BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

INTERLOCUTORY DECISION

 

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Summary

The case of a social worker convicted of child abuse offences whose name had been

suppressed was examined in an item on Channel 2's 60 Minutes broadcast between

7.30–8.30pm on Sunday 4 September. One aspect of the story was that his past

behaviour had worried some of his fellow social workers who had drawn their

concerns to the attention of the supervisory staff.

Before the broadcast, Mrs MacKenzie, Chief Social Worker for the Auckland

Hospital Board from 1982–1991, declined by telephone to comment to 60 Minutes

on personnel matters. She was subsequently approached by 60 Minutes' reporter and

a crew – with cameras rolling – outside her home when leaving for work one morning.

She again declined to comment and went inside. She complained to Television New

Zealand Ltd, the broadcaster, that the incident had breached a number of broadcasting

standards and in addition that it had breached her privacy.

TVNZ maintained that the incident did not involve a breach of the standards or a

breach of the privacy principles.

Dissatisfied with TVNZ's decision on the standards matters, Mrs MacKenzie's

solicitors referred the complaint to the Authority. TVNZ maintained that the referral

was time barred while the solicitors argued that the complaint was not time barred as

it had first been brought to the Authority's attention in September when the initial

complaint was made.

For the reasons given below, the Authority declined to accept the referral on the

grounds that it was time barred.

Decision

The members of the Authority have read the correspondence and the following is a list

in chronological order. The correspondence refers to both a standards complaint and a

privacy complaint. This interlocutory decision applies only to the standards

complaint as the privacy one was, without question, received within the time limits.

It will be determined separately.

1. 15.8.94    Prior to the broadcast of the programme, Mrs MacKenzie formally

complains to TVNZ that, after declining by telephone to comment

on a personnel matter from her time as chief social worker with the

Auckland Hospital Board, she was confronted at 7.50am by a

television crew as she left her home for work one morning. She

alleged invasion of privacy, harassment and unethical journalism.

2. 4.9.94    60 Minutes item screens showing Mrs MacKenzie leaving home and,

apparently on seeing the camera, exchanging some words with the

reporter, turning around and going back inside.

3. 8.9.94    TVNZ acknowledges to Mrs MacKenzie receipt of her 15 August

letter and advises that it will be investigated as a complaint which

alleged a breach of s.4(1)(c) of the Broadcasting Act and standard G4

of the Television Code of Broadcasting Practice.

4. 15.9.94    Mrs MacKenzie's solicitors (Bell Gully Buddle Weir) complain

formally to the Broadcasting Standards Authority that the events

leading up to and the broadcast of the 60 Minutes item breached

s.4(1)(c) and (d) of the Act and standards G4, G6, G7, G19 and G20

of the Code.

5. 20.9.94    The Authority asks TVNZ to respond to the privacy complaint.

The other matters are referred to TVNZ for its action.

6. 20.9.94    The Authority advises Mrs MacKenzie's solicitors that all

complaints, other than ones which allege a breach of privacy, must

be made initially to the broadcaster. Accordingly, the current

complaint, other than the alleged breach of s.4(1)(c), is being referred

to TVNZ. The solicitors are also advised that the Authority has

accepted the privacy complaint and that TVNZ has been asked to

respond to it.

7. 4.10.94    TVNZ replies to the Authority on the alleged breach (under

s.4(1)(c)) of Mrs MacKenzie's privacy. The Authority is advised

that all the other matters raised will be considered by TVNZ's

Complaints Committee at its next meeting.

8. 7.10.94    The Authority requests, from Mrs MacKenzie's solicitors, her

response to TVNZ's reply on the privacy complaint.

9. 21.10.94    TVNZ advises Mrs MacKenzie's solicitors (letter received by them

on 27.10.94) that it declines to uphold the standards complaint.

10. 4.11.94    To assist it to resolve the privacy complaint, the Authority asks

TVNZ for some material referred to in its 4.10.94 letter – ie the legal

opinions on aspects of privacy and the field tape of the 60 Minutes'

reporter's action after Mrs MacKenzie retreated inside. Letter

copied to Mrs MacKenzie's solicitors.

11, 7.11.94    The solicitors advise the Authority that they agree with the

Authority's request to TVNZ and enclose a copy of a letter to

TVNZ endorsing it. The Authority is also advised that further

instructions on TVNZ's reply to the standards complaint are being

sought.

12. 23.11.94    TVNZ provides requested legal opinion to the Authority but

declines to make the field tape available.

13. 25.11.94    The Authority sends TVNZ's reply to Mrs MacKenzie's solicitors

and asks for comment.

14. 28.11.94    The solicitors write by fax to the Authority on a number of issues

including a detailed response to TVNZ's letter of 21 October dealing

with the alleged breaches of the nominated standards.

15. 28.11.94    A brief letter from the solicitors to the Authority notes two

corrections to their earlier faxed letter.

16. 29.11.94    The Authority writes to TVNZ asking for its response to the

solicitors' letter of 28.11.94 and, in particular, whether in its opinion

it complied with the time requirements in s.9(1) of the Act.

17. 29.11.94    The Authority writes to the solicitors advising that TVNZ's

response to the referral is being sought and, in particular, compliance

with s.9(1).

18. 30.11.94    TVNZ (the Company Secretary) advises the Authority that as the

referral was clearly out of time under s.9(1), it should have been

declined by the Authority without question.

19. 30.11.94   TVNZ (the Programme Standards Manager) also maintains that the

solicitors's letter of 28 November is outside the time limits.

20. 30.11.94    The solicitors maintain to the Authority that s.9(1) is irrelevant as

their letter of 15 September to the Authority was notice of the

complaint.

21. 5.12.94    The Authority sends the solicitors the two letters from TVNZ dated

30 November and requests comment.

22. 6.12.94    The Authority sends TVNZ the 30 November letter from the

solicitors and seeks comment.

23. 7.12.94    The solicitors maintain to the Authority their approach advanced in

their 30 November letter.

24. 8.12.94    TVNZ maintains to the Authority its approach advanced in its

30.11.94 letters.

25. 12.12.94   TVNZ's letter sent to Mrs MacKenzie's solicitors for comment.

26. 13.12.94    The solicitors in a fax to the Authority repeat their argument.

The relevant provisions in the Broadcasting Act

The Authority repeats that although there are references to the privacy complaint

(under s.4(1)(c) of the Act), this decision is solely concerned with the standards

complaint (under s.4(1)(d) of the Act and standards G4, G6, G7, G19 and G20 of the

Television Code of Broadcasting Practice. The Code is issued under s.4(1)(e)).

Under s.6(1)(a) of the Act, broadcasters are required to receive and consider formal

complaints that a programme has failed to comply with the provisions in s.4. In view

of s.6(2), complaints must be in writing and lodged within 20 working days "after the

date on which the programme to which the complaint relates was broadcast by the

broadcaster". Complaints which allege a breach of privacy under s.4(1)(c) are the only

complaints which, under s.8(1)(c) of the Act, may be made directly to the Authority.

Section 7 sets out the obligations of broadcasters having determined a formal

complaint and s.7(2) requires that the complainant be notified if the complaint is

found not to be justified. Under s.7(3), the broadcaster must advise the complainant

of the complainant's right "by way of referral to the Authority under section 8 of this

Act, to seek an investigation and review of the broadcaster's action or decision, as the

case may be."

Section 8(1) authorises reasons for the referral and s.8(1)(a) provides:

(a) The complainant, in respect of a complaint under section 6(1)(a) of this

Act, is dissatisfied with the decision or with the action taken by the

broadcaster.

The referral right under s.8(1)(a) is subject to s.9(1) which states:

9. Time limits - (1) The Authority shall not accept a complaint referred to it

under section 8(1)(a) of this Act after the expiry of the period of 20 working

days beginning with the first working day after the day on which the

complainant received from the relevant broadcaster notice of its decision

 in relation to the complaint.

The Authority has no discretion in complying with this provision.

The Submissions

TVNZ interpreted the Act in the following way. The complaint which alleged a

breach of standards was made to the Authority in a letter from Mrs MacKenzie's

solicitors dated 15 September and the Authority, because it was unable to deal with

the matters, had sent it on to the broadcaster. TVNZ had sent its response declining

to uphold the complaint in a letter to the complainant's solicitors dated 21 October.

It accepted that the letter was received by her solicitors on 27 October and that the 20

working days began on 28 October. They expired, it said, on 24 November and thus

the referral, dated 28 November, was out-of-time.

The solicitors stated that the time limit in s.9(1) was designed to ensure that

complaints were brought to the Authority's attention in a punctual manner following

the broadcaster's decision. They wrote:

The time limit has no application where the formal complaint is made to the

Authority when the complainant is dissatisfied with the action taken by the

broadcaster and before the broadcaster's decision is known to the complainant.

They argued that Mrs MacKenzie's letter of 15 August was the first formal

complaint which TVNZ acknowledged in its letter of 8 September. Because of Mrs

MacKenzie's dissatisfaction with that response, they had on 15 September lodged a

formal complaint with the Authority alleging breaches of a number of specified

provisions. They continued:

As noted in Television New Zealand's 8 September letter, our client had the

option of pursuing the complaint with Television New Zealand or direct with

the Authority. Our client pursued the matter direct with the Authority. This is

further confirmed by your letter to Television New Zealand dated 20 September

1994 in which you notified Television New Zealand that our client's formal

complaint had been received by the Authority.

By that same 20 September 1994 letter from the Authority to Television New

Zealand, the Authority, pursuant to section 10(1)(a) of the Act, called for

Television New Zealand's response to our client's formal complaint in order

that the matter could be placed before the Authority.

They concluded:

In short, our client's formal complaint was referred to the Authority on 15

September 1994. No question arises under section 9.

The Authority's Findings

Although s.6(1) is not explicitly confined to complaints about programmes which

have been broadcast, in view of the explanation of the Act's intention contained in its

long title and in view of s.6(3) (and the other references to time limits), the Authority

has considered its jurisdiction is limited to complaints about programmes which have

been broadcast. In taking this approach, the Authority does not want to suggest that

there are no controls on broadcasters on the manner in which material is gathered for a

broadcast. Rather it is of the view that such matters, like all others within the

Authority's jurisdiction, cannot raise broadcasting standards issues until the item is

broadcast. Following the broadcast, the provisions in the Broadcasting Act come into

play.

The Authority has made this point in view of Mrs MacKenzie's initial complaint –

dated before the broadcast – and TVNZ's initial response (dated 8 September) which,

although sent after the broadcast, assumed that the Act was brought into play by the

initial letter. Although the Authority is not bound by TVNZ's misinterpretation, it

accepts that TVNZ could be responsible for some confusion early on. However, it

does not accept that the confusion persisted as the subsequent procedures complied

with the legislative requirements and, in addition, the complainant was legally

represented and thus provided with the opportunity to receive advice to ensure that

the Act was followed.

The Authority regards the letter from Mrs MacKenzie's solicitors to the Authority

dated 15.9.94 to be a formal complaint which complied with s.6(1)(a) of the Act.

However, that letter (on all issues other than the alleged breach of privacy) should

have been sent to TVNZ, the broadcaster. That this was the correct procedure was

explained to the solicitors when the Authority in its reply dated 20.9.94 wrote:

As TVNZ's letter to Mrs MacKenzie of 8 September noted, all complaints

other than ones which allege a breach of privacy must be made initially to the

broadcaster. Accordingly, I have referred your letter alleging breaches of

s.4(1)(d) of the Act and standards G4, G6, G7, G19 and G20 to TVNZ and

asked it to respond to you directly on those matters.

As for the aspect of your complaint which alleged a breach of s.4(1)(c) of the

Broadcasting Act, the papers have been sent to the broadcaster for comment.

To ensure that the situation was fully understood, the Authority sent the

complainant's solicitors a copy of its letter (of the same date) to TVNZ when it said

(in full):

A complaint has been received by the Authority from Mrs Judith MacKenzie's

solicitors alleging that a 60 Minutes item broadcast on 4 September, among other

matters, failed to comply with s4(1)(c) of the Broadcasting Act 1989 in that it

failed to maintain standards consistent with the privacy of the individual. A

copy of the formal complaint is enclosed. As a privacy complaint, the

Authority is empowered to receive and determine it.

Pursuant to s.10(1)(a) of the Act, I would be grateful if you would forward your

comments promptly on the privacy complaint, together with the relevant tape,

so that the matter can be placed before the Authority.

Mrs MacKenzie's solicitors have raised some other matters in the letter and

they are forwarded to you for your action. I enclose a copy of the Authority's

reply so that you are aware of the Authority's response.

The next information on the standards complaints received by the Authority was Mrs

MacKenzie's solicitors' letter of 4.11.94 when, after they had been advised that the

Authority was seeking more information about the privacy complaint, they let the

Authority know:

In the meantime, as indicated in our telephone conversation this morning, we

have received a lengthy letter from Television New Zealand rejecting our client's

complaints. We have referred that letter to our client and as soon as we receive

her further instructions we shall contact you again.

In response to the solicitors' arguments, the Authority has taken into account the

provisions in the Broadcasting Act – specifically s.8 – and has concluded that a matter

cannot be referred to the Authority until the complainant has received the

broadcaster's decision on the complaint.

In their letter faxed to the Authority on 28 November, the solicitors stated that their

letter of 15 September to the Authority was sent in the absence of a substantial

response to Mrs MacKenzie's letter of 15 August. In commenting in detail on

TVNZ's letter of 21 October, they recorded:

This letter is our client's further response to Television New Zealand's letter

dated 21 October 1994, which was not received by us until 27 October 1994 and

to the further matters drawn to the Authority's attention in Television New

Zealand's letter dated 23 November and to the enclosed opinion from Simpson

Grierson Butler White dated 23 November 1994.

The Authority's approach was apparent from its letter of acknowledgment (29

November) when it began:

Than you for your letter of 28 November in which you comment on the privacy

aspect of Mrs MacKenzie's complaint and refer to the Authority her standards

complaint about the item broadcast on 60 Minutes on 4 September.

It acknowledges the intention of the legislation is to promote punctuality but to

ensure that this is achieved, the Act has provided specific (and inflexible) time limits.

The Authority has cited at length from its letters of 20 September to the

complainant's solicitor and TVNZ to record its disagreement with the interpretation

now given to those letters by the solicitors.

TVNZ's decision on the standards complaint was contained in its letter of 21 October

which was received on the 27th. Under s.9(1), time began to run on Friday 28 and 20

working days expired on Thursday 24 November. Thus, the Authority concluded the

letter of referral of 28 November was out of time.

 

For the reason set forth above, the Authority declines to accept the referral of

the standards complaint about the broadcast of 60 Minutes by Television New

Zealand Ltd on Sunday 4 September 1994.

Signed for and on behalf of the Authority

 

Iain Gallaway
Chairperson

24 January 1995