Review of Balance Decisions 2015
Date published: June 2015
Reviewer: Professor John Burrows
In May 2015 we invited Professor John Burrows to undertake an independent review of a selection of 10 BSA decisions on the Controversial Issues – Viewpoints ('Balance') standard. The report details his findings and his analysis of the BSA's approach and decision-making.
We asked Professor Burrows to assess:
- Whether the approach (including its evolution) taken by the Authority in these decisions is reasonable given the Broadcasting Act, the distinction between opinion and fact and the current news environment;
- How this compares with the evolution of this standard in international jurisdictions including the US, Australia and the UK;
- The legal robustness of the decisions and the quality of the legal reasoning;
- Style and structure – readability and clarity of the decisions;
- The degree to which the decisions provide guidance and useful clarity on the Authority's approach; and
- Consistency of approach (where possible given small sample size).
The report concluded that the BSA's interpretation of the balance standard and the general approach taken in the Codes and decisions, while liberal, is correct. The balance standard in the Codes 'glosses' the wording in the Act in a number of ways (for example confining the standard to news, current affairs and factual programmes, and reducing the broadcaster's obligation to present other views if the audience could reasonably be expected to be aware of them, or if the programme is presented from a particular perspective). However each 'stretch' of interpretation is more or less justified.
In Professor Burrows' view all 10 of the decisions he reviewed reached the correct outcome. The decisions are comparable to those of overseas regulatory bodies and are expressed in language accessible to ordinary people.
The report includes some suggestions and recommendations which the Authority will review and consider. For example, Professor Burrows suggested the reasoning could be slightly clearer where the BSA is advancing multiple arguments for dismissing a complaint. He also suggested that the BSA should consider differentiating between types of programme (length, style, purpose and format) as the 'one size fits all' approach of the balance standard can be problematic.