Media Regulation: The Broadcasting Standards Authority (BSA) and the Media Council

Overview of Media Standards and the Broadcasting Standards Authority (BSA)

• Status of the BSA: The speaker notes that the Broadcasting Standards Authority may not exist in its current form in the coming year, suggesting potential legislative changes.
• The Code Book: The BSA's primary resource is the Code Book, which contains the standards, guidelines, and commentary. It serves as a digest of thousands of cases decided since 1990.
• Scope of Application: Standards generally apply to broadcasters (radio and television) rather than print or online-exclusive content (which falls under the Media Council).

The Accuracy Standard

• Definition and Scope: The standard asks: "Is it wrong in relation to news, current affairs, or factual content?"
  • It does not apply to fiction (e.g., movies).
  • It must involve a material point of fact. Trivial or technical errors are not actionable.
• Material Misleading: The error must materially mislead the audience, giving a wrong idea or impression of the facts.
• Correction Obligations: Broadcasters have an obligation to fix significant errors within a reasonable period and in a reasonable manner once identified.
  • Controversy: There is debate over whether a website correction is sufficient for an on-air error. The speaker argues that for significant errors affecting the audience, on-air corrections should be required.
  • Timing: If an error is identified months later when the public interest has faded, an on-air correction may be deemed less important.
• Rationale: The purpose is to ensure the audience is not significantly misinformed.
• Burden of Proof: While there is no formal onus, the broadcaster usually carries the burden of providing evidence to show they got the facts right once challenged.
• Fact vs. Opinion/Analysis: The standard does not apply to statements clearly distinguishable as analysis, comment, or opinion.
  • Factors for differentiation: Language used, program type (e.g., talkback vs. news), role/reputation of the speaker (authoritative vs. comedic), subject matter, and attribution of evidence.
  • Trend: The BSA has recently interpreted this exception widely.
  • Case Example: Martin Devlin on Sports Breakfast Radio. Devlin claimed someone had left Team New Zealand, stating "it hasn't come out yet." Team NZ denied it. The BSA ruled this was analysis/comment because of the "loose" nature of talkback, despite it appearing to be an assertion of fact.
• Reasonable Efforts: Broadcasters must make "reasonable efforts" to ensure accuracy.
  • Expert Sources: If a broadcaster interviews an expert who turns out to be wrong, they may not be in breach if the expert was reputable and there was no reason to doubt them.
  • Live vs. Packaged: Broadcasters are given more slack for live broadcasts. For prerecorded/edited segments, they have a higher responsibility to verify facts.
• The "Exception to the Exception": If a statement of opinion or analysis is based on a "foundational fact" that is false, the accuracy standard still applies to that foundational fact.
• Omission: Accuracy can be breached by leaving out a crucial fact (e.g., reporting a bankruptcy but omitting that it was overturned on appeal).

The Bolton Case: Reasonable Care vs. Factual Error

• Context: An academic interviewed on Radio New Zealand labeled Kerry Bolton a holocaust denier and accused him of infiltrating groups. Bolton complained the claims were false.
• BSA Initial Ruling: The BSA upheld the complaint, not because they proved the claims were false, but because RNZ failed to take "reasonable care" to verify the inflammatory statements in a prerecorded segment.
• High Court Appeal: Broadcasters argued that the BSA cannot uphold an accuracy complaint without first finding an actual inaccuracy.
• The Two-Step Test: The High Court ruled that to uphold an accuracy complaint, the BSA must find:
  1. An actual inaccuracy (a mistake).
  2. A failure to take reasonable care to get it right.
• Outcome: "Reasonable care" is a defense that can let a broadcaster off the hook, but it cannot be the sole basis for liability if an actual error is not proven.

The Balance Standard (Controversial Viewpoints)

• Statutory vs. Code Definition: The statute requires balance. The BSA Code adds a "rider" stating balance is not breached if viewers can reasonably be expected to be aware of significant viewpoints from other media coverage. The speaker questions the legality of this addition as it whittles down the statutory requirement.
• Thresholds for Balance:
  • Must be a "controversial issue of public importance."
  • Must be in news, current affairs, or factual programming.
  • Requires "reasonable efforts" to identify and include significant viewpoints.
  • Viewpoints should be presented within the period of current interest.
• Rationale: To enable the audience to arrive at an informed and reasoned opinion by hearing multiple sides.
• The "Discussion" Requirement: The BSA has ruled that for balance to apply, there must be a "discussion."
• Case Study: Michael Laws and Cindy Kiro (2012).
  • Laws spent three hours attacking a child poverty report by Children's Commissioner Cindy Kiro and Barnardo's.
  • Laws used aggressive language: "academically lazy," "crap research," "subversive," "deadbeat dads," "dropkick moms."
  • He claimed Maori parents would "piss [support] up against the wall."
  • The Ruling: The BSA found the balance standard was not breached because the program did not constitute a "discussion." Since it was a one-sided tirade and did not "purport to be a serious and even-handed examination," the obligation for balance never triggered.
  • Criticism: The speaker argues this creates a loophole: the more one-sided and biased a program is, the less it is required to be balanced.
• Exemptions to Balance:
  • Peripheral or brief/humorous asides.
  • Issues covered extensively in other media.
  • Programs that clearly notify the audience they are taking a single perspective (e.g., a documentary on one person's journey toward euthanasia).
  • Broadcasters with no editorial control (e.g., pass-through foreign feeds like BBC).

Freedom of Expression and Balance

• Compelled Speech: Balance requirements act as "compelled speech," which is viewed with suspicion in free speech theory.
• Counter-argument: The speaker suggests the balance standard supports free speech by enabling a flow of diverse information and protecting the audience's right to receive information.

The Fairness Standard

• Definition: Broadcasters should deal fairly with any individual or organization taking part or referred to in a program.
• Scope: Applies to all programs, not just news/current affairs.
• Purpose: To protect the dignity and reputation of those featured.
• Factors Considered:
  • Is it satire? (Satire is given more leeway).
  • Is it a public figure? Public figures must tolerate "trenchant criticism."
  • Vulnerability: Is the person a child, someone with a language barrier, or someone in distress?
• Types of Unfairness:
  • Doorstepping: Rolling up with cameras unannounced. Generally considered unfair unless all other contact methods (letters, calls) have been exhausted.
  • Unfair Editing: Cutting out context or explanations that change the meaning of an interviewee's words.
  • Deception: Using false identities to get information.
  • Personal Abuse: For public figures like Cindy Kiro, the BSA sets the threshold at "abusive personal territory." In the Kiro case, despite the harshness of Laws' comments, it was deemed "trenchant criticism" of a public figure rather than unfair personal abuse.

The Privacy Standard

• Two Strands (Mirroring Common Law Torts):
  1. Publication of private information: Disclosure of sensitive details (per Hosking).
  2. Intrusion into private affairs: Delving into solitude or seclusion (per C v Holland).
• BSA Specifics: There must be a broadcast for the BSA to have jurisdiction.
• Public Interest Defense: Requires a "nexus" (link) between the private detail disclosed and the public interest served. You cannot justify disclosing a politician's private sex life by claiming the program is generally about corruption unless those facts are linked.

Discrimination and Denigration

• Definition: A "mini-hate speech" standard. It prohibits content that encourages discrimination against or denigration of groups based on sex, sexual orientation, race, age, disability, religion, or political belief.
• High Threshold: It must be "nasty" or have a high level of condemnation.
  • Case Example: Voices of Islam. A program calling homosexuals "sick" and stating the punishment is death was upheld as a breach.
  • Case Example: Michael Laws/Exclusive Brethren. Laws calling the sect "nutter sect," "mad as hatters," and saying they should be "denackered" (castrated) so they can't breed was upheld.
• Exemptions: Factual reporting, serious commentary, and legitimate humor/satire.

Offensive and Disturbing Content (Taste and Decency)

• Focus: Sexual material, nudity, violence, and swearing.
• Contextual Factors: Warnings, time of broadcast (e.g., late night), and audience expectations (e.g., South Park).
• Talkback and the "Dump Button": Talkback producers have a roughly 10-second delay. They can hit a "dump button" to cut a caller off before the signal hits the airwaves. This is used to mitigate taste and decency breaches.

NZ Bill of Rights Act (NZBORA) and the BSA

• Mandatory Consideration: Every BSA decision, especially those upholding complaints, must be a "demonstrably justified" restriction on freedom of expression under Section 5 of NZBORA.
• TVNZ v West: The High Court ruled that the BSA must explicitly balance the importance of the speech against the harm caused.
  • High-value speech (investigative journalism, politics) requires a very strong justification for a breach.
  • Low-value speech (soap operas) requires less explanation, but still needs a documented balancing process.

Practical Case Study: Heather Du Plessis-Allan (2021)

• The Statement: Du Plessis-Allan stated on Newstalk ZB that people shouldn't be afraid to visit Opotiki because the Bay of Plenty's first-dose vaccination rate was $92\%$.
• The Reality: While the regional rate was $92\%$, Opotiki's first-dose rate was $81\%$ and the double-dose rate (which matters for protection) was only $66\%$.
• Ruling: The BSA upheld the accuracy complaint. Although her statement was technically true regarding the region, it was misleading in context regarding the specific welfare of the Opotiki community during a health crisis.

BSA Criticisms and Complaint Procedures

• Low Uphold Rates: The BSA has a very low uphold rate, previously targeting a rate of only $12\%$.
• Cost Recovery: Successful complainants only recover about one-third of their legal costs.
• Procedures:
  • Deadline: 20 working days to complain to the broadcaster.
  • Transcripts: The speaker strongly recommends making a verbatim transcript immediately, as content can be removed quickly.
  • Field Tapes: You can ask the BSA to order the broadcaster to handover raw footage ("field tapes") to check for unfair editing.

The Media Council (Print and Online)

• Nature: An industry-funded body (non-statutory).
• Jurisdiction: Newspapers, magazines, news websites (e.g., Stuff, NZ Herald), and digital content of broadcasters.
• Structure: 11 members (6 public, 5 industry). Often chaired by a former judge.
• The "Waive Right to Sue" Rule: To use the Media Council, you must agree not to sue for defamation in court and sign away the right to judicial review (the latter is likely legally invalid).
• Remedies: They cannot award damages or costs. They can order the publication of a summary of the decision with "fair prominence" or order a correction/retraction.
• Uphold Rate: Generally higher than the BSA (two to three times higher).
• Deadline: Complaints must be made to the editor within one month of publication. If unsatisfied, the complainant has 10 working days to escalate to the Council.

Summary of Complaints Statistics

• BSA Uphold Rate Target: $\approx 12\%$
• Judiciary Uphold Analogy: Civil cases uphold $\approx 45\%$
• Legal Costs Recovery: $\approx 33.3\%$
• Complainant Success Frequency: Rare; often only results in a published find rather than financial penalty.