Guidance for Complainants Hei ārahi i te kaiamuamu

GUIDANCE FOR COMPLAINANTS

The BSA deals with complaints about election programmes broadcast on television or radio. Complaints about election programmes that are by or for a party or candidate in the election period come directly to the BSA and don’t need to go to the broadcaster first. Complaints about other election related programmes, such as news, satire, or commentary must go to the broadcaster first.

The Electoral Commission, Advertising Standards Authority and NZ Media Council also deal with complaints about election advertising and coverage. For more information about the respective roles of these agencies and who you should send your concerns or a complaint to, see our Who does what? Elections guide below.

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What is an ‘election programme’ under the Broadcasting Act?

An election programme is defined in section 69(1) of the Broadcasting Act 1989 as a programme that is broadcast on television or radio during an ‘election period’ (see below) which:

  • encourages or persuades, or appears to encourage or persuade voters to vote, or not to vote, for a political party or the election of a constituency candidate; or
  • advocates support for, or opposes, a constituency candidate or political party; or
  • notifies meetings held or to be held in connection with an election.

Usually, an election programme will appear as a short promotional / campaign clip for a political party or constituency candidate, broadcast on TV or on radio.

The Court of Appeal has held that election programmes are only those that are broadcast for political parties or candidates – and not programmes initiated by broadcasters or other third parties (The Electoral Commission v Watson & Jones, CA239/2015 [2016] NZCA 512, 20 October 2016).

You may complain directly to the BSA if you think that an election programme has breached the Election Programmes Code. (Note: Only general elections or by-elections for members of the House of Representatives are covered. Local body elections are not covered by this Code.) If you wish to make a complaint go to the Election Programmes Complaint page.

What if a news or current affairs programme covers election issues – is that an election programme?

No. News or current affairs programmes relating to elections (or any programmes broadcast to inform, enlighten, or entertain an audience) are not ‘election programmes’ for the purposes of broadcasting standards and are not subject to the Election Programmes Code (see Broadcasting (Election Programmes and Election Advertising) Amendment Act 2017, section 70(4)(a)).

However, news, current affairs and other programmes that cover the election or election issues are subject to the relevant broadcasting standards for Radio, Free-to-Air TV or Pay TV, and you may complain about them to the relevant broadcaster (unless it’s a complaint about privacy, which can be made directly to the BSA).

When can an election programme be broadcast?

It is an offence to broadcast an election programme for a party or candidate except during the election period. There are also restrictions around the times at which and the days on which an election programme can be broadcast, in the election period.

The Electoral Commission handles complaints relating to the timing of election programme broadcasts.

When is the election period?

The election period begins on Writ Day (the day the Governor-General issues a writ requiring the Chief Electoral Officer to make all necessary arrangements to conduct a general election) and ends at midnight the day before polling day.

This year for the 2020 General Election, the election period runs from 16 August 2020 until midnight on 18 September 2020.

I can’t complain that an election programme didn’t present a range of significant viewpoints on a controversial issue of public importance (balance) – why is that?

The 'balance' standard does not apply to election programmes (see Broadcasting Act 1989, section 73). That is because election programmes by their nature are messages designed to promote (or oppose) a particular party or candidate, so they cannot be expected to present a range of viewpoints.

How much time do I have to make an election programme complaint?

You have 60 working days from the date of the broadcast (see Broadcasting Act 1989, section 9(2)). We encourage all complainants to make complaints as soon after the broadcast as possible.

Will you take an election programme off the air while the complaint is being determined?

No, we do not have the power to do that. The BSA will endeavour to process complaints about election programmes that are still playing (ie, political party or candidate campaign clips) as quickly as possible, so that the broadcaster can take appropriate action. If the complaint is upheld the BSA may also make other orders, such as requiring the broadcaster to issue a statement identifying the breach.

Where do I make a complaint that an election programme breached broadcasting standards?

Complaints about election programmes must be made directly to the BSA, in writing. We have a specific online complaint form for making election programme complaints, or you may email your complaint to complaints@bsa.govt.nz, or post it to BSA, PO Box 9213, Wellington 6141.

What should I say in my complaint?

To deal with your complaint effectively, we need your name and contact details. You need to provide the time, date and channel/station on which the election programme was broadcast, and identify the party or candidate featured. You must identify the standard(s) in the Election Programmes Code you think have been breached, and if you nominate Standard E1 (Election Programmes Subject to Other Codes), also the standards from the Radio, Free-to-Air TV or Pay TV Code that you believe have been breached. You need to explain why you think the broadcast breached each of the standards you nominate in your complaint.

What will happen to my complaint once it’s lodged with the BSA?

The BSA will send your complaint, including your name and details, to the relevant broadcaster and the relevant political party or candidate and give them both an opportunity to comment. It will also ask the broadcaster for a copy of the programme. The BSA will endeavour to deal with any election programme complaint as quickly as possible, so the parties will be expected to respond on a short timescale. Once it has considered all parties’ submissions, the BSA will issue its decision to the parties, and will advise when the decision will be publicly released on its website. Your name (but not your contact details) will be included in the published decision along with a summary of your correspondence.

What if I don’t want my name disclosed in relation to my complaint?

The BSA is an inherently public forum, and complaints are dealt with openly and transparently among the parties involved, including sharing your name and details.

In exceptional cases, for example privacy complaints or where publication may result in specific adverse consequences for the complainant or a third party, the Authority may grant name suppression to a complainant. This may be interim name suppression, meaning your details are anonymised in correspondence between the parties, or permanent name suppression, meaning they are also anonymised in the Authority’s decision.

If you believe there are special reasons why you should be granted name suppression in relation to your complaint, please notify us in writing and outline your reasons for requesting name suppression when you submit your complaint and/or as soon as possible after we have acknowledged receipt of your complaint.

If the Authority declines your request for name suppression, you will be notified and you may be given an opportunity to withdraw your complaint before it is considered. Please note that name suppression is rare, and the threshold for granting name suppression is high.

What will the BSA do if it upholds a complaint under the Election Programmes Code?

If the BSA upholds a complaint about an election programme, the BSA can make any of its usual orders. In the event the complaint is upheld, the BSA also encourages the broadcaster and political party concerned to consider whether any changes ought to be made to the election programme, to mitigate the breach of broadcasting standards.

What if it is an election advertisement, or other coverage of the election, but not on television or radio?

All complaints about the content of election advertisements that are not on television or radio – for instance, those on billboards, on the internet, at the movies, in print etc – should be sent to the Advertising Standards Authority.

The New Zealand Media Council is responsible for considering any complaints about the editorial content (as distinct from advertising) in NZ Media Council members’ publications. Generally, a complaint needs to be lodged with the editor/broadcaster before you can take the complaint to the Media Council. For a list of Press Council members see www.mediacouncil.org.nz or phone 0800 969 357.

An election programme didn’t name the person who authorised it – who do I complain to?

The complaint should be made to the Electoral Commission. For more information about the Electoral Commission’s role and guidance go to www.elections.nz.

What election programmes have been complained about in the past?

The BSA’s previous decisions on election programme complaints are listed below. 

2017

2014

2011

2008

2005

2002

1999/2000

1996

1993

Nothing here binds the BSA in determining the outcome of any future complaint. Each complaint is determined on the particular facts surrounding a broadcast.