Process
In 2006 the BSA released an Advisory Opinion explaining its approach to awarding costs to successful complainants. This paper is outlined below.
Advisory Opinion: Costs Awards
1. The Broadcasting Act 1989, empowers the BSA to award costs to a successful complainant:
… the Authority may, in any proceedings, order any party to pay to any other party such costs and expenses (including expenses of witnesses) as are reasonable, and may apportion any such costs between the parties in such manner as it thinks fit. (Section 16(1))
2. Costs awards made under s16(1) are primarily intended to cover a complainant’s legal costs. A complainant can, however, seek recompense for any costs that are directly associated with bringing the complaint.
3. The BSA is committed to ensuring consistency and transparency in respect of all its decisions. This advisory opinion is issued to inform broadcasters and complainants about the BSA’s approach when determining costs awards.
Principles
4. There are a number of principles relating to the award of costs upon which this policy is based.
Costs will be considered for successful complainants
5. The Authority will generally consider applications for costs from complainants whose complaints have been upheld, where those complainants have incurred costs or expenses directly associated with bringing a complaint before the BSA.
BSA may decide to award no costs in some circumstances
6. In some circumstances, however, the BSA may decide to award no costs to a successful complainant. An example of this could be when the complaint was one for which the complainant did not reasonably require legal advice.
Costs are not punitive
7. Costs are not intended to punish a broadcaster that has breached the broadcasting codes. Instead, the primary purpose of an award is to partially recompense a successful complainant for costs justifiably incurred in bringing a complaint.
Costs should be based on what is reasonable in the circumstances of the case, not what the lawyer has charged
8. The aim of a BSA costs award is to require the broadcaster to contribute a portion of the complainant’s reasonable costs. Costs must therefore be determined based on what is a reasonable contribution in the circumstances, rather than on what was actually charged by the lawyer.
Costs awards should usually provide partial recompense
9. The BSA would be out of step with other judicial or quasi-judicial bodies if it regularly made full costs awards. Accordingly, in the majority of cases in which costs are ordered, the BSA will award only a proportion of the costs incurred.
10. In light of the relative informality of the BSA’s process, and because complainants are not required to take legal advice to bring a complaint, the proportion of costs awards should be lower than for other more formal jurisdictions. For this reason, costs awards will be in the range of one-third of costs reasonably incurred.
11. There will, however, be circumstances in which an award calculated on that basis should be adjusted either up or down. These situations are discussed in more detail below.
Assessing the reasonableness of costs
12. In determining what constitutes reasonable costs in an individual case, the BSA will take into account a number of factors, including:
The complexity of the issues raised. Some issues – often concerning the privacy, fairness and balance standards – occasionally require complex legal analysis and argument. Cases which require detailed legal argument will reasonably incur higher costs than a straightforward complaint.
The number of the issues raised. Some complaints involve issues cutting across several broadcasting standards; issues of balance, fairness and accuracy are often closely related and are relevant to the same set of facts. Again, a complaint which requires argument in relation to several standards may involve costs greater than a complaint which raises a single issue.
The complexity of the factual background. Even if the legal issues for resolution are essentially simple, some cases involve a detailed and complex factual background. Analysis of such complaints can be time-consuming, and may reasonably result in increased time and cost.
The number of substantive submissions that needed to be made. In some cases, complainants might reasonably choose to respond in detail to an argument or evidence that a broadcaster provides during the process.
Whether the proceeding required resolution of any interlocutory or procedural issues.
Adjusting awards up
13. In some cases, the BSA may decide that an award of one-third of reasonable costs does not adequately reflect the circumstances of the case.
14. The BSA will consider adjusting awards up, to a sum greater than one-third of reasonable costs, in a number of circumstances, including where:
The complainant was personally and significantly affected by the broadcast complained of, and thus he or she was justified in seeking legal advice to protect his or her interests or reputation.
The complainant’s commercial interests were potentially significantly affected, again justifying recourse to legal advice.
The broadcaster has unreasonably and unnecessarily prolonged the proceedings.
15. Only rarely will the BSA consider making an award of 100% of reasonable costs. These cases will probably be limited to situations where the broadcaster had displayed a deliberate disregard for broadcasting standards to the detriment of the complainant.
Adjusting awards down
16. In other cases, the BSA may decide that one-third of reasonable costs represents an unreasonably high award.
17. The BSA will consider adjusting awards down, to a sum less than one-third of reasonable costs, in a number of circumstances, including where:
The complainant was successful in respect of only one or two relatively minor aspects of the complaint, but was unsuccessful in respect of the main aspects of the complaint.
The complainant had unnecessarily prolonged proceedings, or pursued arguments that were without merit.
BSA retains ultimate discretion
18. The above principles are intended to provide a guide to the principles the BSA will consider in determining the amount of a costs award. The BSA retains the right to determine costs awards at its discretion, taking into account all factors that is considers relevant in the particular case.
Issued by the Broadcasting Standards Authority pursuant to section 21(d) of the Broadcasting Act 1989.
Joanne Morris
Chair
21 April 2006
In most cases if you want to make a formal complaint about a programme broadcast in New Zealand you need to complain first to the relevant broadcaster within 20 working days of the broadcast. The broadcaster has 20 working days to reply to your complaint. If you are unsatisfied with the broadcaster's response you can then refer the complaint to the BSA for review. You can do this even if the broadcaster has upheld your complaint if you are unhappy with the action they took or didn't take. Complaints about breaches of privacy or election programmes can be made directly to the BSA.
The BSA will consider your referral and issue a decision to either uphold or not uphold your complaint. If we uphold the complaint we may issue an order that requires the broadcaster to take some form of action.
You or the broadcaster have the right to appeal any BSA decision to the High Court. You must give notice of that appeal within one calendar month of the decision.
More specific detail on how to submit a complaint can be found in Making a Complaint.
You can also view a flow chart that sets out in complaints process in a graphic form.
Powers
If the BSA decides that a broadcaster has breached standards it can make various orders. The broadcaster must comply with the order the BSA has issued. If they do not they could be liable for a fine. A full explanation of these powers can be found in What can the BSA do?
- Publish a statement
- Pay costs the Crown
- Pay costs to the complainant for a breach of privacy
- Pay costs (e.g. legal costs)
- Refrain from broadcasting
- Refrain from broadcasting any advertising
For a formal explanation of the BSA's powers you should refer to the Broadcasting Act 1989.
The BSA has issued an advisory opinion that explains the approach it will likely take when awarding costs.
