Explainer: Broadcasting Standards

What are broadcasting standards and how are they enforced?

Broadcasting standards were introduced in New Zealand by the Broadcasting Standards Act 1989 (“Act”). Section 4 of the Act provides that every broadcaster is responsible for maintaining programmes and presentation standards that are consistent with —

• observing good taste and decency;
• maintaining law and order;
• protecting the privacy of the individual;
• ensuring reasonable efforts are made to present significant points of view on controversial issues of public importance; and
• any applicable approved code of broadcasting practice.

The Act established the Broadcasting Standards Authority (“Authority”). The Authority is responsible for determining complaints, oversight and development of broadcasting standards, and education and engagement.

The Code of Broadcasting Standards in New Zealand contains the standards which the Authority will uphold in their decisions. The code requires that:

1. Broadcast content should not seriously violate community standards of taste and decency or disproportionately offend or disturb the audience;
2. Broadcasters should ensure children can be protected from content that might adversely affect them;
3. Broadcast content should not be likely to promote illegal or serious antisocial behaviour;
4. Broadcast content should not encourage discrimination against, or denigration of, any section of the community;
5. When controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should reasonably attempt to present significant viewpoints;
6. Broadcasters should make reasonable efforts to ensure news, current affairs, and factual content is accurate in relation to all material points of fact and does not materially mislead the audience;
7. Broadcasters should maintain standards consistent with the privacy of the individual; and
8. Broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast.

The Authority only determines complaints about programmes on TV and radio, as well as online and on-demand content that has previously been broadcast.

Some content which is not covered by the Authority (such as on-demand content not previously broadcast) is covered by the New Zealand Media Council (“NZMC”). However, the NZMC is an industry self-regulatory body and has no legally enforceable punitive powers.

How to make a complaint

All complaints through the Authority must meet the following requirements:

• be in writing;
• relate to a specific broadcast;
• be made within the required timeframe (usually within 20 working days of the broadcast); and
• include enough details to reasonably enable identification of the broadcast (e.g., date and time of the broadcast, title of the programme and the channel or station which broadcast the programme).

What is the complaints process?

A complaint, which is not privacy related, must first be made to the broadcaster (within 20 working days of the programme being broadcast). The broadcaster must then make a decision on the complaint within 20 working days(or 40 working days if an extension is requested) and send a copy of the decision to the complainant.

If a decision reached by a broadcaster is unsatisfactory or a written decision is not received before the deadline, the complaint can be referred to the Authority. The Authority then determines whether standards were breached and issues a written decision.

If the complainant is unhappy with the decision they can appeal to the High Court within one month of notification of the decision.  

What is the complaints process for privacy based complaints?

In the case of a complaint based on breach of privacy a complainant will have two options. They can either complain directly to the Authority or complain to the broadcaster first.

If a complaint is sent to the Authority, they will issue a written decision to the complainant. If the complainant is unhappy with the decision they can appeal to the High Court within one month.

If a complaint is sent to the broadcaster, they must send the complainant a decision within 20 working days (or 40 working days if an extension is requested). If the complainant is unhappy with the decision or it is not received by the deadline, they can refer the complaint to the Authority. If the complainant is unhappy with the decision of the authority, they may appeal to the High Court.

What remedies are available where standards have been breached?

The Authority has a number of remedies available to them where they find standards have been breached. These may involve ordering a broadcaster to:

• Broadcast a statement about the decision;
• Pay costs to the crown of up to $5,000;
• Pay compensation of up to $5,000 for a breach of privacy;
• Pay costs to the complainant, such as legal costs;
• Not broadcast advertisements for up to 24 hours;and
• Prevent further programmes in a series being broadcast.

The Authority may order costs against a complainant if it finds the complaint is frivolous or vexatious, or a complaint ought not to have been made.

What are some examples of successful complaints?

In Appleyard and NZME Radio Ltd, the claimant argued that the host of The Mike Hosking Breakfast had breached the accuracy standard. The host had responded to listener feedback which asked whether “striking teachers do all this on full pay” by saying “[w]ell of course they do! … people who go on strike have always been on full pay. They’re supported by the unions.”  

NZME did not initially uphold the complaint but, the Authority found that the response from the host was materially inaccurate. The Authority also found that text messages read out later in the programme did not constitute reasonable efforts to ensure accuracy. 

The Authority did not make orders as they considered publication of the decision to be sufficient.

 In McAulay and MediaWorks Radio Ltd the Authority did make orders. The complaint followed comments made by a talkback caller on Magic Talk’s Magic Mornings, which were endorsed by the host. The comments were found by MediaWorks to be denigrating towards Māori and breached the good taste and decency and discrimination and denigration standards.

MediaWorks upheld both complaints and in response held a number of internal meetings and implemented procedural changes in an effort to prevent similar incidents in the future.

This decision was then referred on to the Authority as the complainant did not think the response was enough. The Authority highlighted that the breach in this case was not a simple slip-up. The way the topic was framed by the host created an environment where such discriminatory comments were foreseeable and practically inevitable.

 Having upheld the complaint, the Authority made the following orders:

• The broadcaster must draft a statement summarising the upheld aspects of the decision, for approval by the Authority. The statement should be broadcast at a similar time, and on the same day of the week, as the original broadcast, in order to reach a similar audience.

• MediaWorks must pay to the Crown costs in the amount of $3,000 within one month of the date of the decision.

To understand more about this issue, please contact Director Brigitte Morten