McDonald and Discovery NZ Ltd - 2022-065 (23 August 2022)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- Aroha Beck
- Donald McDonald
BroadcasterDiscovery NZ Ltd T/A Warner Bros. Discovery
[This summary does not form part of the decision.]
The Authority has declined to determine five complaints about different Newshub Live broadcasts under several standards, on the basis they were trivial, vexatious, or in all the circumstances, did not warrant determination.
Decline to determine (section 11(a) of the Broadcasting Act 1989 – trivial and vexatious, and section 11(b) in all the circumstances the complaint should not be determined): Accuracy, Children’s Interests, Good Taste and Decency, Discrimination and Denigration, Programme Information, Law and Order
 Between May and July 2022 we received five separate complaint referrals from Donald McDonald concerning four different broadcasts of Newshub Live at 6pm and one broadcast of Newshub Live at 4pm. The complaints are listed below, with the standards raised.
- Complaint A: Newshub Live at 6pm (16 May 2022) – good taste and decency, discrimination and denigration, children's interests
- Complaint B: Newshub Live at 6pm (22 April 2022) – accuracy
- Complaint C: Newshub Live at 6pm (27 April 2022) – accuracy, children's interests, programme information
- Complaint D: Newshub Live at 6pm (15 May 2022) – accuracy
- Complaint E: Newshub Live at 4pm (17 June 2022) – programme information, law and order, accuracy
 The broadcaster provided formal responses to each of these complaints (except D) which are outlined below.
 The broadcast reported on the findings of an inquiry into Cycling New Zealand and High Performance Sport New Zealand, in which Phil Holden (Cycling NZ's Chair) stated ‘we absolutely apologise to them [Olivia Podmore's family] for that grief and trauma. No one can underestimate or understand what they must be going through.’
 The complainant was of the view this statement breached several standards, in particular Holden’s use of the term ‘underestimate’ was ‘demeaning’ and meant ‘the grief is less than nothing’.
 Discovery did not uphold the complaint and advised McDonald: ‘the Broadcast was straightforward news reporting. Mr Holden's comment was appropriate for inclusion and clearly identifiable as his opinion.’
 The complaint stated a Newshub report on public servants’ pay rises was inaccurate. The report stated in the introduction ‘2500 high paid public servants have got salary increases’ and then later in the actual segment, the presenter said ‘more than 2500 of those higher paid earners have been granted pay rises’, while a screen behind the presenter showed in large writing ‘2670 granted pay rise’.
 This complaint was difficult to understand, but it appears the complainant’s concern was with the lack of specificity in stating ‘2500’ public servants had received increases, rather than stating the more exact figure of ‘2670’.
 Discovery stated it could not identify any material errors of fact and did not agree the audience was misled in any way.
 The complaint, under the accuracy standard, related to a Newshub weather presenter misusing the word ‘crepuscular’ to describe the sunbeams in a sunrise.
 The complainant advised the word crepuscular actually means ‘resembling or relating to twilight’.
 Discovery accepted ‘crepuscular’ was the incorrect word to use in reference to the sunrise shown, however, was confident the verbal references to it being a sunrise, accompanied by a photograph of the sunrise, meant the audience would have understood the weather presenter was indeed talking about a sunrise. Discovery noted it had shared the complainant’s concerns with the editorial team and informed them of the correct definition of crepuscular for future bulletins.
 This complaint related to a weather presenter describing Westport as having received two ‘one in a hundred year’ floods.
 The complainant complained about the accuracy of this phrase:
News said Westport 2 x 1 in 100 year flood events. Saying? Saying? Some sort of weather event what what qualifies 2 times similar events. How 100-years. EG fiction fiction. Fuk. Discovery accuracy. What is definition of this event. Actuary life gamble. Something is fishy. Because this happens every week now you say every week it's a 100-year event so why does 100 years turn up every week that's a s*** that say bugger why youre telling such big lies bastard cont
 Discovery did not respond with a decision on this complaint due to inappropriate language used by the complainant in making his complaint. Discovery offered the complainant the opportunity to resubmit his complaint with more appropriate language. The complainant sent his response to both Discovery and the BSA. Discovery did not consider this response to meet its request for the complainant to resubmit his complaint using appropriate language. We have treated this email as a referral (on the basis of no response from Discovery).
 The complainant complained under the programme information, law and order, and accuracy standards, advising that a broadcast about the Tauranga by-election incorrectly referred to the general election.
 Discovery advised: ‘the broadcast reported on the activities of the candidates standing in the Tauranga by-election on the eve of the polls opening the next day. The Broadcast contained references to both the imminent by-election and the general election due to take place next year’.
Outcome: Decline to determine
 Section 11(a) of the Broadcasting Act 1989 authorises the Authority to decline to determine complaints if it considers they are frivolous, vexatious, or trivial.
- 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.1
- A vexatious complaint, on the other hand, is one which has been instituted without sufficient justifying grounds.2 The BSA is usually reluctant to label a complainant vexatious. However, complainants who repeatedly refer complaints about the same issue, even though their earlier complaints have been dismissed with comprehensive reasons given, have been found to be vexatious.3
 Section 11(b) of the Broadcasting Act 1989 authorises this Authority to decline to determine a complaint if it considers, in all the circumstances of the complaint, it should not be determined by the Authority.4
 The policy behind s 11 is that the time and resources of the Authority, which are, in the end, sustained by broadcasters and by the people of New Zealand, should not be wasted in having to deal with matters which objectively have no importance.5
 We consider complaints A–C to be trivial, complaint D to be both trivial and vexatious, and complaint E, in all the circumstances, should not be determined:
- Complaint A concerns an interpretation of the broadcast that we consider unlikely to represent the practical interpretation or understanding of reasonable New Zealand viewers.
- In Complaint B we note the presenter provided the more exact figure for the number of public servants who had received pay increases on multiple occasions throughout the broadcast, and therefore find the alleged inaccuracy to be immaterial and the complaint to be trivial.
- In Complaint C, we found the response from the broadcaster adequately resolved the complaint by accepting the mistake in the word used, and by advising its staff on the correct meaning of the word for future broadcasts.
- In complaint D the alleged inaccuracy was immaterial to the broadcast as a whole. We note further the complainant received a substantive response to a near identical complaint in 2021, in which his complaint was not upheld,6 therefore we consider this complaint both trivial and vexatious.
- In complaint E, we believe the complainant misheard or misunderstood the broadcast, as the broadcast did not refer to a general election occurring the following day. Therefore, we have decided that in all the circumstances, we should not determine this complaint.
 We note that over a number of years, the complainant has repeatedly referred complaints about trivial accuracy points to the Authority, and complaints in respect of which he has received an adequate response from the broadcaster.7 He has also been offered guidance from the High Court regarding the importance of discriminating between errors and not continuing to ‘view all mistakes as being significant’.8 We remind the complainant it may be open to the broadcaster to request reimbursement of reasonable costs incurred in dealing with future such complaints.
 In light of some of the language in the complaints (including that mentioned in paragraph 13), we also wish to emphasise the importance of using appropriate language with broadcasters when making complaints. Abusive and offensive comments directed at broadcasters may, alone, result in the Authority declining to determine a complaint in future.
For the above reasons the Authority has declined to determine these complaints.
Signed for and on behalf of the Authority
23 August 2022
The correspondence listed below was received and considered by the Authority when it determined this complaint:
A – Newshub Live at 6pm (16 May 2022)
1 Donald McDonald’s complaint to Discovery – 16 May 2022
2 Discovery’s response – 10 June 2022
3 McDonald’s referral to the BSA – 11 June 2022
B – Newshub Live at 6pm (22 April 2022)
4 McDonald’s complaint to Discovery – 15 May 2022
5 Discovery’s response – 10 June 2022
6 McDonald’s referral to the BSA – 11 June 2022
C – Newshub Live at 6pm (27 April 2022)
7 McDonald’s complaint to Discovery – 15 May 2022
8 Discovery’s response – 10 June 2022
9 McDonald’s referral to the BSA – 11 June 2022
D – Newshub Live at 6pm (15 May 2022)
10 McDonald’s complaint to Discovery – 15 May 2022
11 Discovery’s response (would not engage with DM due to language) – 13 June 2022
12 McDonald’s referral to the BSA – 13 June 2022
13 Discovery to BSA declining to respond to the complaint due to language – 16 June 2022
E – Newshub Live at 4pm (17 June 2022)
14 McDonald’s complaint to Discovery – 17 June 2022
15 Discovery’s response – 13 July 2022
16 McDonald’s referral to the BSA – 13 July 2022
17 Discovery no further comment in relation to all five complaints – 19 July 2022
1 Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 66
2 Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 66
3 See, for example, Leitch and Television New Zealand, Decision No. 2012-104 and Rupa and Māori Television, Decision No. 2011-087
4 Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 67
5 Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 65
6 McDonald and Discovery NZ Ltd, Decision No. 2021-005
7 See for example: McDonald and Television New Zealand Ltd, Decision No 2015-016; McDonald and Television New Zealand Ltd, 2016-021; McDonald and Television New Zealand Ltd, Decision No 2014-150; McDonald and Television New Zealand Ltd, Decision No 2014-158; McDonald and Television New Zealand Ltd, Decision No. 2010-015; and McDonald and Television New Zealand Ltd, Decision No. 2010-033
8 McDonald v Television New Zealand Ltd HC Wellington CIV 2011-485-1836, 30 April 2012 at