Phillips and Racing Industry Transition Agency - ID2019-044 (17 September 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Wendy Palmer
- Susie Staley MNZM
- David Phillips
ProgrammeThe Box Seat
[This summary does not form part of the decision.]
The BSA has jurisdiction to consider complaints about a programme that has been simultaneously broadcast on television and streamed on the internet (simulcasts). The BSA does not have jurisdiction to consider complaints about YouTube content that is available on demand, as on demand content is excluded from the definition of broadcasting under the Broadcasting Act 1989. The Authority determined that the complaint should be considered under the Pay Television Code.
 The Box Seat is broadcast by Racing Industry Transition Agency (RITA, formerly the NZ Racing Board) live on Trackside on SKY Channel 062 on Wednesday nights at 8.30pm. It is also simultaneously broadcast (‘simulcast’)1 on the TAB website at tab.co.nz. The one hour show is also replayed at 10am on Thursdays on SKY Channel 062.
 The complainant has stated that he saw the programmes complained about when they were streaming on the TAB website (at the same time as the television broadcast). He then viewed the episodes again on YouTube, where they were posted by TAB.
 The episodes complained of were broadcast on Wednesday 8 and Wednesday 15 May 2019. As part of our consideration of these interlocutory issues, we have read the correspondence listed in the Appendix.
 David Phillips complained that the broadcasts breached the law and order, balance, fairness, accuracy, discrimination and denigration standards.
 RITA accepted the complaint as a formal complaint under the broadcasting standards complaints system as the episodes had also been broadcast on SKY on Channel 062. RITA considered the complaint under Pay Television Code of Broadcasting Practice and did not uphold the complaint.
 Mr Phillips referred his complaint to the Broadcasting Standards Authority (BSA) and asserted that his complaint should be considered under the Free-to-Air Television Code of Broadcasting Practice as he did not access the broadcasts via pay television but rather on the TAB website and YouTube.
 The first issue for consideration is whether the BSA has jurisdiction to consider a complaint about The Box Seat, which is available on pay television and also online, where the complainant has viewed the programme online only. If the answer to the first question is yes, the second issue is whether the Pay Television Code or Free-to-Air Television Code applies.
 The complainant viewed the broadcast first on the Trackside stream on the TAB website, and again on TAB’s YouTube channel where full episodes of The Box Seat are available for viewing after they have been broadcast. If the complainant had watched the broadcast on SKY the Authority would clearly have jurisdiction to consider the complaint under the Pay Television Code. The question is whether the BSA has jurisdiction to consider a complaint where the complainant has viewed the content only via the internet.
 The definition of broadcasting excludes the transmission of programmes ‘made on the demand of a particular person for reception only by that person.’ The Authority found in Hurley and MediaWorks TV Ltd that YouTube videos are on demand content and therefore fall within this exclusion:3
Our jurisdiction is prescribed by the Broadcasting Act 1989 (the Broadcasting Act). The current view is that, under the Broadcasting Act, we do not have jurisdiction over user-generated content provided on websites or internet platforms such as YouTube, because such content is transmitted on the demand of a particular person, and this is excluded from the definition of ‘broadcasting’ under section 2 of the Broadcasting Act.
Accordingly, it has previously been accepted that the Authority does not have jurisdiction to consider a complaint about a programme that is available on demand on the YouTube platform.
 However, the Authority has also previously accepted that it may consider complaints about a programme which is viewed on the internet where it has also been broadcast in full on television. In the decision of McKenzie and 95bFM the Authority found it had jurisdiction to consider a complaint about a programme simulcast on the internet and radio, stating:4
The Authority notes that the complainant heard the comment via the internet. While the Authority’s jurisdiction over internet content is limited, it accepts that a broadcast which is also simulcast on the internet does fall within its jurisdiction.
 We agree that this principle should apply in this case. If the programme has been broadcast on television or radio the relevant broadcasting code will apply to it and a complaint may be made about it. It logically follows that if a person may complain about content seen on television, then the identical programme seen on the internet should equally be subject to the Authority’s consideration. The only limitation is that the complaint must be made within 20 working days of the broadcast, which we understand was done in this case.
 We therefore find that the Authority has jurisdiction to consider this complaint about The Box Seat viewed on the internet.
 While it is not necessary for us to make a specific finding in this case, given our conclusion above, we also note that the definition of ‘broadcasting’ in the Act may be capable of encompassing content which is streamed in a scheduled way over the internet (ie where it is not accessed on demand):5
means any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus
This is because ‘other means of telecommunication’ is sufficiently broad to capture conveyance through the internet; and ‘broadcasting receiving apparatus’ includes any device which enables a member of the public to receive the transmission of programmes through the internet, most relevantly a computer or other mobile device.
 Therefore, in our view it may be open to the Authority to consider complaints on programmes shown on the stream of Trackside irrespective of whether or not there has been a simultaneous terrestrial broadcast.
The relevant code
 Previously, where the Authority considered a complaint about a programme that has been simulcast on the internet and television or radio, it has applied the code which would apply to the broadcast, had it not been viewed on the internet. In this case, that would be the Pay Television Code, as this is the code that applies to programmes broadcast on the SKY platform.
 As the broadcaster does not use a free-to-air television platform to broadcast, there is no basis on which to apply the Free-to-Air Television Code.
 The Pay Television Code is most suitable for the following reasons:
- The programmes in question were aired on SKY, to which the Pay Television Code applies.
- The broadcaster provides its broadcasting services in compliance with the Pay Television Code, being its primary broadcasting platform.
- It will not disadvantage the complainant to have his complaint heard under the Pay Television Code, given that the standards raised in the complaint are the same as those in the Free-to-Air Television Code, and there are only limited differences in the guidelines.
 For the reasons provided above, the Authority will consider the complaint under the Pay Television Code.
For the above reasons the Authority finds that it has jurisdiction to accept Mr Phillips’ referral of a complaint about the broadcasts by the Racing Industry Transition Association of Box Seat on Trackside on 8 and 15 May 2019, to be considered under the Pay Television Code.
Signed for and on behalf of the Authority
Judge Bill Hastings
17 September 2019
The correspondence listed below was received and considered by the Authority:
1 David Phillips’ original complaint (first page only) – 25 May 2019
2 RITA’s response (first page only) – 20 June 2019
3 David Phillips’ submissions on interlocutory issue – 28 June 2019
4 RITA submissions on interlocutory issue – 12 July 2019
1 A simulcast is the transmission of content played simultaneously on two or more platforms, for example, on radio and television, or on television and an internet platform.
2 Broadcasting Act 1989, s 2
3 Hurley and MediaWorks TV Ltd, Decision No. 2018-068 at 
4 McKenzie and 95bFM, Decision No. 2005-090 at 
5 Broadcasting Act 1989, s 2
6 McKenzie and 95bFM, Decision No. 2005-090 at ,  and