first stage when the complaint must be addressed to the broadcaster.
A second stage, where the complainant is dissatisfied with the decision of the broadcaster or the action which the broadcaster takes and where the complaint is able to be referred to this Authority by the complainant.

In Section 5 of the Act where principles are expressed, it is said that the first consideration of a complaint..............should be prompt and without undue formality. It is also expressed in Section 5 as a principle that ...........formal complaints must be made in writing.

[17] Section 6 of the Act is headed Formal complaints about programmes. Sub-section 6 (1) provides –

Subject to Sub-section (2) [which relates to time limits and complaints having to be in writing], 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.

Section 4 is the Section which sets out in broad terms the scope of broadcasting standards.

[18] The situation is therefore that complaints to a broadcaster must be formal complaints and they must be dealt with by a broadcaster promptly and without undue formality.

Question 1

[19] The first question which has been raised for us to consider is whether the Minister's letter 30 April 2010 to the Director of NCA was a formal complaint. In relation to this complaint we make the following points:

The complaint was on the letterhead of a Minister of the Crown, the Honourable Paula Bennett, it was her complaint addressed to TV3 and it was signed on behalf of Minister Bennett by her authorised staff member.
The complaint asserted that serious allegations had been made against the Minister and that these were without any proper basis. The complaint alleged defamation and a breach of the Broadcasting Act.
The alleged potential breach of the Broadcasting Act was not well expressed. The Minister referred to the standards breached only by number and did not expand upon her complaint but it was clearly enough alleged that requirements for fairness, accuracy and balance had not been met.
An apology was requested without prejudice to other legal options.

[20] It is our view that the question of whether a complaint amounts to a formal complaint needs to be looked at in a purposive way. The process of complaints to broadcasters is intended to be a simple and accessible process not attended by any undue formality. No forms are prescribed and, in our view, it is sufficient if a complainant, in writing and within the time limit, conveys to a broadcaster that the complainant wishes to express the complainant's displeasure with and disapproval of a particular broadcast for specified reasons which are related to broadcasting standards. We do not think that it was intended that for a complaint to be a formal complaint it was to relate exclusively to broadcasting standards. Nor, in our view, is it necessary or appropriate for a broadcaster to have to winnow through the words to find some which give a sufficient flavour of formality.

[21] The fact that the Minister requested an apology does not detract from the fact that a standards complaint was made. It is open to a complainant at this stage of proceedings to suggest how a complaint might be satisfied.

[22] We have no difficulty in reaching the conclusion that the letter from a Minister of the Crown expressing considerable displeasure at a broadcast on the basis, amongst other things, that it breached nominated broadcasting standards (of accuracy, balance and fairness), amounted to a formal complaint.

Question 2

[23] Once a broadcaster has, as here, received a formal complaint, it is the duty of the broadcaster to consider such complaint. In this case there was a response to the formal complaint and this was the almost immediate reply from the Director of NCA sent by email on 30 April 2010. In this response, the Director of NCA:

Recorded that he had discussed the events surrounding the broadcast with relevant people within TV3.
Explained what had happened in relation to the broadcast and sought to say that the broadcaster had acted generally in an acceptable way.
Stated his view that the story was “very clear and fair to all the parties involved”.
Stated that if the Minister remained unhappy there could be further discussions.

[24] Section 7 of the Act is headed Decisions in Respect of Formal Complaints. It requires certain things to be done if a complaint is found to be justified or unjustified. If a complaint is found not to be justified in whole or in part the broadcaster is required to notify the complainant in writing of the broadcaster's decision. The broadcaster is required when notifying a complainant of the broadcaster's decision to give the complainant information concerning the complainant's right to take the matter further.

[25] Broadcasters in New Zealand range from very substantial commercial operations down to very small operators with very limited resources. The Act applies to them all without distinction. The large commercial operators have much more formalised procedures for dealing with complaints than do the small operators. The large operators have established Standards Committees and these give detailed consideration to complaints and they issue detailed decisions. When a formal complaint is made to a major broadcaster it would be usual for that complaint to be placed onto a conveyer belt leading to its consideration by the Standards Committee. Here that did not happen. Instead, the Director of NCA responded to the complainant almost immediately. The substance of his response was that the complaint was unjustified and that in his opinion the story was “very clear and fair to all the parties involved”.

[26] On the question of whether the reply email by the Director of NCA was a decision by the broadcaster we refer to the following:

It appeared to take the position that unless the complainant did something further, the broadcaster was not going to do anything further in relation to the complaint.
It clearly made the point that the Director of NCA considered the complaint to be unjustified.
It did not advise the complainant of her rights to take the matter further.
It was plainly received by the complainant as a rejection of her complaint. 30 April was a Friday. By Tuesday 4 May the complainant had contacted this Authority to say that a complaint had been lodged with the broadcaster, that the response did not address the complainant's concerns and that the complainant wanted to take the matter further.

[27] We consider, taking a pragmatic and purposive approach, that the response by the Director of NCA did amount to a decision of the broadcaster. His response was prompt and without undue formality as is prescribed in Section 5 of the Act. The decision of the broadcaster was to do nothing. The fact that the broadcaster in conveying an intention to do nothing about the complaint failed to address clearly the broadcasting standards issues, and failed to advise the complainant of her rights to take the matter further cannot, in our view, change the status of the decision to the disadvantage of the complainant. Obviously the Director of NCA has not responded to the complaint in accordance with the usual procedures within TV3 but the essence of what he did was to respond negatively to the complaint. The complainant certainly understood that her complaint was being rejected, as it was, and this is why she approached this Authority looking to refer the complaint to this Authority.

[28] Therefore, we have reached the point where, as at 4 May 2010, there was a formal complaint, there was a decision in relation to that complaint and the decision had been conveyed by the broadcaster to the complainant albeit other than in proper compliance with the Act. The next step is to consider whether the complainant has referred the matter to this Authority.

Question 3

[29] On Tuesday 4 May 2010 the Minister’s adviser telephoned this Authority and the Legal Manager made a file note of that conversation.

[30] Section 8 of the Act provides that a complainant may refer a complaint to the Authority if the complainant is dissatisfied with the decision of the broadcaster or with the action taken by the broadcaster. The reference to action taken by the broadcaster refers back to Section 7(1) which provides that in a case where a complaint is found to be justified, the broadcaster shall take appropriate action. In this case the broadcaster did not uphold the complaint and so no appropriate action was taken.

[31] The complainant here, the Minister, was dissatisfied with the decision of the broadcaster as made by the Director of NCA requiring us to consider the question whether the complainant has now referred the complaint to this Authority. The expression refer has different shades of meaning. In the context of the Act we consider that it means to bring a broadcaster's decision with which a complainant is dissatisfied, to the attention of this Authority in order for this Authority to give consideration to the complaint. This referral, if it was a referral, happened through a series of events. First there was the telephone inquiry to this Authority in which the Authority was notified of the complaint, of the broadcaster's decision and of the dissatisfaction of the complainant with the broadcaster's decision. Then, at the request of this Authority, the relevant correspondence was copied to this Authority. We consider that in total these actions amounted to a referral of the complaint to this Authority in terms of Section 8(1B). We have reached this conclusion for reasons which include the following:

By the end of 4 May this Authority was aware of the complaint, the decision of the broadcaster through the Director of NCA and the dissatisfaction of the Minister with the broadcaster's decision. Copies of all relevant documents were with this Authority.
No formal process of referral is prescribed in the Act and we consider that we need to look at the reality and substance of what happened rather than pay too much attention to usual form and processes of some broadcasters as these are not imposed by statute.
Although as at 4 May 2010 the Authority did not have sufficient information to enable it to determine the complaint on the papers, it did in our view have a sufficient foundation to enable it to proceed to obtain such further information as would have been required to determine the complaint.

[32] What has happened here is that the advice of the Legal Manager that the process as it had occurred up to the end of 4 May was insufficient to enable or require the machinery of this Authority to be started, caused the Minister to write another letter of complaint and label this a formal complaint. This then caused the usual machinery within the broadcaster to be activated and for a decision of the broadcaster's Standards Committee to be issued on 10 June 2010. The Minister then missed the rigid time limit, applicable to that decision, which began on 10 June 2010 in which to refer the matter to this Authority. The Minister has now argued that although she missed any time limit that began on 10 June 2010, the second part of the process which followed from the advice given by the Legal Manager was a type of supernumerary process, as the first part of the process which began on 30 April and carried through to the end of 4 May was sufficient to establish her status before this Authority. The Minister has argued that the advice she was given by the Authority was not correct and that the complaint should have been dealt with after 4 May 2010.

[33] As we have endeavoured to say, we agree that the Minister's complaint did have status before this Authority by the end of 4 May 2010. We have come to this conclusion following an approach which endeavours to look at substance rather than form, which looks at the purpose of the Act and which endeavours to give complainants whether they be a Minister or anybody else an opportunity to be heard as to the substance of their complaint. In all of the circumstances we do not think that a narrow legalistic approach ought to be taken to these issues.

Minority view

[34] A minority of the Authority (Leigh Pearson) is of the view that the 30 April letter from Ms Bennett to the Director of NCA at TV3 was not a formal complaint about the 29 April 3 News item. It was a typical letter of complaint received by television editors demanding an on-air apology. Although one sentence of the letter referred to potential breaches of the Broadcasting Act, the remainder of the letter was clearly not related to matters of broadcasting standards. The letter began by saying, “I am writing in response to the story aired on 3 News on Thursday 29 April”, and the complainant went on to discuss defamation, potential legal action, and suggested that an apology should be broadcast on that evening’s news bulletin. The fact that an apology was sought suggested that the matter would be resolved if an apology was forthcoming.

[35] Section 6(1)(a) of the Broadcasting Act states that broadcasters must “receive and consider formal complaints...where the complaint constitutes...an allegation that the broadcaster has failed to comply with section 4”. In the minority’s view, this letter did not constitute a formal complaint about broadcasting standards; it was a threat of further action, whether in a broadcasting standards context or in other legal remedies, if the broadcaster did not issue an apology that evening. The minority considers that it was appropriate for the Director of NCA to have dealt with this complaint as one that was not made under the Broadcasting Act.

[36] The minority further considers that, even if Ms Bennett’s letter of 30 April was a formal complaint, the response sent to the complainant was not a “decision” for the purposes of the Broadcasting Act. This was clear due to its informality and the short time frame in which it was provided. The reply was essentially a response to a request for an on-air apology. The answer was “no”. All parties to this complaint would expect proper and timely consideration of a “formal” complaint rather than the swift email reply provided.

[37] While bearing in mind that complainants cannot be expected to know the difference between a formal and informal response, the minority notes that broadcasters have a right to discharge their statutory obligations under the Broadcasting Act 1989. If the Authority accepted a referral when the broadcaster still had an opportunity to properly consider a complaint, the minority considers that this would be unfair, and effectively a denial of the broadcaster’s rights.

[38] In this case, other than a general reference to the item being clear and fair, no determination was made on the complaint in terms of breaches of broadcasting standards, and Ms Bennett was not advised of her right to refer the complaint to the Authority (see section 7 of the Broadcasting Act). On 4 May when the complainant asserts that the Authority should have accepted her referral, it was still within the 20 working day timeframe in which the broadcaster had the right to discharge these statutory obligations.

[39] In these circumstances, the minority finds that the Authority had no jurisdiction to accept Ms Bennett’s complaint about the 29 April news item on 4 May.

[40] In addition, the minority has considered the reasonableness of the complainant’s assertion that she had referred the complaint to the Authority on that date. The advice given to the complainant on 4 May was that the broadcaster still had an opportunity to make a formal decision on the complaint within the timeframes outlined in the Broadcasting Act, and that “once your complaint has been handled in this way, you will then be able to refer the complaint to the BSA”. The broadcaster’s formal decision of 10 June 2010 also concluded with the following paragraph:

In accordance with Section 7(3) of the Broadcasting Act 1989 you are notified that it is your right, should you be dissatisfied with this decision, to refer this matter, under Section 8 of the Act, to the Broadcasting Standards Authority, (P.O. Box 9213, Wellington) for the purpose of an investigation and review of this decision. You have 20 working days after receipt of this letter to exercise this right of referral.

[41] The minority also takes into account that, on 10 May, the complainant followed the advice of the Authority’s Legal Manager and sent a second complaint to TVWorks – headed “Formal Complaint” – which referred to breaches of standards in both the 29 and 30 April news items. The minority considers that it was clear only at this point that the complainant wished to make a formal complaint and receive a formal decision from the broadcaster about both items, and considers that this 10 May action was an acknowledgement of the Legal Manager’s advice that the complaint could not be referred to the Authority until TVWorks had been given an opportunity to formally respond to the complaint.

[42] Based on all the information provided to, and apparently accepted by, the complainant up until 13 July, the minority is of the view that the complainant had no reasonable basis upon which to believe that her complaint had been referred to, and accepted by, the Authority on 4 May. Because the complainant did not contact the Authority again until 13 July – more than 20 working days after receiving TVWorks’ decision of 10 June – the minority finds that the Authority has no jurisdiction to accept a referral of the complaint about the 29 April news item.

Complaint about 30 April 3 News item

[43] In a letter dated 4 May 2010, and sent to TVWorks Ltd on 10 May 2010, Ms Bennett also complained that a 3 News item broadcast on 30 April breached broadcasting standards. No complaint about the 30 April item had previously been sent to the broadcaster. TVWorks sent a decision on that complaint to Ms Bennett on 10 June 2010.

[44] Ms Bennett had 20 working days after receiving that decision to refer the complaint about the 30 April news item to the Authority. Section 9 of the Broadcasting Act states that the Authority “must not accept a complaint” referred to it outside that period. Because the complainant did not contact the Authority until 13 July 2010, the Authority has no jurisdiction to accept her complaint about the 30 April item.

A majority of the Authority finds that the Authority has jurisdiction to accept the complaint by Ms Bennett about the 29 April 3 News item.

The Authority unanimously finds that the Authority does not have jurisdiction to accept the complaint by Ms Bennett about the 30 April 3 News item.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 September 2010

View the attachments here.

Ministry of Health and CanWest TVWorks Ltd - ID2007-012B

Fri, 26 Oct 2007 00:00:00 +1300

CanWest TVWorks Ltd became TVWorks Ltd on 15 June 2007. Because the programme complained about was broadcast prior to this date, the broadcaster is still named as CanWest TVWorks Ltd.

Headnote

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory decision on production of field tape of interview with representative from Ministry of Health - featured in 3 News Special entitled "Let Us Spray" on 23 October 2006 - question of whether field tape should be provided to Ministry of Health

Decision
Authority to supply a copy of the field tape to Ministry of Health - section 12 Broadcasting Act 1989 and section 4C Commissions of Inquiry Act 1908

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1] A 3 News Special entitled "Let Us Spray" was broadcast on Monday 23 October 2006 at 7.30pm on TV3. The programme contained interviews with several Paritutu residents and their extended families, all of whom believed that various illnesses and birth defects were a result of exposure to 2,4,5-T or 2,4-D. It also reported the results of a blood serum study released by the Ministry of Health (MOH), and a forensic accountant outlined concerns about the accuracy of the report.

[2] MOH made a formal complaint to CanWest TVWorks Ltd, the broadcaster, that the programme was unbalanced, inaccurate, and unfair to the Ministry. Having received a response from the broadcaster, it then referred its complaint to the Authority on 2 February 2007. It noted that a Ministry representative (Dr Mark Jacobs) had been interviewed, and excerpts of that interview had appeared in the programme. MOH argued that the Authority should ask or require CanWest to provide a copy of the field tape of an interview with Dr Jacobs in order for it to assess whether standards of balance and fairness (in particular, the editing of the interview) had been breached. It also submitted that the Ministry should be provided with a copy of the tape in order to complete its response effectively.

[3] On 5 September 2007 the Authority asked CanWest to provide it with a copy of the field tape, advising the broadcaster that it had completed a preliminary assessment of the complaint. On 11 September 2007 the Authority advised CanWest that it intended to provide MOH with a copy of the field tape. The broadcaster responded that it did not believe MOH should be provided with a copy of the tape, and it requested an opportunity to provide submissions to the Authority in respect of this matter.

[4] The release of the field tape to the Authority was addressed in Interlocutory Decision ID2007-012 (10 October 2007) in which the Authority said:

Accordingly, pursuant to section 12 of the Broadcasting Act and s.4C(1)(b) of the Commissions of Inquiry Act, the Authority directs CanWest to provide it with a copy of the field tape of the interview with Dr Jacobs, portions of which were broadcast in the 23 October 2006 programme. The field tape must be lodged with the Authority by 5pm on Friday 12 October 2007.

Further, the Authority invites CanWest to make written submissions as to whether the field tape should be released to MOH and, if so, on what terms. These submissions are to be lodged with the Authority no later than 5pm on 17 October 2007. It will also seek written submissions from MOH within the same timeframe. The Authority considers that written, rather than oral, submissions will be sufficient for the parties to make their arguments.

CanWest’s submissions

[5] The broadcaster stated that the Authority’s powers under the Broadcasting Act and the Commissions of Inquiry Act were to be exercise in a manner that was consistent with the New Zealand Bill of Rights Act 1990 (NZBORA). It contended that the Authority, when exercising its powers, must strike a balance between the need to compel the material to be produced to the complainant and the right of the broadcaster to refuse to disclose it.

[6] CanWest maintained that the Authority must first determine the relevance of the field tape to the issues before it. Here, it said the relevant issue was likely to be whether the broadcast was fair and allowed MOH a reasonable opportunity to "have its say" on the issues under discussion. It wrote:

Only when the Authority considers, having looked at the programme and considered the submissions of the complainant and the broadcaster, that there is an issue as to whether the programme contained sufficient material to be fair or to present the MOH perspective on the material issues, can it then proceed further. Once it has established a foundation for relevance it can enquire from the broadcaster what other material was available which might have rendered the broadcast fair or more adequately presented the MOH point of view.

[7] Once relevance had been established, the broadcaster said, and the Authority had found the broadcast programme lacking in some material way, the Authority could require the broadcaster to provide the full interview with Dr Jacobs. It must then determine whether it was necessary to allow MOH to be given access to material that did not form part of the broadcast.

[8] CanWest stated that it was established in courts of general jurisdiction that a party seeking disclosure must first establish relevance - i.e. a proper evidential foundation for the material to be disclosed - and a need to have the material in order to properly progress its complaint. It submitted that it was not appropriate or necessary for MOH to have access to material that was not included in the programme.

[9] The broadcaster acknowledged that there was no secret source or highly confidential material in the full interview. Its objection was purely on a point of principle, it said, and "what is at stake is editorial independence and integrity".

MOH’s submissions

[10] MOH noted that the Authority was required to respect the principles of natural justice according to section 10(2)(c) of the Broadcasting Act 1989. It stated that there were two aspects to natural justice: the right to an unbiased decision-maker, and the provision of "a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view" (Board of Education v Rice [1911] AC 179). MOH said that, in general, the second aspect included the right to see all information before the decision-maker that may be relevant to the decision.

[11] The complainant submitted that the field tapes of the interview (it said there were two) were extremely significant pieces of evidence in that they went to the heart of the dispute between the parties. It added that the Authority’s usual practice of deciding complaints on the papers, rather than providing an opportunity for oral argument, increased the importance of full disclosure so that the written arguments could be properly informed.

[12] Simple natural justice, MOH wrote, dictated that the Authority could not make its decision based on, or influenced by, material that was available to one party but not the other. Similarly, it said that it was “an anathema to natural justice” that one party may cherry-pick parts of the evidence to bolster its case, without the other party being given the same opportunity.

[13] The complainant also contended that providing a copy of the tapes to MOH would minimise the chance that the Authority would need to interrupt its decision making process and seek a response from MOH to any unfavourable conclusions or impressions it reached when viewing the tapes itself.

[14] MOH stated that the case law on natural justice revealed that there were circumstances where relevant material did not need to be fully disclosed. However, it said, none of those exceptions applied in this case. It submitted that the material on the tapes was not confidential, and it was difficult to see how CanWest could suffer any serious harm from the disclosure. It added that there was no pressing need for prompt action that might excuse a lesser degree of procedural fairness, and the issue was a serious one affecting MOH’s reputation.

[15] The complainant submitted that the courts in New Zealand had repeatedly said that evidence from field tapes, demonstrating which parts of the tapes have been included and excluded, were of central importance to questions of balance and fairness (e.g. Comalco NZ v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA)). It referred to the following statements by Heron J in Television New Zealand Ltd v Ombudsmen [1992] 1 NZLR 106:

Section 4 in its terms must require an investigation into extrinsic material by reason of the criteria relating to reasonable efforts and reasonable opportunity. Any real investigation into the way in which a broadcaster had carried out its obligations under the Act would be extraordinarily contrived if access was not available to the surrounding circumstances when determining a complaint. Those circumstances would necessarily include other material available but not used.

[16] Looking at the present case, MOH stated that a variety of circumstances made it imperative that the Ministry be allowed to view and comment on the field tapes. These included:

the selective use by the broadcaster of some of the material on the field tape in its response to MOH’s referral of the complaint to the Authority
the broadcaster’s invitation to the Ministry to "spell out any allegation of alleged unfairness" in the interview
the heavy reliance placed by the broadcaster on the interview as showing that it had fulfilled its responsibility to provide a fair chance to respond to the allegations in the programme
the dispute about the questions asked during the interview
the dispute about the number and quality of interruptions during the interview
the dispute about whether the broadcaster properly included Dr Jacobs’ responses in the programme.

[17] MOH noted that if its complaint was with Television New Zealand Ltd, the Ministry would be entitled to a copy of the interview under the Privacy and Official Information Acts. This principle had been established since TVNZ v Ombudsmen in 1992, it said, and did not seem to have unduly affected TVNZ’s news operation. It wrote:

TV3 plainly do not want a precedent established relating to disclosure. It is submitted that the BSA has exercised its powers to order disclosure sparingly enough that this cannot be a serious concern.

[18] Finally, MOH submitted that a transcript of the field tape would not be sufficient, as the "nuances of the interview" would not necessarily be reflected in a transcript.

Authority’s Ruling

[19] At the outset, the Authority notes MOH’s comment that there are two tapes. It understands that these tapes are of the same interview, but were simply recorded on two different cameras. The Authority is satisfied with the one field tape supplied to it by the broadcaster.

[20] The Authority has given careful consideration to the arguments advanced by the parties in respect of whether MOH should be given access to the field tape of Dr Jacobs’ interview, and, as it informed CanWest on 5 September before the broadcaster made submissions on the present issue, it has conducted a preliminary assessment of the programme and the complaint. It finds the Ministry’s arguments in respect of natural justice to be compelling, and it notes that the weight of legal precedent supports the Ministry’s submissions.

[21] The Authority acknowledges CanWest’s argument about the general principles of editorial independence and integrity. However, it is of the view that MOH should be given access to the field tape in order to complete its submissions on balance and fairness.

[22] The Authority observes, however, that the Ministry should only use the material in the field tape to support the points it has already made in its formal complaint; it is not able to introduce new points of argument at this stage.

[23] The Authority requires the Ministry’s submissions and the return of the field tape by 5pm on Friday 9 November 2007. The Authority advises CanWest that it intends to make the field tape available to MOH on Wednesday 31 October 2007.

Order

Pursuant to section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority shall supply to the Ministry of Health a copy of the field tape which was made available to the Authority by CanWest TVWorks Ltd in compliance with the order in Decision No. ID2007-012. The tape shall be supplied to the Ministry on Wednesday 31 October 2007.

The field tape is supplied to the Ministry of Health to assist it in making a final submission on the complaint about the broadcast of Let Us Spray on 23 October 2006. The Authority requires the final submission and the return of the field tape by 5pm on Friday 9 November 2007.

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 October 2007

Ministry of Health and CanWest TVWorks Ltd - ID2007-012

Wed, 10 Oct 2007 00:00:00 +1300

CanWest TVWorks Ltd became TVWorks Ltd on 15 June 2007. Because the programme complained about was broadcast prior to this date, the broadcaster is still named as CanWest TVWorks Ltd.

Headnote

Ruling
Order made to supply tape to the Authority - section 12 Broadcasting Act 1989 and section 4C Commissions of Inquiry Act 1908

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[3] After several delays, CanWest provided the Authority with a formal response to the referral on 7 August 2007. Having received a copy of this response, MOH made a further request that the Authority obtain a copy of the full field tape of Dr Jacobs’ interview, and that the Ministry should also receive a copy.

[4] Having considered the submissions from both parties, in a letter dated 5 September 2007, the Authority asked CanWest to provide it with a complete field tape of the interview with Dr Mark Jacobs by Wednesday 19 September 2007. On 11 September 2007, the Authority advised CanWest that it intended to also provide a copy of the field tape to MOH, writing:

This letter is to advise you that the Authority intends to provide MOH with a copy of the field tape. In reaching this decision, the Authority has taken into account the fact that, in its response to the referral, TVWorks has quoted from a section of the field tape that was not broadcast.

Given that the broadcaster has relied upon material that was not in the programme, the Authority considers that, under the principles of natural justice, the complainant should have the opportunity to view and comment on this material.

[5] The broadcaster did not provide the field tape, or a response to the Authority’s letter, by 19 September 2007 as requested.

[6] Following an email from the Authority to CanWest on 20 September 2007, the broadcaster stated that it wished to make some arguments in respect of whether the field tape should be provided to MOH. The Authority agreed to this request, and asked that further submissions be supplied by Tuesday 2 October 2007.

[7] On Wednesday 3 October, having received no submissions from CanWest, the Authority again wrote to the broadcaster stating:

...if your comments on the field tape issue are not received by 10am tomorrow morning, the Authority intends to consider ordering TVWorks to produce a copy of the field tape, within 24 hours, pursuant to s.12 of the Broadcasting Act 1989 and s.4C of the Commissions of Inquiry Act 1908.

[8] On Thursday 4 October, CanWest wrote to the Authority questioning whether MOH had laid a proper foundation for the inspection of the field tape. It suggested that CanWest could make the field tape available to the Authority members, "preferably those most experienced with television production", so that it could then consider whether MOH had laid a proper foundation for its request.

[9] Acknowledging that its response had referred to a portion of the interview which had not been broadcast, CanWest said it would happily excise that material from the record. It also suggested that, rather than providing MOH with a copy of the tape, it could provide a transcript or make the tape available for viewing.

[10] In a letter dated 4 October 2007, the Authority asked the broadcaster to provide it with a copy of the field tape by 5pm on 8 October 2007. It again advised the broadcaster that it intended to provide MOH with a copy of the tape. The Authority wrote:

As discussed earlier, the Authority’s view is that, because TVWorks referred to a part of the interview with Dr Jacobs that was not broadcast, the principles of natural justice require that the complainant be provided with this material. The Authority does not consider that it is appropriate for TVWorks to simply excise that portion of its response, or that MOH simply view the field tape.

The Authority is mindful that journalists regard field tapes as being equivalent to a reporter’s notebook. In this case, however, that material has been placed into the public domain by virtue of its incorporation into the complaint by the journalists themselves.

[11] CanWest advised the Authority on 4 October 2007 that it was taking advice on this matter. It did not provide the Authority with a copy of the field tape, or indeed any response, by 8 October 2007 as requested in the Authority’s letter.

[12] On Tuesday 9 October, the broadcaster reiterated its concerns about providing the field tape to MOH. It proposed that the Authority hear legal argument on this point, in the form of written and oral submissions, and stated that it wanted the opportunity to advise the Authority on how similar Tribunals considered discovery-like requests.

Authority’s Ruling

[13] Section 12 of the Broadcasting Act 1989 allows the Authority to use certain provisions in the Commissions of Inquiry Act 1908. Section 4C(1)(b) of the Commissions of Inquiry Act provides that a Commission may:

Require any person to produce for examination any papers, documents, records, or things in that person's possession or under that person’s control, and to allow copies of or extracts from any such papers, documents, or records to be made.

[14] Section 4C(3) of the Act states:

For the purposes of the inquiry the Commission may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, furnished or produced to it be supplied to any person appearing before the Commission, and in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

[15] Leaving aside the question of whether MOH should be provided with a copy of the field tape, the Authority is of the view that it requires a copy of the full interview in order to determine the Ministry’s complaint about balance and fairness. In these circumstances the Authority considers that it is appropriate to exercise its powers in accordance with the above sections.

[16] In reaching this decision, the Authority has paid particular regard to McKay J’s judgment in the Court of Appeal decision Comalco NZ v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA), at paragraph 161:

We agree that the Authority’s jurisdiction is to deal with complaints as to what is broadcast, but it is entitled to consider any evidence that "in its opinion may assist it to deal effectively with the subject of the inquiry": Commissions of Inquiry Act 1908 section 4C. To determine whether broadcast material is balanced and objective may well call for consideration of the way in which it was selected and in which other material was excluded. The Authority is not thereby extending its jurisdiction by making a decision on the material not in the actual broadcast. It is using that material in order to decide whether the complaint is justified, and whether the broadcast failed to comply with the standards required by the Act.

[17] The Authority considers that it must obtain a copy of the field tape in order to make a proper assessment of balance and fairness in the selection and editing process, as these are significant aspects of MOH’s complaint.

[18] Accordingly, pursuant to section 12 of the Broadcasting Act and s.4C(1)(b) of the Commissions of Inquiry Act, the Authority directs CanWest to provide it with a copy of the field tape of the interview with Dr Jacobs, portions of which were broadcast in the 23 October 2006 programme. The field tape must be lodged with the Authority by 5pm on Friday 12 October 2007.

[19] Further, the Authority invites CanWest to make written submissions as to whether the field tape should be released to MOH and, if so, on what terms. These submissions are to be lodged with the Authority no later than 5pm on 17 October 2007. It will also seek written submissions from MOH within the same timeframe. The Authority considers that written, rather than oral, submissions will be sufficient for the parties to make their arguments.

Order

Pursuant to section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority orders CanWest TVWorks Ltd to provide it with the field tape of the full interview with Dr Mark Jacobs, excerpts of which featured in the 23 October 2006 broadcast of Let Us Spray, by 5pm on Friday 12 October 2007.

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 October 2007

New Zealand Catholic Bishops Conference (NZCBC) and CanWest TVWorks Ltd - ID2005-112A

Tue, 21 Mar 2006 00:00:00 +1200

INTERLOCUTORY DECISION

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Popetown – animated comedy set in a fictional Vatican City – allegedly in breach of good taste and decency and unfair

Decision on interlocutory application – second request for formal hearing – further request for hearing made in light of increased public interest in issue of balance between free speech and rights of religious groups to be free from mockery

Findings
Authority may reconsider interlocutory decision if party presents new relevant information not reasonably able to be adduced at the time of the first application – new information as to increased public interest relevant in the present case – Authority reconsidered earlier decision – increased public interest still insufficient reason of itself to convene formal hearing – application declined.

This headnote does not form part of the decision.

Background

[1] On 16 September 2005 Bishop Denis Browne, on behalf of the New Zealand Catholic Bishops Conference, referred to the Authority complaints about three episodes of Popetown, an animated satirical comedy broadcast on C4.

[2] On 28 November 2005 the Broadcasting Standards Authority released its interlocutory decision on a request from the complainant to convene a formal hearing in respect of the complaints (see Decision No. ID2005-112). The Authority declined the complainant’s request, and its reasons for doing so are set out in paragraphs [15] – [20] of that decision.

[3] The complainant has now made a further request that the Authority convene a formal hearing to consider the complaints.

Complainant’s Submissions

[4] The complainant submitted that the issue of the balance to be drawn between the competing rights of free expression on the one hand, and freedom of religious groups from denigration on the other, is now of such public importance that a formal hearing was required to resolve the Popetown complaints.

[5] The complainant stated:

The submissions of the Conference raise the issue of where the line is to be drawn and recent events and likely future events make the necessity to deal with that matter immediate and acute. The possible political and economic consequences of the Danish cartoons incident clearly demonstrate what is at stake is not the outcome of an academic debate on the rights and freedoms of the media. The practical issues require the identification of the point where media freedom (or in some cases licence) ends and the public interest and the rights of the community and members of the community begin. …
The Conference takes the view that the matter has now become far too serious to be dealt [with] without fair consideration and debate, and that issues of natural justice and public interest require that full and formal hearings be undertaken to deal with the broad issues involved. The Conference therefore renews its request that its current application be dealt with by oral hearing and submission and not merely on the basis of written submissions.

CanWest’s Submissions

[6] CanWest opposed the request. It submitted that the other issues referred to by the complainant – such as the Danish cartoons – were not relevant to the Authority’s determination of whether the episodes of Popetown complied with broadcasting standards. It concluded:

[Canwest] believes that the substantive issues raised by the referral have already been canvassed in depth and that the Authority has all the material it requires to make a determination of the issue.

Authority's Determination

[7] The first issue for the Authority is whether it can consider the NZCBC’s further request for a hearing. The Authority has already considered one such request from the complainant, and declined the request in Decision No. ID2005-112. The issue therefore arises whether the Authority is prevented from deciding the same issue again.

[8] Where the Authority has declined an interlocutory application, and a further, identical application has then been made on the same factual basis, the Authority would be unable to consider the merits of that further application. The doctrine of res judicata/issue estoppel would apply, whereby litigants are prevented from re-litigating an issue identical to one that has already been decided.

[9] Nevertheless, the Authority considers in circumstances where an applicant produces new information, relevant to the issues at hand, and which could not reasonably have been adduced at the time of the earlier application, it should consider the new application. There is recent support for this approach from the Court of Appeal; see Link Technology 2000 Limited & Anor v The Attorney General [2005] NZCA 27, paragraphs 40 – 55.

[10] In light of this approach, the next issue for the Authority is whether the complainant’s submissions raise any matters relevant to the determination at hand, and which could not reasonably have been produced at the time of making the first application.

[11] In essence, the complainant makes a single submission. In light of two recent highly publicised events – the publication of cartoons depicting the Prophet Mohammed, and CanWest’s stated intention to screen the controversial episode of the animated series South Park, which featured a bleeding Virgin Mary statue – the public interest in the balance between freedom of expression and the right of religious groups to be free from attack has become a matter of critical public importance. This, the complainant submits, means that the issue should be addressed through a formal hearing.

[12] The Authority has recognised that the degree of public importance in a particular issue is one of the factors that it will take into account in determining whether a hearing is required; see Decisions ID2004-154 and ID2005-112.

[13] The Authority stresses that the particular examples used by the complainant – the cartoons and South Park – are, of themselves, not relevant to the determination of the present complaints, which must be determined on their own facts. Nevertheless, the Authority accepts that the wider issue raised by those examples – that of the balance between free speech and the rights of religious groups – has become a matter of intense public interest and debate. It also accepts that at the time it released its first decision on the complainant’s application for a hearing, no-one could reasonably have predicted the degree to which this issue would rapidly become a matter of widespread public interest and importance in New Zealand.

[14] However, while the Authority agrees with the complainant that the wider issue raised by the Popetown programmes is now a matter of general public interest, it also notes that the public interest is only one of the factors that the Authority will take into account. The other considerations include:

whether there are any complex issues of fact that could best be resolved by hearing witnesses
whether there are issues of credibility that can best be determined by examining witnesses in person
whether the complaint concerns complex legal issues that can best be addressed through oral submissions and argument, and the questioning of parties or their legal counsel
whether there are special circumstances relating to the complainant meaning that they cannot be fairly expected to make submissions in writing.

[15] The complainant has not suggested that any of these other considerations have changed, and that is not the basis of its further application for a formal hearing. In light of this, the sole issue for the Authority is whether the increased public interest in the wider issue now requires the Authority to convene such a hearing.

[16] While the public interest in, and awareness of, this wider issue has increased over recent weeks, the issue itself is not a new or additional factor of which the Authority has previously been unaware. Indeed, in four decisions issued about other episodes of Popetown, consideration of this issue is central to the Authority’s determination (see Decision 2005-096, paragraphs [30]-[37]; Decision 2005-097, paragraphs [35]-[42]; Decision 2005-111, paragraphs [28]-[36]; Decision 2005-128, paragraphs [34]-[42]). The Authority is likewise aware that the issue will be fundamental to its determination of the complaints lodged by the NZCBC.

[17] For these reasons, the Authority remains unconvinced that its understanding of the issue in respect of these particular complaints is likely to be advanced by hearing the parties in person.

[18] While the Authority remains open to requests for formal hearings in appropriate cases, in light of the presumption of informality in the Broadcasting Act 1989 the Authority is mindful of the need to convene such a hearing only in circumstances where it is likely to assist materially the determination of the relevant issues.

For the above reasons the Authority declines the complainant’s further request for a formal hearing

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 March 2006

Appendix

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

NZCBC formal complaint to CanWest – 22 July 2005
CanWest’s response to the formal complaint – 22 August 2005
NZCBC’s referral to the Authority – 16 September 2005
CanWest’s response to the referral – 26 September 2005
NZCBC’s request for a formal hearing – 8 November 2005
CanWest’s response to the request for a formal hearing – 18 November 2005
NZCBC’s further request for a formal hearing – 8 February 2006
CanWest’s response to the further request – 15 February 2006

New Zealand Catholic Bishops Conference (NZCBC) and CanWest TVWorks Ltd - ID2005-112

Mon, 28 Nov 2005 00:00:00 +1300

INTERLOCUTORY DECISION

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Popetown – animated comedy set in a fictional Vatican City – allegedly in breach of good taste and decency and unfair

Decision on interlocutory application

Request for formal hearing – not required in all the circumstances of the case – declined

This headnote does not form part of the decision.

Background

[1] Three episodes of Popetown were broadcast on C4 at 9.30pm on 29 June, 6 July and 20 July 2005. The animated series was set in a fictional Vatican City (called Popetown), and centred round a young priest called Father Nicholas, a group of corrupt cardinals and a child-like Pope character.

[2] An episode called “Trapped” was broadcast on 29 June. The storyline involved the character Sister Marie giving the “Pope” “papal bull” energy drink, whereupon he develops “windy pops”. The Pope, Father Nicholas and Sister Marie become trapped in the catacombs under Popetown.

[3] An episode called “Possessed” was broadcast on 6 July 2005. In this episode, Sister Marie and Father Nicholas think that the Pope is possessed because he is levitating, speaking in a strange voice and vomiting. It transpires that the Pope has accidentally swallowed some bees. In another storyline, the Cardinals discover a wonder-cream that makes the user young and beautiful and decide to market it to lepers.

[4] An episode called “A Family Affair” was broadcast on 20 July 2005. It involved Father Nicholas’ mother coming to visit Popetown and having an affair with a Swiss Guard.

[5] The New Zealand Catholic Bishop’s Conference (NZCBC) complained to CanWest TVWorks, the broadcaster, that the episodes breached Standard 1 (good taste and decency) and Standard 6 (fairness). It specifically elected Guidelines 6a, 6b, 6f and 6g.

[6] The NZCBC alleged that Popetown caused calculated and deliberate offence, and was unfair to clergy and members of the Catholic church.

[7] CanWest did not uphold the complaint, and the NZCBC referred the complaint to the Authority.

NZCBC’s Procedural Request

[8] After referring the matter to the Authority, the NZCBC, through its solicitor, requested that the Authority convene a formal hearing to consider the complaint. In particular, the complainants advised that they wished to make submissions in respect of what they perceived as the reliance on comments made by Lyndsay Freer, a representative of the NZCBC and Catholic Communications.

[9] They described Mrs Freer’s comment that she “couldn’t take [Popetown] seriously enough to consider it harmful or offensive”…as a “preliminary reaction”. The complainants noted that, at the time of the broadcaster’s submissions, they were aware that the NZCBC and Ms Freer had taken a different attitude in respect of the programme. They considered that this issue was “worthy of examination”.

[10] The complainant also considered that previous decisions by the Authority raised issues regarding the fairness standard and s.14 of the New Zealand Bill of Rights Act 1990. It asserted that the Authority equated unfairness with denigration, and that this required some “critical examination”.

[11] The NZCBC further submitted that the particular and continuing effect of Popetown, and the attitudes promulgated by it, required further examination. It advised that the position of the complainant would be that the series, taken as a whole, met a reasonable test of denigration.

[12] Finally, the complainant advised that there were other, unspecified issues to be dealt with by further submission.

Broadcaster’s Response to the Authority

[13] CanWest opposed the request for a hearing. It noted that the Authority had already determined two complaints about Popetown, and submitted that this complaint did not raise any new information or issues, not covered in the earlier complaints, that necessitated a hearing.

Authority's Determination

[14] The members of the Authority have viewed a tape of the broadcasts complained about and have read the correspondence listed in the Appendix.

[15] It is the usual practice of the Authority to deal with complaints on the papers, after both the complainant and the broadcaster have been given the appropriate opportunity to make submissions. In adopting that general practice, the Authority has regard to s.10(2) of the Broadcasting Act 1989, which states that complaints should be determined with “as little formality and technicality” as is permitted by the Act, the proper consideration of the complaint, and the requirements of natural justice.

[16] The question for the Authority in determining a request for a formal hearing is whether such a hearing would assist the Authority in determining the complaint. In assessing this question, the Authority may take into account the following matters:

whether there are any complex issues of fact that could best be resolved by hearing witnesses
whether there are issues of credibility that can best be determined by examining witnesses in person
whether the complaint concerns complex legal issues that can best be addressed through oral submissions and argument, and the questioning of parties or their legal counsel
whether the legal issues are matters of broad principle or general public interest
whether there are special circumstances relating to the complainant meaning that they cannot be fairly expected to make submissions in writing.

[17] The Authority does not consider that any of these grounds apply in the present case. The NZCBC’s complaint does not raise any disputed issues of fact requiring resolution. The Authority acknowledges the complainants’ intention to address in its submissions the proper application and interpretation of the fairness standard in relation to this complaint. Nevertheless, the Authority is of the view that this argument can appropriately be dealt with through the exchange of written submissions; effective consideration of this issue is unlikely to be materially advanced by the parties making oral submissions.

[18] While the issues raised by the broadcasts of Popetown are undoubtedly of deep concern to the complainants, and do raise important issues about freedom of expression and satire balanced against the rights of identifiable groups, the Authority does not believe that fact alone justifies convening a formal hearing.

[19] Where the facts are not in doubt, the issues for determination are confined (albeit important) and there is no reason that the issues cannot be effectively addressed through the exchange of written submissions, the Authority considers it appropriate to follow its usual course of action in determining the matter on the papers.

[20] For the above reasons, the Authority considers that this is not a matter for which a formal hearing is required.

For the above reasons the Authority declines the complainant’s request for a formal hearing.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 November 2005

Appendix

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

NZCBC formal complaint to CanWest – 22 July 2005
CanWest’s response to the formal complaint – 22 August 2005
NZCBC’s referral to the Authority – 16 September 2005
CanWest’s response to the referral – 26 September 2005
NZCBC’s formal request for a formal hearing – 8 November 2005
CanWest’s response to the request for a formal hearing – 18 November 2005

Benson-Pope and Radio New Zealand Ltd - ID2005-083

Thu, 22 Sep 2005 00:00:00 +1200

INTERLOCUTORY DECISION

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory application for disclosure of additional material – broadcast of allegations by an anonymous interviewee on Nine-to-Noon

Decision on interlocutory application
Request for production of field tape – already offered by broadcaster – decline to determine

Request for disclosure of interviewee’s name – not required in order for Authority to determine complaints – declined

Request for production of all relevant pre-broadcast records and documents, and emails received after the broadcast – not required in order for Authority to determine complaints – declined

This headnote does not form part of the decision.

Factual Background

[1] On 12 May 2005, under the protection of parliamentary privilege, National and Act Members of Parliament accused then Associate Minister of Education, the Hon David Benson-Pope, of bullying students while he was teaching at Dunedin’s Bayfield High School in the 1980s.

[2] Mr Benson-Pope categorically denied the allegations.

[3] The following day on Nine to Noon, a magazine-style current affairs show broadcast on National Radio, host Linda Clark interviewed an anonymous man who said that he was one of the students bullied by Mr Benson-Pope. The man made a number of allegations, including that:

Mr Benson-Pope on one occasion caned him until he drew blood
Mr Benson-Pope picked on him
Mr Benson-Pope appeared to enjoy administering corporal punishment to students.

[4] Mr Benson-Pope made a formal complaint to RNZ, alleging that the broadcast was unbalanced, inaccurate and unfair. The essence of Mr Benson-Pope’s complaint was that:

the broadcast was unbalanced, as nothing supporting his side of the story was included
it was unfair to broadcast damaging allegations by an unidentified accuser
the allegations were untrue.

[5] RNZ declined to uphold the complaint, and Mr Benson-Pope referred the matter to the Authority.

Mr Benson-Pope’s Procedural Requests

[6] Through his lawyer, Mr Benson-Pope submitted that in determining the complaint the Authority should exercise its powers pursuant to section 12 of the Broadcasting Act 1989 and sections 4B and 4C of the Commissions of Inquiry Act 1908. These provide:

Broadcasting Act 1989

12. Application of Commissions of Inquiry Act 1908—

Sections 4B, 4C, 4D, 5, 6, 7, 8, and 9 of the Commissions of Inquiry Act 1908 shall, for the purposes of the Authority's consideration of any complaint referred to it under section 8 of this Act, apply to the Authority—

(a) As if the Authority were a Commission of Inquiry established under the Commissions of Inquiry Act 1908; and

(b) As if the Authority's consideration of the complaint were an inquiry for the purposes of the Commissions of Inquiry Act 1908

Commissions of Inquiry Act 1908

4B.Evidence—

(1) The Commission may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectively with the subject of the inquiry, whether or not it would be admissible in a Court of law.

4C. Powers of investigation—

(1) For the purposes of the inquiry the Commission or any person authorised by it in writing to do so may—

(a) Inspect and examine any papers, documents, records, or things

(b) Require any person to produce for examination any papers, documents, records, or things in that person's possession or under that person's control, and to allow copies of or extracts from any such papers, documents, or records to be made.

(c) Require any person to furnish, in a form approved by or acceptable to the Commission, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents, or records as aforesaid.

[7] Mr Benson-Pope submitted that pursuant to section 4C the Authority should require RNZ to produce:

the field tape of the interview
all relevant pre-broadcast records and documents
copies of all emails received by the programme after the show was broadcast.

[8] Mr Benson-Pope submitted that the Authority would not be able to determine the complaint effectively unless this material was made available.

[9] In support of his application, Mr Benson-Pope relied on the decision of the Court of Appeal in Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153. He submitted this was authority for the proposition that the Authority required, and was entitled to seek from RNZ, this additional material in order to consider the complaint properly. The essence of the Comalco decision that Mr Benson-Pope relied on was the Court’s statement that:

To determine whether broadcast material is balanced and objective may well call for consideration of the way in which it was selected and in which other material was excluded (at p.161)

[10] Other than citing Comalco, Mr Benson-Pope did not provide specific submissions as to how the additional material potentially advanced his arguments that the broadcast breached the Radio Code, or how he anticipated it would assist the Authority in its consideration of the nominated standards.

RNZ’s Response

[11] RNZ initially declined to release the field tape of the interview, as the interview had proceeded on the basis that the interviewee would remain anonymous. Releasing the tape, it said, would compromise this anonymity. RNZ stated that it took seriously undertakings given as to anonymity.

[12] Following receipt of further submissions from Mr Benson-Pope, however, RNZ agreed that it would release the field tape of the interview, but said it would delete from it any references that would lead to the identification of the interviewee.

[13] RNZ submitted that the other material requested by Mr Benson-Pope was not required by the Authority. It noted, however, that if the Authority considered that the information was required, it would provide such information as soon as possible.

Further Correspondence

[14] Mr Benson-Pope contested RNZ’s argument that it was entitled to preserve the anonymity of the interviewee. He maintained that RNZ had provided no information other than a “bald assertion” to establish that it was obliged to respect the interviewee’s anonymity.

[15] Mr Benson-Pope submitted that RNZ needed to provide:

…details of all the circumstances leading up to and relevant to understanding as to anonymity: when was such an understanding reached; what were the terms of that understanding; was the understanding in writing or recorded in some other form; what were the reasons for seeking anonymity; what were the reasons for Radio New Zealand reaching such an “understanding” as to anonymity; what if such an understanding had not been reached.

[16] “It is only when this information is provided”, Mr Benson-Pope concluded, “that the claimed ‘obligation’ as to anonymity can be assessed”. He invited the Authority to make a decision as to whether RNZ was required to produce the material requested.

Authority's Determination

[17] The complainant has requested that the Authority exercise its powers under section 12 of the Broadcasting Act 1989 and sections 4B(1) and 4C(1)(b) of the Commissions of Inquiry Act 1908. He requested that the Authority require RNZ to produce specified material, which he maintains is relevant to the determination of the complaint.

[18] The Authority has previously held, in Decision No. 2002-179, that the intent of these statutory provisions is to allow the Authority to require the production of evidence only if that evidence is necessary to enable the Authority to deal effectively with the subject of the complaint. That is the basic test that it applies in the present case.

[19] There are a number of issues that the Authority must address:

should RNZ be required to produce a field tape of the interview with Mr Benson-Pope’s accuser?
if the tape must be produced, is RNZ entitled to withhold the identity of the interviewee?
should RNZ be required to produce all pre-broadcast documentation in its possession relating to the interview in question?
should RNZ be required to produce copies of all the emails it received following the broadcast of the interview?

Field tape

[20] RNZ’s agreement to produce the field tape of the interview, albeit with any identifying references removed, has made unnecessary a decision from the Authority on this issue. In light of RNZ’s willingness to produce the tape, the Authority does not intend to make a finding. It will await receipt of the tape, provide a copy to the complainant, and seek further submissions on the substantive complaint.

Anonymity of interviewee

[21] Despite RNZ’s agreement to produce a field tape, edited only to remove details that would identify the interviewee, Mr Benson-Pope continues to maintain that the full tape must be provided. He has submitted that RNZ has provided no evidential basis for its assertion that a genuine assurance of confidentiality was given to the interviewee, and in any event, RNZ is not automatically entitled to rely on the right to protect the identity of its sources.

[22] First, the Authority records its acceptance that RNZ gave the interviewee an assurance of confidentiality. While Mr Benson-Pope has questioned whether RNZ gave a genuine assurance, he has provided no basis for his assertion. The Authority sees no reason to doubt that RNZ gave such an assurance, particularly given its continuing efforts to protect that anonymity.

[23] The Authority therefore proceeds on the basis that RNZ gave the interviewee an assurance of confidentiality.

[24] The Authority also observes that this decision is not concerned with the issue whether RNZ should have told Mr Benson-Pope the identity of the interviewee at the time of, or prior to, the broadcast. That issue will be determined as part of the substantive complaint. The only issue at stake here is whether the Authority needs to know the identity of the interviewee to determine whether this broadcast breached the Radio Code.

[25] In some circumstances, the identity of an otherwise anonymous interviewee might be relevant to an assessment of whether the accuracy standard has been breached. Of particular relevance is Guideline 6d to Standard 6, which states:

Broadcasters shall ensure that the editorial independence and integrity of news and current affairs is maintained.

[26] Accepting, therefore, that the identity of a news source might be relevant in assessing whether a broadcaster took reasonable steps to verify a source’s integrity and credibility, does this make the information necessary to determine the complaint effectively? There are two factors that cause the Authority to doubt that this is the case.

[27] First, the complainant has provided no compelling argument that the information is in any way critical or fundamental to this case.

[28] Second, the Authority is able to address any evidential gap left by the anonymity of the interviewee by other means. As noted above, the only basis on which it considers the information would be relevant is in relation to its assessment of whether RNZ took sufficient steps to satisfy itself of the integrity and credibility of the interviewee. The Authority will therefore seek further information from RNZ, requesting it to provide details of the steps that it took to verify the credibility of the interviewee. This is consistent with the Authority’s approach in Decision No. 2004-115 (see paragraph [111] of that decision) which also involved the broadcast of allegations by an anonymous interviewee. Receipt of this information will enable the Authority to assess whether RNZ’s pre-broadcast investigations were reasonable in terms of ensuring the integrity of the story, without requiring RNZ to disclose the identity of its source.

[29] Accordingly, for the above reasons, and having taken into account the submissions received, the Authority concludes that the identity of the interviewee is not necessary for the effective determination of the complaint.

[30] Even if the information was necessary for the effective determination of the complaint, the Authority would still have to consider the compelling counter-argument based on a journalist’s right to protect the confidentiality of news sources.

[31] There is no doubt that the freedom of the media to protect the identity of sources who wish to remain anonymous is an important principle in a democratic society, one that is well-recognised and often protected by the courts. As stated by the European Court of Human Rights:

The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards afforded to the press are of particular importance.
Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and professional codes of conduct in a number of … states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.
Goodwin v United Kingdom (1996) 22 EHRR 123, cited with approval in Ashworth Security Hospital v MGN Limited [2002] UKHL 29 (House of Lords)

[32] Courts have consistently found that before disclosure will be ordered, the necessity for the restriction on press freedom must be convincingly established. These principles are reflected in our own evidence law; s35 of the Evidence Amendment Act (No. 2) 1980 provides (in summary) that:

A witness may be excused from giving evidence or providing a document that would breach a confidence given to a person with whom they have a “special relationship”
In deciding whether the witness should be excused, the Court shall consider whether the public interest in having the evidence disclosed is outweighed by the public interest in preserving the confidence given, and should particularly take into account:
- the significance of the information in determining the issues to be determined
- the nature of the special relationship and confidence given
- the likely effect of the disclosure

[33] New Zealand courts have recognised that this provision applies to a journalist’s relationship with a source. A recent High Court case has affirmed that in this balancing exercise the public interest in protecting sources is high, and it will only be in a special case that disclosure will be compelled.¹

[34] It is also noteworthy that the Evidence Bill, currently before the Justice and Electoral Select Committee, specifically recognises the special relationship between a journalist and source. Clause 64 of the Bill states (in summary):

The starting point is that when a journalist has promised not to reveal an informant’s identity, he or she will not be compelled to disclose it
A High Court judge can order disclosure if satisfied that the public interest in disclosure outweighs:
- any likely adverse effect of the disclosure on the informant or other person
- the public interest in the communication of facts and opinion to the public by the news media, and the ability of the news media to access sources of facts.

[35] In light of these principles, even if the Authority were to conclude that the information was “necessary”, it would still have to determine whether public interest in the disclosure of the interviewee’s identity outweighed the public interest in allowing the media to preserve the confidentiality of its sources.

[36] For the same reasons as expressed in paragraphs [27] and [28] above, the Authority concludes that in the circumstances of this particular case, the public interest in allowing RNZ to protect its source outweighs the public interest in the disclosure of that information. While clearly there is a public interest in facilitating a complainant’s rights to pursue a complaint under the Broadcasting Act, the factors noted above suggest that in the particular circumstances of this case, that interest is insufficient to require disclosure.

[37] Weighed against the considerable public interest in allowing the media to broadcast information from anonymous sources – especially in cases of high public interest involving elected representatives – the Authority concludes that there would be no basis to order the disclosure of the interviewee’s identity.

[38] Accordingly, the Authority concludes that RNZ may provide the field tape of the interview, removing references that could identify the interviewee.

Pre-broadcast documentation

[39] Mr Benson-Pope has asked for copies of “research notes, file notes, minutes, and all other material relevant to the broadcast of the interview”.

[40] The Authority acknowledges the Court of Appeal’s finding in Comalco that pre-broadcast material may be relevant to the issue of balance, as it could provide evidence of the way in which material had been selected for broadcast. The Authority considers, however, that the present case is outside the range of situations to which that principle could reasonably be applied. The programme at issue in this case is an edited interview with a single subject, rather than a scripted current affairs programme carefully constructed from a range of sources. In these circumstances, the Authority considers that the field tape of the interview will be sufficient to address any questions surrounding the selection of material for broadcast.

[41] For this reason, the Authority considers that the pre-broadcast material sought is not required for the effective determination of the complaints.

Emails received subsequent to the broadcast

[42] Mr Benson-Pope’s final request is for copies of all emails received by RNZ subsequent to the broadcast.

[43] On a number of occasions following the broadcast, on the same Nine to Noon show, the host read out emails from listeners communicating their views about the interview in question. The host made it clear that the vast majority of the emails received were supportive of Mr Benson-Pope and condemned the interviewer, the interviewee, and the interview as a whole. The host read out a number of the critical emails, and then made an exaggerated effort to locate an email that was positive about the interview.

[44] There is no doubt, in the view of the Authority, that listeners would have appreciated that overwhelmingly, other listeners were highly critical of the broadcast.

[45] The Authority considers that the additional un-broadcast emails would not assist Mr Benson-Pope’s arguments. Producing all the emails would demonstrate the exact number of emails that were supportive of him, and what they said. But in circumstances where the host made it abundantly clear that almost all the emails strongly supported Mr Benson-Pope – and indeed read out a significant number – the Authority considers that this would not advance its consideration of his complaint.

[46] For these reasons, the Authority considers the emails are not necessary for the effective determination of the complaint, and declines to order their production.

For the above reasons the Authority declines the complainant’s request, pursuant to section 12 of the Broadcasting Act 1989, for production of:

all relevant pre-broadcast records and documents
copies of all emails received by the programme after the show was broadcast
the identity of the interviewee

It declines to determine the complainant’s request for production of the field tape in light of RNZ’s offer to produce a copy.

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 September 2005

Appendix

The Authority considered the following correspondence in determining this complaint:

The Hon David Benson-Pope’s formal complaint – 13 May 2005
Mr Benson-Pope’s confirmation of formal complaint – 16 May 2005
RNZ’s acknowledgement of the formal complaint – 18 May 2005
RNZ’s decision on the formal complaint – 14 June 2005
Mr Benson-Pope’s referral to the Authority – 13 July 2005
RNZ’s submissions on Mr Benson-Pope’s requests for production of additional material – 28 July 2005
Further correspondence from Mr Benson-Pope – 9 August 2005
Further correspondence from RNZ – 17 August 2005
Further correspondence from Mr Benson-Pope – 25 August 2005
Further correspondence from RNZ – 30 August 2005
Further correspondence from Mr Benson-Pope – 31 August 2005

¹R v Cara & Kelman, Unreported, High Court Auckland, 2 June 2004, CRI 2004-004-006560

Robinson and Television New Zealand Ltd - ID2005-082

Wed, 28 Sep 2005 00:00:00 +1200

INTERLOCUTORY DECISION

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory applications for production of field tapes – documentary entitled Monster of Berhampore about alleged child abuse in Berhampore Children’s Home – complainant alleging programme unbalanced – seeking disclosure of additional material not broadcast by TVNZ

Decision on interlocutory application
Field tapes not required to determine relevant issues – applications declined – Authority will seek submissions on substantive issues

This headnote does not form part of the decision.

Background

[1] At 7:30 pm on 1 May 2005, during Sunday, Television New Zealand Ltd broadcast an item entitled The Monster of Berhampore. The subject of the item was Walter Lake, who during the 1950s and 1960s had run the Berhampore Children’s Home in Wellington.

[2] The documentary interviewed a number of former residents of the home who alleged that Mr Lake had sexually abused them. The programme also revealed that a former deaconess of the Presbyterian Church, Mavis van Dalen, had on three occasions told Church authorities of the allegations, and yet no action was taken.

[3] Brian Robinson complained to TVNZ that the programme breached standards 2 (law and order), and 4 (balance) of the Free-to-Air Television Code of Broadcasting Practice.

Law and order

[4] Mr Robinson alleged that the programme was premised on the assumption that Mr Lake was guilty, contrary to the fundamental principle of “innocent until proven guilty”.

Balance

[5] Mr Robinson also maintained that the programme was unbalanced and partial in that it failed to address the possibility that Mr Lake was in fact innocent.

[6] TVNZ did not uphold the complaint, and Mr Robinson referred the matter to the Authority.

Mr Robinson’s Procedural Requests

[7] On referring the matter to the Authority, Mr Robinson requested that the Authority require TVNZ to produce:

the field tape of the interview with Mavis van Dalen
the field tape of the interview with Presbyterian Support representative Trevor Roberts
the field tapes of all other interviews.

[8] The reasons for these requests were as follows:

Tape of interview with Mavis van Dalen

[9] Mr Robinson expressed concern that the evidence of Mavis van Dalen was presented as being a “revelation”, in that she was presented as an additional witness to the alleged abuse. Mr Robinson argued that, at most, Ms van Dalen could provide hearsay evidence about the alleged abuse, and that her evidence was therefore of limited value to the investigation.

[10] Mr Robinson maintained that the full tape of Ms van Dalen’s interview was needed in order to assess whether TVNZ had known that she was never an additional witness to the alleged abuse. Only then, he argued, could the Authority assess whether TVNZ was being “deliberately dishonest and deceitful” in presenting her as such.

Tape of interview with Trevor Roberts

[11] Mr Robinson also expressed concern that despite the Presbyterian Support Services’ representative, Trevor Roberts, expressing doubt as to the credibility of some of the complainants, the programme did not further explore this issue. Mr Robinson noted that Mr Roberts went into more detail on this issue during an interview on Radio New Zealand. He argued that it would have been a serious omission on TVNZ’s part to leave this information out of the item had Mr Roberts discussed it in his interview.

[12] The field tape was needed, Mr Robinson argued, to ascertain whether Mr Roberts provided such additional information, which was then ignored by TVNZ.

Tapes of other interviewees

[13] The other tapes were required, Mr Robinson argued, in order to establish whether there was sufficient information available to the reporter to justify his belief that Walter Lake was guilty.

Broadcaster’s Response to the Authority

[14] TVNZ opposed the release of the field tapes on the grounds that they are similar to a reporter’s notebook, and to request them would amount to an unwarranted interference in the editorial process.

Complainant’s Final Comment

[15] Mr Robinson disagreed with TVNZ, in that:

The BSA would not be interfering in the editorial process, but would simply be considering issues of fairness and accuracy
TVNZ did not have an unfettered right to free expression
the analogy with a journalist’s notebook was wrong.

[16] Mr Robinson concluded that the tapes were not central to his argument that the codes had been breached, but would instead provide evidence of the seriousness of the breach.

[17] Mr Robinson also suggested that if the Authority elected not to require the tape of the interview with Mr Roberts, it could nevertheless ask Mr Roberts to give evidence before the Authority.

Authority's Determination

[18] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the interlocutory applications without a formal hearing.

[19] The Authority has the power, under section 12 of the Broadcasting Act 1989 and sections 4B(1) and 4C(1)(b) of the Commissions of Inquiry Act 1908, to require parties to produce information or documents.

[20] The Authority has previously held, in Decision No. 2002-179, that the intent of these statutory provisions is to allow the Authority to require the production of evidence only if that evidence is necessary to enable the Authority to deal effectively with the subject of the complaint. Applicants will be expected to make a compelling argument for the production of the material. These are the principles the Authority applies in the present case.

[21] The complainant has requested that the Authority require TVNZ to produce field tapes of all the interviews conducted in preparing the programme. In particular, he requested tapes of the interviews with Mavis van Dalen and Trevor Roberts. The Authority deals with each of the requests separately.

Mavis van Dalen

[22] The complainant says that the field tape of the interview is necessary because the programme presented Ms van Dalen as being an additional witness to the alleged abuse. He asserts that the field tape of Ms van Dalen’s interview would confirm whether this stance was justified.

[23] The Authority does not agree that the programme suggested Ms van Dalen was a witness to the abuse. The programme instead reported that Ms van Dalen had, on a number of occasions, notified a senior Church figure of the allegations made by some former residents of the home, but that nothing was done in response.

[24] In light of Ms van Dalen’s role in the programme, Mr Robinson’s argument for the production of the field tape does not succeed. The Authority considers that there is no need to see the tape in order to deal effectively with the relevant issues.

Trevor Roberts

[25] Mr Robinson argued that the Authority needed to view a field tape of the interview with Mr Roberts to determine whether he made further allegations damaging the credibility of the alleged abuse victims. If he did, Mr Robinson claimed, the Authority would need to consider whether TVNZ’s failure to broadcast this material affected the balance of the programme.

[26] Again, the Authority does not agree. It is clear from the programme that the reporter directly asked Mr Roberts to elaborate on his comment about the credibility of some complainants. He refused to. In these circumstances there is no need to go to the field tape to ascertain what Mr Roberts said. He made it clear in what was broadcast that he intended to make no further comment in relation to that issue.

Other field tapes

[27] Finally, the complainant submitted that the Authority should consider the field tapes of all interviews, as this would enable it to determine whether the reporter had a sufficient factual basis for his view that Mr Lake was guilty of the abuse alleged.

[28] A complainant requesting production of field tapes to assess a programme’s balance needs to make a persuasive case that the tapes may contain information relevant to the Authority’s determination.

[29] In the present case, the complainant asserts that the programme’s assumption of Mr Lake’s guilt may be shown to be unfounded in light of the information in the field tapes. Mr Robinson has not, however, provided any detail regarding what this additional information might be or how it might affect the programme’s conclusions. His application is entirely speculative.

[30] In this regard the Authority also notes TVNZ’s advice that Mr Lake’s family – the people the Authority considers most likely to have supported Mr Lake – chose not to participate, and would thus not have been on the field tapes.

[31] In these circumstances, when it has no information or argument before it tending to establish the relevance of the material requested, the Authority sees no basis on which to require production of all the field tapes.

For the above reasons the Authority declines the complainant’s request, pursuant to section 12 of the Broadcasting Act 1989, for production of:

the field tape of the interview with Mavis van Dalen
the field tape of the interview with Trevor Roberts
the field tapes of all other interviews conducted in preparing the programme.

[32] The Authority will now seek further submissions from the parties on the substantive issues before determining the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 September 2005

Appendix

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

Brian Robinson’s formal complaint to Television New Zealand Ltd – 26 May 2005
TVNZ response to formal complaint – 13 June 2005
Mr Robinson’s referral to the Authority – 11 July 2005
TVNZ’s response (including on interlocutory issues) – 8 August 2005
Mr Robinson’s final submission on interlocutory issues – 17 August 2005

Wakeman and Television New Zealand Ltd - ID2004-154

Thu, 04 Nov 2004 00:00:00 +1300

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory applications for disclosure of additional material and formal hearing – complainant complained about total of seven programmes on TVNZ concerning Te Tai Hauauru by-election and Māori Party

Decision on interlocutory applications
Request for production of additional information – not required in order for Authority to determine complaints – declined

Request for formal hearing – not required in all circumstances of case – declined

This headnote does not form part of the decision.

Factual Background

[1] Peter Wakeman stood as an independent candidate in the 2004 by-election in the Te Tai Hauauru electorate, which was required following the resignation of the Hon Tariana Turia from the Labour caucus.

[2] Mr Wakeman polled fourth of six candidates in the by-election, receiving 80 votes. He came in behind another independent, Tahu Nepia (183 votes), Dun Mihaka of the Aotearoa Legalise Cannabis Party (197 votes) and Tariana Turia (7,256 votes).

Complaints

[3] Mr Wakeman has complained about a total of seven programmes shown on TV One. All of his complaints concern either the coverage of the by-election on TV One or the coverage given to the emergent Māori Party at this same time.

[4] Mr Wakeman complained to Television New Zealand Ltd, the broadcaster, about the following programmes:

[5] One News, 15 June. This was an item on the forthcoming by-election. The item noted that five candidates were opposing Ms Turia, and played a very brief clip of the Aotearoa Legalise Cannabis Party candidate. Mr Wakeman alleged that the item breached Standard 4 (balance) of the Free-to-Air Code of Broadcasting Practice, in that:

only one candidate was interviewed
Tariana Turia was pictured, with the comment that she was the presumed winner
it discriminated on the basis of race as only Māori candidates were shown
TVNZ was attempting to influence the course of the by-election.

[6] Te Karere, 15 June 2004. This item focussed on the launch of the Māori Party. Mr Wakeman alleged that the item breached Standard 4 (balance) of the Free-to-Air Code of Broadcasting Practice, in that it:

showed pictures of Tariana Turia, but not pictures of other candidates
showed the Māori party free phone number.

[7] One News, 20 June and 9 July 2004; Eye to Eye, 1 July 2004; Marae, 4 July 2004; and Te Karere, 7 July 2004. These programmes contained the following:

One News on 20 June contained an item on the latest Colmar Brunton opinion poll (in relation to national politics, not the by-election) which featured the Māori party for the first time
One News on 9 July contained an item on the likely position of the Māori party in relation to prospective coalition parties following the next general election
Eye to Eye contained a discussion among presenter Willie Jackson, MP John Tamihere, the Māori Party’s co-leader Pita Sharples, political commentator Chris Trotter and National Business Review journalist Deborah Hill Cone, focussing largely on the likely extent of Tariana Turia’s predicted majority in Te Tai Hauauru
Marae contained, in the “Pānui” (announcements) section at the end of the show, an announcement that the launch of the Māori Party would take place the following weekend, and gave the 0800 number for the party
Te Karere contained an item on Peter Wakeman and his campaign for the Te Tai Hauauru seat.
[8] Mr Wakeman alleged that the above items breached Standard 2 (law and order), Standard 4 (balance), Standard 5 (accuracy), Standard 6 (fairness) and Standard 8 (programme information) of the Free-to-Air Television Code of Broadcasting Practice. In particular, he alleged the programmes:
breached the balance standard by effectively covering only one party standing in the by-election (the Māori Party)
breached the law and order standard, as he was not given the right to express his political position on the programme, contrary to the Bill of Rights and because his words were not allowed to remain un-translated on Te Karere (referring to Guideline 2a)
breached the balance standard as TVNZ appeared to be camouflaging the fact that he was a Labour party member, as the Labour party had not formally put up a candidate in the by-election
breached the accuracy standard as the programmes did not mention that he was standing in the by-election
breached the fairness standard as Māori candidates were given more coverage than Pakeha
breached the programme information standard as TVNZ was favouring the Māori party (guideline 8d).

[9] TVNZ declined to uphold all of Mr Wakeman’s complaints. Mr Wakeman, dissatisfied with TVNZ’s decision, referred his complaints to the Authority.

Mr Wakeman’s Procedural Requests

[10] Mr Wakeman, after referring his complaints to the Authority, made two requests. First, he requested the Authority to exercise its powers under section 12 of the Broadcasting Act to require production of all the following material:

all by-election coverage on TV One from 16 May to 11 July 2004, including Te Karere, Breakfast, Midday, One News, Holmes, Tonight, Eye to Eye and Marae
all by-election coverage on Radio New Zealand and Māori Television from 16 May to 11 July 2004
a record from TVNZ of all the telephone calls he made to TVNZ
copies of all correspondence between him and TVNZ
copies of the transcripts TVNZ obtained from other media that complained about TVNZ’s coverage of the by-election, including talkback radio
media releases and conversations from all candidates, parties and the government concerning the by-election, the polling booths, and “policy”
copies of the teletext news that was displayed on page 102
all coverage of the Māori Party and its formation.

[11] Second, Mr Wakeman requested the Authority to convene a formal hearing to hear all of his complaints.

[12] The Authority considered it appropriate for these two requests to be dealt with together.

Request for Production of Additional Material

[13] Section 12 of the Broadcasting Act enables the Authority to exercise powers under the Commissions of Inquiry Act 1908. The relevant provision of that legislation is section 4C(1) which provides:

(1) For the purposes of the inquiry the Commission … may:

(a) Inspect and examine any papers, documents, records, or things;

(b) Require any person to produce for examination any papers, documents, records, or things in that person’s possession or under that person’s control, and to allow copies of or extracts from any such papers, documents or records to be made;

(c) Require any person to furnish, in a form approved acceptable to the Commission, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents or records as aforesaid.

[14] In support of his application, Mr Wakeman submitted that the Authority needed to see the “lead in period” because it demonstrated that the programmes he complained of had “change[d] course”, that they were “going outside of a news and/or current affairs program[me]” and were “giving political party/candidate broadcast[s] that [were] free for Tariana Turia/Maori Party”.

Request for Formal Hearing

[15] Mr Wakeman did not advance detailed reasons for holding a formal hearing, other than to note that one was required because “TVNZ have not taken on board my early phone calls and letters to correct their broadcasts”. Mr Wakeman also noted that he wished to produce additional evidence at the hearing and that he wished to question “some TVNZ staff” although he did not provide details.
TVNZ’s submissions regarding procedural requests

[16] TVNZ did not agree either that production of the additional material or a formal hearing was required. In relation to the request for the production of additional material, it noted:

Mr Wakeman considers that our News and Current Affairs programmes, and some others such as Eye to Eye and Marae, should have featured him more extensively in stories covering the recent by-election and in stories concerning the emergence of the Māori Party. With respect to Mr Wakeman it is not TVNZ’s responsibility to provide free publicity for by-election candidates in its news, current affairs, and other factual programmes. It is the role of these programmes to report items of news, and provide a current affairs perspective on matters of current interest to viewers. The rise of the Maori Party was clearly one such matter, and remains so with weekend polls suggesting that it could gain a number of extra seats to that already held by Tariana Turia MP.

[17] TVNZ concluded:

The quantity of additional material Mr Wakeman considers the Authority should order TVNZ to produce is clearly not required, and will not assist the Authority in considering these complaints. We do not dispute that Mr Wakeman did not appear in many of the items he refers to.

[18] In relation to the request for a formal hearing TVNZ submitted that all the information required to enable the Authority to determine the complaints could be provided in written form. TVNZ noted that there was no conflict of evidence to necessitate examining witnesses in person.

Complainant’s Response to the Authority

[19] In response to TVNZ’s submissions, Mr Wakeman informed the Authority that he had made a number of requests under the Official Information Act 1982, to agencies such as Te Mangai Paho, Radio New Zealand and New Zealand On Air, and that he “did not wish to respond until the additional material requested is considered by the Ombudsmen”. He made no further elaboration as to what information had been sought or in what way it was relevant to the procedural requests he had made of the Authority.

[20] The Authority did not agree that consideration of these procedural matters needed to be delayed until such time as Mr Wakeman’s requests for the production of official information had been considered by the Office of the Ombudsmen. There was no information before the Authority to suggest that the two matters were linked, and accordingly the Authority proceeded to consider the two requests from Mr Wakeman, for production of additional material and for a formal hearing.

Authority's Determination

[21] The members of the Authority have viewed tapes of all the broadcasts complained about, and read the correspondence listed in the Appendix.

Request for production of additional material

[22] Mr Wakeman has requested the production of extensive additional material, upon grounds which can only be described as vague. His request appears to be predicated on the basis that during the period leading up to the by-election, TVNZ had little coverage of Mr Wakeman personally, in contrast to considerable coverage of the Māori Party and Māori candidates contesting the by-election.

[23] The Authority may require production of additional material only in the event that the material is required in order to properly determine a complaint, which must be about an individual broadcast.

[24] In the present case, Mr Wakeman appears to be requesting the additional material for the purpose of demonstrating a pattern of TV One’s overall coverage of the by-election favouring Māori candidates and the Māori Party. The Authority considers that Mr Wakeman has provided no information to suggest that the additional material sought is relevant to the application of the Code of Broadcasting Practice to the seven individual broadcasts.

[25] Equality of coverage of political candidates is not an issue in respect of which the Authority has jurisdiction – as it is not covered by the Code of Broadcasting Practice – and it is not relevant to the Authority’s assessment against the nominated broadcasting standards of the seven broadcasts Mr Wakeman has complained about.

[26] Furthermore, having reviewed Mr Wakeman’s complaints and having viewed the broadcasts complained of, the Authority considers that it has more than adequate information to assess the individual broadcasts against the nominated broadcasting standards. It does not consider that additional material is required.

[27] For these reasons, the Authority declines the complainant’s request to order production of additional material.

Request for formal hearing

[28] Mr Wakeman has also requested the Authority to convene a formal hearing in respect of his complaints. His reasons for requesting a formal hearing appear to be predicated on a concern that up until this point, TVNZ has not responded appropriately to his complaints.

[29] It is the usual practice of the Authority to determine complaints on the papers, after both complainant and broadcaster have been given appropriate opportunity to make submissions. In adopting that general practice, the Authority has regard to section 10(2) of the Broadcasting Act 1989, which states that complaints should be determined with “as little formality and technicality” as is permitted by the Broadcasting Act, the proper consideration of the complaint and the requirements of natural justice.

[30] However, the Authority has no formal policy not to hold hearings, and faced with an appropriate case would undoubtedly convene one.

[31] The question for the Authority in determining a request for a formal hearing is whether hearing the parties would assist the Authority in determining the complaint. In assessing this question, the Authority may take into account the following matters:

Whether there are any complex issues of fact that could best be understood by hearing witnesses.
Whether there are issues of credibility of witnesses that can best be determined by examining them in person.
Whether the complaint concerns complex legal issues that can best be addressed through oral submissions and argument, and the questioning of parties or their legal counsel.
Whether the issues under consideration are matters of broad principle or general public interest.
Whether there are special circumstances relating to the complainant meaning that they cannot fairly be expected to make submissions in writing.

[32] The Authority does not consider that any of these grounds apply to the present case. Mr Wakeman’s complaints do not involve complex issues of fact, and there appears to be little, if any, discrepancy between the parties as to the relevant issues of fact.

[33] Nor do the complaints concern complex legal issues that require oral submissions, argument or discussion; to the contrary, the Authority considers the issues for determination are apparent, and involve application of the relevant Code of Broadcasting Practice to the broadcasts complained of rather than any wider or more complex legal issues.

[34] While the by-election itself was a matter of considerable public interest, the Authority does not consider that the complaints in the present case raise important matters of general principle about broadcasting standards such that a hearing of these issues is required.

[35] Finally, there appear to be no circumstances relating to the complainant suggesting that he is unable to present written submissions in support of his complaint. The Authority notes that to date Mr Wakeman has made lengthy submissions in writing in relation to his complaints.

[36] For the above reasons, the Authority does not consider that this is a case in respect of which a formal hearing is required. The Authority is satisfied that the issues for consideration can be appropriately and fairly addressed through written submissions.

For the above reasons declines the complainant’s request for:

(a) production of additional material pursuant to section 12 of the Broadcasting Act 1989; and

(b) a formal hearing of his complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 November 2004

Appendix

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

1 Peter Wakeman’s first formal complaint to Television New Zealand Ltd – 16 June 2004

2 Mr Wakeman’s second formal complaint to TVNZ – 6 July 2004

3 Mr Wakeman’s third formal complaint to TVNZ – 22 July 2004

4 TVNZ’s acknowledgement of first formal complaint – 17 June 2004

5 TVNZ’s response to first formal complaint – 7 July 2004

6 TVNZ’s response to second formal complaint – 26 July 2004

7 TVNZ’s response to third formal complaint – 20 August 2004

8 Mr Wakeman’s first referral to the Authority – 3 August 2004

9 Mr Wakeman’s second referral to the Authority – 23 August 2004

10 Mr Wakeman’s additional letter to the Authority (relating to first referral) – 4 August 2004

11 TVNZ’s response to the first referral – 18 August 2004

12 TVNZ’s response to the second referral – 9 September 2004

13 Mr Wakeman’s formal requests for production of additional material and formal hearing (relating to all complaints) – 1 September 2004

14 TVNZ’s submissions on Mr Wakeman’s requests for production of additional material and formal hearing (relating to all complaints) – 6 September 2004

15 Further correspondence from Mr Wakeman (relating to all complaints) – 9 September 2004

16 Further correspondence from Mr Wakeman (relating to all complaints) – 17 September 2004

The Prime Minister (Rt Hon Helen Clark) and Mike Munro and TV3 Network Services Ltd - ID2003-025, ID2003-026

Tue, 01 Apr 2003 00:00:00 +1200

Complaint
3 News Special – interview with Prime Minister broadcast on 10 July– canvassed allegations in "Seeds of Distrust" by Nicky Hager published that day – claimed that Government was aware of accidental distribution of GM contaminated seeds – unfair and inaccurate – application by broadcaster for hearing

Findings
Application declined

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

The Background

[1] Detailed claims from the book "Seeds of Distrust", written by Nicky Hager and published on 10 July, were put to the Prime Minister by interviewer John Campbell during a 3 News Special broadcast at 7.00pm on the same day. The interview had been recorded the previous day (9 July). The book, which was not mentioned during the interview, alleged that the Government was aware of the accidental distribution of GM contaminated seeds and had allowed the seeds to be grown, harvested and processed.

[2] In his own right and on behalf of the Prime Minister, Mike Munro, the Prime Minister’s Chief Press Secretary, complained to TV3 Network Services Ltd, the broadcaster, that the Prime Minister had not been treated fairly during the arrangements for and during the interview. They also complained that the interview, in advancing allegations in the book as facts, breached the standard requiring accuracy. When TV3 declined to uphold the complaints, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[3] A number of procedural issues have been raised following the referral and the Authority has not yet determined the complaints. This Interlocutory Decision responds to the most recent matter raised by the broadcaster.

The Broadcaster’s Application

[4] In a submission to the Authority dated 7 March 2003 referring specifically to the complaints from the Prime Minister and her Chief Press Secretary, TV3 expressed the opinion that the complaints raised "complex issues of fact and law". The factual issues, TV3 continued, related to confidentiality and accuracy, and the legal issues involved the interpretation and application of broadcasting standards, and the interface with the freedoms contained in the New Zealand Bill of Rights Act 1990.

[5] TV3 referred to the principles relating to hearings enunciated in Interlocutory Decision No: 2002-159 when the Authority declined an application from a complainant (Wakefield Associates) for a hearing in regard to its complaint about a broadcast by TVNZ.

[6] Expanding on its application for a hearing to deal with the factual issues in dispute, TV3 argued that a hearing was essential, and not to hold a hearing would amount to a breach of natural justice. TV3 acknowledged that the parties had made written submissions in regard to the legal issues, but contended that oral submissions were "a more satisfactory way" for the issues to be examined.

The Complainants’ Response

[7] Counsel for the Prime Minister and her Chief Press Secretary responded to TV3’s arguments in a submission dated 12 March. The submission began by noting that it was not until some nine months after the broadcast that TV3 had proposed a hearing. It then argued that the application failed to provide any particulars, that there was very little factual conflict involved in the complaints, and submitted that a hearing was not necessary.

[8] Counsel provided a chart which recorded that, on receipt of the Authority’s recent letter, 244 days had elapsed since the broadcast. He then explained that 5 days were not attributable to any party, 61 to the "necessary processes" of the Authority, 36 to the time taken by the complainants and 145 "to the actions (and inactions) of TV3". He contended that the complaints were overdue for decision but that TV3 had repeatedly raised "new technical objections".

[9] Expressing the view that there was no benefit in presenting oral legal submissions when the matters had been covered fully in writing, counsel raised the question of how the obligations of natural justice would be met unless each of the other five people who had complained about the programme also participated in the hearing.

The Authority’s Determination

[10] While it has been the Authority’s practice to determine complaints without a hearing, it has no policy not to hold hearings. It has found from its experience that the determination of complaints on the papers usually enables parties to adduce all the evidence they wish to present. Indeed, as an aspect of each determination, the Authority considers whether the parties have had an adequate opportunity, by the use of papers, to put all relevant and necessary material before the Authority. In the Authority’s view, unless there are relevant factual issues in dispute, the determination of complaints on the papers is appropriate and competent.

[11] In its general practice of determining complaints on the papers, the Authority has had regard to the provision in the Broadcasting Act (s.10(2)) that it should perform its complaints determination function with "as little formality and technicality" as permitted by the Act, having regard to the principles of natural justice. Although the Authority has the power to convene a formal hearing, it has noted (for example in Decision No: 2002-159) that it reserves the exercise of this power for occasions when hearing the parties would assist the Authority in the determination of the complaint.

[12] TV3 has argued that a hearing is necessary in this instance to deal with complex legal and factual issues.

[13] The Authority does not agree with TV3 that a hearing is necessary to deal with the issues raised by these complaints. It records that it has received comprehensive submissions from not only the complainants named above, but from all parties who have complained about the broadcast of the 3 News Special at 7.00pm on 10 July 2002. TV3’s responses have been equally comprehensive.

[14] The Authority notes that a number of procedural matters have been raised by TV3 since the referral of the complaints to the Authority and have been dealt with, respectively, in Interlocutory Decision Nos: 2002-157/158 (7 October 2002), Interlocutory Decision Nos: 2002-180/181 (7 November 2002), and Interlocutory Decision Nos: 2002-213-214 (17 December 2002). The Authority considers that it has dealt with the issues raised in a satisfactory manner.

[15] With regard to the complex issues of fact referred to in TV3’s application, the Authority is of the view that there are some matters of fact which it will not be able to determine, regardless of whether a hearing is held. As for the legal issues raised in the complaints, as recorded in the previous paragraph the Authority has been able to deal with those matters satisfactorily without the need for a hearing, and considers that it will continue to do so.

For the reasons above, the Authority declines the application for a hearing made by TV3 Network Services Ltd in regard to the complaints about the broadcast of a 3 News Special on TV3 at 7.00pm on 10 July 2002.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
1 April 2003

Decision Number 1994-009

Thu, 10 Mar 1994 00:00:00 +1300

Decision Number 1994-008

Mon, 21 Feb 1994 00:00:00 +1300

Summary Gone with the Wind starring Vivien Leigh and Clark Gable was screened by Television One at 8.40pm on 9 October. On behalf of the Rape Prevention Group in Christchurch, Ms Rhonda Findlay complained to Television New Zealand Ltd about the sexually violent attitudes which the film encouraged. In particular, she referred to the scene in which the husband (Rhett Butler) carries his wife (Scarlett) upstairs in order (the audience presumes) to force sex upon her, and the following scene which shows Scarlett awake happy and singing the next morning. The Rape Prevention Group said that sequence of events breached the broadcasting standards by glamorising violent and now illegal behaviour. Pointing out that the famous sequence was made more that 50 years ago, TVNZ argued that the film should be seen as a classic historical narrative. While the behaviour displayed was not now acceptable, TVNZ said that context had to be taken into account and declined to uphold the complaint. Dissatisfied with TVNZ's response, on the Group's behalf Ms Findlay referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. For the reasons given below, the Authority declined to uphold the complaint. Decision The members of the Authority have viewed the part of the programme complained about and have read the correspondence (summarised in the Appendix). As is its practice, the Authority has determined the complaint without a formal hearing. Concern that television was partly responsible for sexually violent attitudes towards women was the reason for a complaint to TVNZ about the broadcast of a scene in the film Gone With the Wind. On behalf of the Christchurch Rape Prevention Group, Ms Rhonda Findlay complained about the scene when Scarlett O'Hara awoke in the morning, happy and singing, after apparently being raped by her husband, Rhett Butler, the night before. Arguing that Scarlett's reaction glamorised unacceptably violent behaviour, Ms Findlay maintained that it breached standard V11 of the Television Code of Broadcasting Practice. It reads: V11 Any realistic portrayal of anti-social behaviour, including violent and serious crime and the abuse of liquor and drugs, must not be shown in a way that glamorises the activities. In declining to uphold the complaint, TVNZ did not argue that a strict interpretation of the standard might have arrived at the contrary conclusion. Rather, it noted that the scene was a famous one in one of the greatest movies ever made. Moreover, the film had been made more than 50 years ago when relationships between men and women, both within and outside of marriage, were "less developed" than they were currently. Moreover, great works of art often contained judgments which were unlikely, now, to gain universal approval. However: Great works of art are recognised for what they are, and for the insight they provide into the time to which they refer. In conclusion, TVNZ considered that the film should be seen as a "classical historical narrative" and any act of censorship would amount to "cultural vandalism". The Authority understood the motivation for the complaint. As was recognised by the recent change in the law which made the act illegal, marital rape has become acknowledged as an unacceptable display of violence. As the complainant pointed out, Scarlett's pleasurable reaction could be seen to contribute to the erroneous view that women enjoy being raped. However, the Authority did not accept that this acknowledgment meant that the complaint should be upheld. First, the standard applies to a "realistic" portrayal of violent behaviour and the Authority considered the scene complained about could not be so described. Scarlett O'Hara, it believed, was at times presented as a caricature in a fantasy and her performance, for example her lack of resistance to Rhett's actions, suggested that she had not acted in a natural way. Secondly, even if the portrayal was deemed realistic, the Authority noted the lengthy introduction to the section of the standards relating to violence in the Codes of Broadcasting Practice Television which contains the following statement: Context is all important and includes such things as programme type, likely audience, time of day and less tangible factors relating to prevailing community attitudes and values. While the Authority was not prepared to agree with TVNZ that the longevity of the work in question in itself might be a sufficient reason not to apply the standards strictly, it was prepared to examine the scene complained about in the context. In context, including the tempestuous on-going relationship between the two central characters as well as Scarlett's erratic behaviour, the Authority accepted that the scenes complained about - a very short segment of a lengthy movie - had a place in the story's development. The continuing undoubted influence of the film was considered and, specifically, whether the actions of the two leading characters could be seen as models for behaviour today. While accepting that it was not possible to eliminate entirely any current influence, the Authority decided that more modern social influences would have more effect than these scenes from a classic film made in the 1930s about the American civil war in the 1860s. For the reasons set forth above, the Authority declines to uphold the complaint. Signed for and on behalf of the Authority Iain Gallaway Chairperson 21 February 1994

Decision Number 1994-007

Mon, 21 Feb 1994 00:00:00 +1300

Summary The controversy aroused by an incident which occurred during a course conducted for the Excellerated Learning Institute was the subject of an item broadcast on Holmes on 4 October 1993 between 6.30 - 7.00pm. Business Innovation Group's Managing Director, Mr Baruhas, complained to Television New Zealand Ltd that the item was subjective, unbalanced, failed to deal fairly with the issue or with the course leader and was accordingly in breach of broadcasting standards. In response, TVNZ argued that the allegations made by one of the course participants required a full investigation. It denied that the item lacked balance, pointing out that the course leader was given the opportunity to respond to each matter raised, and further, that the requirement for impartiality did not preclude investigating a matter of public concern. It declined to uphold the complaint. Dissatisfied with that decision, Business Innovation Group referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. For the reasons given below, the Authority declined to uphold the complaint. Decision The members of the Authority have viewed the programme complained about and have read the correspondence (summarised in the Appendix). As is its practice, the Authority has determined the complaint without a formal hearing. An item on Holmes broadcast on 4 October 1993 between 6.30 - 7.30pm investigated an incident which it was admitted occurred at one of the courses conducted for the Excellerated Learning Institute. Amateur video footage of the incident showed a woman participant being subjected to disparaging remarks by the course leader (Mr Kiyosaki) and other participants. The item, in addition to giving background information on the motivational courses and the teaching methods employed, investigated the incident and included comment and an apology from Mr Kiyosaki as well as comment from the woman concerned and a psychologist. The New Zealand agents for the Excellerated Learning Institute, Business Innovation Group, complained to Television New Zealand Ltd that the item was unbalanced, unfair in its portrayal of Mr Kiyosaki and lacking in objectivity. TVNZ reported that it had assessed the complaint under the standards nominated by Business Innovation Group. The first two require broadcasters: G4 To deal justly and fairly with any person taking part or referred to in any programme. G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature. The other nominated standards provide: News, Current Affairs and Documentaries G14 News must be presented accurately, objectively and impartially. G19 Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed. G20 No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, and this can be done only by judging every case on its merits. Commenting first on the background to the item TVNZ noted that an earlier Frontline programme had focused on the dissatisfaction of one course participant with the teaching methods and that Mr Kiyosaki had not been able to respond to the criticisms made because he was out of the country. On his return, TVNZ was advised that he was available to answer the allegations made in that programme, and consequently the Holmes item was prepared. At the outset, TVNZ explained that the purpose of the item was to explore with Mr Kiyosaki personally the claim that the courses at times went beyond teaching and came close to brainwashing and abuse. It argued that it believed it was in the public interest to reveal the facts about the teaching methods and the content since some government departments were sending employees on the courses. To B.I.G.'s argument that the story was unfair because it arose from a single complaint and did not acknowledge the "several thousand satisfied participants in New Zealand", TVNZ responded that the serious allegation made justified a full investigation. It argued that the fact that the majority of participants were satisfied was irrelevant because that did not alter the fact that one participant was unhappy with the course. Noting that the programme did acknowledge that many were satisfied with the courses, TVNZ maintained that it was justified to focus on the allegations of abuse. TVNZ rejected the complaint that standard G4 had been breached, noting that Mr Kiyosaki had been given the opportunity to respond point by point to the matters raised by his accuser. It believed he had been treated justly and fairly because he had been given the opportunity to comment on each matter raised. The Authority was inclined to the view that Mr Kiyosaki had been given adequate opportunity to respond to the allegations made. It noted that he acknowledged and apologised for the incident at the outset and later in the item attempted to explain its context and to point out that this was an isolated complaint. Contrary to B.I.G.'s view of the item, the Authority considered that the impression given was that Mr Kiyosaki was a popular figure and that many people were happy with the courses. It concluded that Mr Kioysaki was dealt with justly and fairly and declined to uphold this aspect of the complaint. Turning to the standard G6 complaint that the item was lacking in balance, TVNZ repeated its arguments above, pointing out that the accusations were balanced by Mr Kiyosaki's responses and by the observation that many people found the courses rewarding. In its assessment of the balance aspect of the complaint, the Authority began by examining the overall theme of the item, concluding that it was confined to an investigation of the incident at the course in which a woman was verbally abused and included Mr Kiyosaki's interpretation and explanation of the events as they were revealed in the amateur video footage shown. It did not agree that in order for balance to be achieved it was necessary to include interviews with satisfied participants. The Authority decided that it was clear from the programme that the allegation made was unusual and it was equally clear that many people do find the courses rewarding. Although the item did not give an extensive insight into the Institute's philosophy and teaching methods, Mr Kiyosaki was given the opportunity to apologise and to comment on the context of the remarks. The Authority concluded that no breach of standard G6 occurred. In its response to the complaint that the item breached standard G14, TVNZ argued that the requirement for objectivity and impartiality did not preclude the broadcaster from drawing attention to a matter of public concern. It maintained that it was accurate, pointing to the amateur video footage which, it suggested, needed to be explained. The Authority was of the view that the balance component of standard G14 was subsumed by standard G6. In assessing the requirement for the item to be accurate, it did not believe that it was necessary to include interviews with satisfied participants in order to comply with the standard. As noted above, it considered that the theme of the item was confined to the incident which occurred in a course given more than two years previously and that the content of the video film was not in dispute. It declined to uphold this aspect of the complaint. TVNZ maintained that standard G19 was complied with because each accusation was matched with a response from Mr Kiyosaki and noted that the item was not a report on his courses, but was confined to an incident which occurred on one of his courses. In rejecting the standard G19 complaint, the Authority considered that there was no evidence that the original event or the overall views were distorted by the editing process. The final consideration was the complaint that standard G20 was breached because the item failed to present all significant sides in as fair a way as possible. TVNZ responded that Mr Kiyosaki was given the opportunity to comment on the claims made by "Yvonne", and that her allegations were supported by comments from a woman who had worked for the Excellerated Learning Institute previously. It considered that the comment from the psychologist, Michael Marris, was valid since he had encountered others who had been on similar courses and was therefore in a position to make comparisons and to offer professional comment. TVNZ declined to uphold the standard G20 complaint. The Authority considered that standard G20 could on this occasion be subsumed under standard G6. It believed that although the item did give the impression that the woman had been treated badly at the course, Mr Kiyosaki had apologised publicly as well as privately to her and the incident would have been seen as an isolated one. It again noted that the item included material which clearly indicated that Mr Kiyosaki was a charismatic and engaging personality and conveyed the obvious enthusiasm and enjoyment of people attending the courses. For the above reasons, the Authority declines to uphold the complaint. Signed for and on behalf of the Authority Iain Gallaway Chairperson 21 February 1994