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The BSA Complaints process
THE BSA COMPLAINTS PROCESS
What type of programme can I complain about?
You can complain about any programme broadcast in New Zealand on TV or radio.
How to complain?
Formal complaints must be sent to the broadcaster first (unless it’s about privacy only or election programmes, in which case you can send it straight to the BSA).
You need to make your complaint within 20 working days of the broadcast.
What will the BSA accept complaints about?
|Free-to-air TV programmes||Advertising (contact the Advertising Standards Authority)|
|Pay TV programmes||Programme scheduling (contact the broadcaster)|
|Radio programmes||Broadcaster website written content (contact the broadcaster)|
|Programmes viewed or listened to on demand (ONLY if you can supply details of the same material broadcast on TV or radio and lodge your complaint within 20 working days of that broadcast)||Programmes viewed or listened to on demand – if you cannot supply details of the same material broadcast on TV or radio (contact the broadcaster)|
|Election advertisements on TV or radio (during election periods)||News and current affairs on broadcasters’ websites, which has not been on TV or radio (contact the New Zealand Media Council)|
What issues can I complain about?
You can complain about the following issues:
- offensive and disturbing content
- promotion of illegal or antisocial behaviour
- children’s interests
- discrimination and denigration
What is needed for my complaint to be a ‘formal complaint’?
To make a formal complaint certain requirements must be met. A formal complaint must:
- be in writing
- relate to a specific broadcast
- be made within the required timeframe (usually within 20 working days of the broadcast)
- include sufficient details to reasonably enable identification of the broadcast, eg:
- date of the broadcast
- time of the broadcast (if known, or if not known, a reasonable estimate of the period within which it was broadcast plus as much detail as possible about surrounding broadcast content or any other information to help locate the content)1
- title of the programme
- channel or station which broadcast the programme
- be an allegation that particular broadcasting standards have been breached.
Complaints not meeting these requirements do not fall within the BSA complaints process and broadcasters may treat them as feedback only.
As an agency that deals with freedom of speech issues, we value feedback. However, harmful communications to BSA staff – such as abusive or offensive comments and harassment – are never acceptable and may result in the Authority declining to determine your complaint.
Retention of Broadcasts
In the event of a complaint, access to the recording assists the broadcaster to argue their point of view and ensures the BSA gains a correct understanding of the content, context and tone of the broadcast.
Broadcasters are expected to retain recordings of broadcasts for at least 35 days. Where a broadcast is the subject of a complaint (especially where the complainant indicates an intention to refer it to the Authority), broadcasters shall retain the recordings until:
- supplied to the Authority in the context of a complaint referral or
- the expiry of 20 days following the final date for referring the complaint to the Authority (if the broadcaster has received no indication of the complaint’s referral to the Authority)’.
1 Recognising broadcasters’ limited resources, and the time which can be involved in locating specific content, a reasonable estimate will generally involve identifying the period within a window of no greater than three hours. However a reasonable estimate of the period may be significantly less where the content is more challenging to locate (ie a single comment or word).
Section 11 of the Broadcasting Act 1989 authorises the BSA to decline to determine a complaint which has been referred to it if it considers:
- that the complaint is frivolous, vexatious or trivial – section 11(a); or
- that, in all the circumstances of the complaint, it should not be determined by the Authority – section 11(b).
The purpose of this section of the Codebook is to provide guidance to complainants and broadcasters about the usual way section 11 is interpreted and applied by the BSA.
In the BSA’s view, the policy behind section 11 is that the time and resources of the Authority, which are, in the end, sustained by the people of New Zealand, should not be wasted on having to deal with matters which objectively have no importance.
The complaints system under the Broadcasting Act is an open door system. Broadcasters are required to receive and consider all complaints that meet the section 6 criteria for being a valid formal complaint, ie complaints that:
- are in writing
- are lodged within 20 days of the broadcast (unless a section 6(3) exception applies)
- are about a broadcast programme
- allege (expressly or impliedly) a failure to comply with one or more broadcasting standards.
Complaints that do not meet these criteria are outside the BSA’s jurisdiction and it is not necessary to exercise the section 11 power (eg ID2019-046, ID2018-098).
The BSA usually expects broadcasters to deal with complaints they receive in a considered and appropriately comprehensive way. It does not expect a comprehensive analysis of a complaint when, on its face, it is frivolous or trivial. The BSA is conscious that there is an economic cost in dealing with complaints and it does not wish to see resources wasted on complaints that have no foundation whatsoever.
All complaints which are then referred by a complainant to the BSA need to be considered by the Authority but with the qualification that if they are considered to come within section 11 they need not be determined.
The following summaries and examples demonstrate the BSA’s approach in decisions declining to determine a complaint (cited by decision number; all decisions are available on the BSA’s website here).
Section 11(a): Frivolous, vexatious or trivial
The BSA will usually apply the ordinary meanings of the words frivolous, vexatious or trivial. Obviously, there is some overlap in the meanings of these terms.
A frivolous complaint is one which the BSA considers to be unworthy of being treated in the same way in which it would treat a complaint which is not frivolous or which has some merit. Frivolous means not serious or sensible, or even silly.
A trivial complaint is one which is of little or no importance and is at such a level not to justify it being treated as a serious complaint.
Examples of complaints that the BSA has declined to determine on the basis they were frivolous or trivial include:
Trivial accuracy complaints
- a complaint that promos for upcoming programmes containing the word ‘next’ were inaccurate, because there were advertisements between the programmes (2007-095)
- a complaint that a reference to ‘government superannuation’ was inaccurate as it should have referred to ‘New Zealand superannuation’ (2009-164)
- a complaint that the meaning of the phrase ‘50 times less power’ was unclear and therefore inaccurate (2009-150)
- a complaint that a reference to a ‘31 per cent difference’ in men’s and women’s pay was inaccurate (2010-015)
- a complaint that a reference to ‘wind chill factor’ did not indicate which temperature measurement was being used (2010-033)
- a complaint that a reference to Prince William as ‘the next King of England’ was inaccurate because he was also the next King of New Zealand (2011-004)
- a complaint that a reference to a train ‘engine’ was inaccurate (2011-009)
- a complaint that a reference to a search area should have been in square nautical miles, not kilometres (2010-055)
- a complaint that the phrase Police ‘force’ was inaccurate because the police were not part of the Armed Forces (2011-067)
- a complaint that a reference to ‘an area of around 15,000 rugby fields’ was inaccurate because that was not a proper area measurement (2012-100)
- a complaint that a reference to colony cages for hens being ‘4cm more than conventional cages’ was inaccurate (2012-100)
- a complaint that a reporter’s reference to a witness statement regarding the probative value of DNA evidence was incorrect for not taking into account the possibility of an identical twin or falsification of evidence (ID2018-035)
- a complaint that encouraging more men to read books was inaccurate because paper-based books, for example, spread bacteria and could cause eye problems (ID2019 -010).
Complaints about low-level language
- a complaint about the word ‘bugger’ in a factual travel programme (2011-084)
- a complaint about the word ‘damn’ in an election advertisement (2011-143)
- a complaint about the use of the word ‘gay’ in a news item, to mean ‘homosexual’ (2011-118).
Other frivolous/trivial matters
- a complaint that an election advertisement which used a voiceover by a child was inappropriate because children are not allowed to vote (2011-158)
- a complaint that a news item containing footage of a reporter walking backwards was dangerous and breached standards of law and order (2012-100).
A vexatious complaint, on the other hand, is one which has been instituted without sufficient justifying grounds. In some cases, a person putting forward a vexatious complaint may do so with the intention of causing annoyance, but such an intention may not be necessary in order for a complaint to be considered vexatious.
The BSA is usually reluctant to label a complainant vexatious; however, examples of complaints that the BSA considered to be vexatious include:
- A complainant misheard the broadcast, received an adequate response from the broadcaster to that effect, but still proceeded with a referral to the Authority (2008-035).
- Complainants repeatedly referred complaints about the same issue, even though their earlier complaints had been dismissed and comprehensive reasons given (2012-104, 2011-087, ID2018-063, 2019-027).
Section 11(b): In all the circumstances, the complaint should not be determined
Additionally, in terms of section 11, there may be other good reasons for the BSA to decline to determine a complaint. Examples include:
- the complaint is based merely on the complainant’s personal preferences (see section 5(c) of the Broadcasting Act 1989), or is a matter of editorial discretion, which broadcasters are entitled to exercise:
- complaints that programmes about the Treaty of Waitangi and New Zealand flags omitted certain facts (2010-009, 2011-055, 2011-087, 2011-170)
- a complaint that news programmes failed to report certain stories (2010-086)a complaint that an interview about Olympic drug cheating referred to Jamaica but did not discuss New Zealand’s alleged cheating history (2012-109)
- a complaint that a news item reported differently on an event than a BBC item about the same topic (2012-117)
- a complaint that reporting on the deaths of animals (rather than humans) devalued human life (2019-031)
- a complaint that a particular panellist should not have been on a programme (ID2018-097)
- the complaint raises matters which are incapable of being addressed as issues of broadcasting standards, the grounds of the complaint are unclear, or the complainant misheard or misunderstood the broadcast (2008-127, 2010-002, 2010-048, ID2018-097)
- the complaint relates to material outside the Authority’s jurisdiction, such as printed internet content or on-demand content (2010-070)
- a recording of the broadcast is unavailable or incomplete, or cannot be located because the content of the complaint does not correspond with any broadcast at the time specified in the complaint (2007-051, 2010-068, 2010-129, 2011-102, 2012-093, 2012-117).
Costs awards against complainants
Pursuant to s16 of the Broadcasting Act, the Authority may make an award of costs against a complainant where a complaint is found to be frivolous, vexatious or trivial or one that ought not to have been made. This is a discretionary power and such orders will be made sparingly to ensure that complainants are not dissuaded from lodging complaints with merit (McDonald v Television New Zealand Ltd CIV 2011-485-1836).
The Authority will consider a range of factors including previous complaints and whether these have been found to be frivolous, vexatious or trivial, the nature of the complaint, previous guidance or warnings provided to the complainant by the Authority, the time spent on the complaint by the parties, the conduct of the complainant in the course of the complaint (2019-027).
BSA retains ultimate discretion
This section is intended to provide a guide only, and does not bind the BSA in determining the outcome of any future complaint. The BSA retains overall discretion and each complaint is determined on its particular facts.
Guidance to complainants and broadcasters on the issue of costs awards.
Section 16(1) of the Broadcasting Act 1989 provides:
.. the Authority may, in any proceedings, order any party to pay 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.
Costs awards are ordinarily to recompense in part a successful complainant for legal costs which have been incurred (but may be costs other than legal fees incurred during the complaints process).
There are some principles which we wish to apply when we consider applications for orders of costs, and these include the following:
- This is a jurisdiction which needs to be, as far as possible, accessible to participants without the need for legal advice and legal help in the preparation and presentation of submissions.
- We recognise and respect the freedom of complainants and broadcasters to involve their lawyers but they need to recognise that any recompense for costs cannot be assumed to follow.
- There will be exceptional cases where the assistance of lawyers will be desirable and appropriate and in these cases, issues of costs will properly arise.
Amount of costs
In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.
Different lawyers have different methods of fees assessment, different levels of relevant skills and experience, and different approaches to the work that they do. Different complainants have different approaches to the extent that their lawyers need to be involved and to the extent of their willingness to accept the impact of fees. In these circumstances, and in this jurisdiction, fees charged by lawyers to complainants vary widely and we are not able to approach the quantification of costs awards solely or substantially by judging what proportion of actual costs should be allowed.
Moreover, what costs are ‘reasonable’ as between the complainant and the complainant’s lawyer is not something which we are ordinarily able to judge as we would usually have insufficient detail of what about the work requested, what was done, and what was involved in the work being done. We do, however, ask complainants to provide invoices for any legal costs incurred.
In these circumstances, our approach to the quantification of an award of costs must be broad brush and objective, and must take into account a range of factors.
The factors which we will take into account when considering any application for costs in favour of a successful complainant and in quantifying any such order will include the following:
- the complexity of the issues raised
- the number of issues raised
- the complexity of the factual background
- the number of substantive submissions that needed to be made
whether the proceeding required resolution of any interlocutory or procedural issues
- the need for the complainant to have incurred costs to the extent that costs were incurred or at all
- the amount of costs incurred
- the nature and importance of the complaint to the complainant
- the public interest in the complaint.
BSA retains ultimate discretion
This section is intended to provide a guide to the principles the BSA will consider in determining whether or not to award costs and, if so, the amount of any award. The BSA retains overall discretion and in any particular case may take into account such factors as it thinks should fairly and appropriately be taken into account.