APRIL 2016

BROADCASTING STANDARDS IN NEW ZEALAND

FOR RADIO, FREE-TO-AIR-TELEVISION & PAY TELEVISION DEVELOPED BY BROADCASTERS AND THE BSA AND ISSUED TO TAKE EFFECT FROM 1 APRIL 2016

In the case of any inconsistency between this Codebook and any predating BSA material such as codes, practice notes and advisory opinions, this Codebook will prevail. BROADCASTING STANDARDS IN NEW ZEALAND

BROADCASTING STANDARDS AUTHORITY - TE MANA WHANONGA KAIPAHO

LEVEL 2 | 119 GHUZNEE STREET PO BOX 9213 | WELLINGTON 6141 | NEW ZEALAND (04) 382 9508 | FREEPHONE: 0800 366 996

WWW.BSA.GOVT.NZ 1 / Broadcasting Standards Authority CONTENTS

INTRODUCTION 03 THE FREE-TO-AIR

The Broadcasting Standards Authority 04 TELEVISION CODE 32

Broadcasters 05 Standard 1 – Good Taste and Decency 35 Freedom of Expression 06 Standard 2 – Programme Information 35 Choice and Control 07 Standard 3 – Children’s Interests 36 Standards, Guidelines and Commentary 08 Standard 4 – Violence 36 Definitions 09 Standard 5 – Law and Order 36 Standard 6 – Discrimination and Denigration 37 COMMENTARY ON Standard 7 – Alcohol 37 Standard 8 – Balance 39 THE STANDARDS 10 Standard 9 – Accuracy 39 Standard 10 – Privacy 41 THE RADIO CODE 22 Standard 11 – Fairness 41

Standard 1 – Good Taste and Decency 25 Standard 2 – Programme Information 25 THE PAY Standard 3 – Children’s Interests 25 TELEVISION CODE 42 Standard 4 – Violence 26 Standard 1 – Good Taste and Decency 45 Standard 5 – Law and Order 26 Standard 2 – Programme Information 45 Standard 6 – Discrimination and Denigration 26 Standard 3 – Children’s Interests 46 Standard 7 – Alcohol 27 Standard 4 – Violence 47 Standard 8 – Balance 29 Standard 5 – Law and Order 47 Standard 9 – Accuracy 29 Standard 6 – Discrimination and Denigration 47 Standard 10 – Privacy 31 Standard 7 – Alcohol 48 Standard 11 – Fairness 31 Standard 8 – Balance 50 Standard 9 – Accuracy 50 Standard 10 – Privacy 52 Standard 11 – Fairness 52 Contents

COMPLAINTS PROCESS AND OTHER GUIDANCE 53

Complaints Process Step by Step 54 Guide to the BSA Complaints Process for Television and Radio Programmes 55 Guidance: Privacy 59 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion 62 Guidance: BSA Power to Decline to Determine a Complaint 63 Guidance: Costs Awards to Complainants 66

Broadcasting Standards in New Zealand Codebook 03 / Broadcasting Standards Authority INTRODUCTION

The Broadcasting Act 1989 (the Act) The Act also establishes a system allowing people to creates a system of broadcasting complain to a broadcaster if they think these standards have been breached. People who are dissatisfied with standards. There are eleven areas the broadcaster’s response to their complaints can specified in the Act from which refer them to the Broadcasting Standards Authority for standards have been developed. independent determination. This Codebook contains the three main Codes of Broadcasting Practice and is They are: designed to provide guidance to broadcasters and their audiences on the standards. There is a separate code • Good taste and decency s4(1)(a) for election programmes. • Programme information s21(1)(e)(vi) New Zealand is a liberal democracy where we value • Children’s interests s21(1)(e)(i) broadcasters’ programming, both as an exercise of • Violence s21(1)(e)(ii) broadcasters’ right to freedom of expression and for the vibrant exchange of information and ideas that • Law and order s4(1)(b) is generated. Broadcasters can hold the powerful to • Discrimination and denigration s21(1)(e)(iv) account. They can express our identity. They can reflect • Alcohol s21(1)(e)(v) and stimulate culture. They can teach us about our lives and our world. They can entertain us. Their role is • Balance s4(1)(d) vital, and the law and common sense require us to be • Accuracy s21(1)(e)(iii) cautious before restricting their endeavours.

• Privacy s4(1)(c) and s21(1)(e)(vii) On the other hand, broadcasters also have potential • Fairness s21(1)(e)(iii) to do harm. Broadcasting standards recognise these harms and seek to guard against them. It can often be difficult to strike a balance. It is the responsibility of this Authority to hold the balance in the public interest. THE BROADCASTING 04 STANDARDS AUTHORITY Introduction

The Broadcasting Standards Our jurisdiction under the Act covers television and Authority (BSA) is a Crown entity. radio broadcasting. It also extends to complaints about programmes that are viewed/listened to online, so It is funded partly by government long as the programmes were originally broadcast on and partly by contributions from television or radio; the complainant can provide us with broadcasters. Our board comprises the details of the original broadcast; and the complaint is made within the statutory timeframe. We are not four members, one of whom is the able to consider any online material which has not also nominated Chair. We have a small been broadcast. Further information on the complaints staff in our office in Wellington. process, including where you can go if your complaint concerns something that is not covered by the BSA, One of our main functions is to determine complaints can be found in the Guide to the BSA Complaints which complainants may consider have not been Process for Television and Radio Programmes at the properly dealt with by the broadcaster. back of this Codebook.

We deal with complaints without undue formality. We We have two other functions. We have a role in consider these complaints on the written material overseeing and developing the broadcasting standards supplied. Sometimes we ask for more information system, which includes working with broadcasters and we can, if necessary, convene a hearing. We try and others to provide clear guidance on the system, to to conduct our business efficiently but informally and review codes, and undertake appropriate research. We without causing unnecessary cost for complainants, are also required to provide information about the work broadcasters and also within our own organisation. Our we do and the broadcasting standards system generally. decisions are required to be made public. We are accountable to the Minister of Broadcasting We are required to deal with complaints fairly and to for the fulfilment of our obligations and for our observe the rules of natural justice. expenditure. We are nevertheless an independent body and we are not subject to any political or other We also acknowledge the principles of partnership, influences in our decision making. protection and participation inherent in Te Tiriti o Waitangi and consider the needs, aspirations and cultural values of tangata whenua.

Broadcasting Standards in New Zealand Codebook 05 / Broadcasting Standards Authority BROADCASTERS

New Zealand broadcasters range Te Reo and Ma-ori culture have a special significance in from very large commercial New Zealand’s multicultural society and this is reflected in our broadcasting environment. organisations through to very small Each broadcasting platform contains a variety of community-based operations. Only programming to cater for the diversity of language, television and radio broadcasters are genres and expectations of its audience and this is subject to the Broadcasting Act. The reflected in the corresponding code. The diversity of platforms has resulted in the development of three Act and the standards which arise different codes for different methods of delivering under the Act apply to all television broadcasts – one each for radio, free-to-air television and radio broadcasters regardless of and pay television. Together with the election the size of their operation. programmes code, these codes cover all broadcast material that falls within our jurisdiction.

In order to meet the diverse needs and expectations of All broadcasters are expected to retain recordings of all viewers and listeners, material broadcast on different broadcasts for 35 days. In the event of a complaint, this platforms and by different broadcasters may vary widely. assists the broadcaster to argue their point of view and We have moved from a time when messages were always ensures the BSA gains a correct understanding of the conveyed in English to the present time where English is content, context and tone of the broadcast. one of the many languages used by broadcasters. FREEDOM OF 06 EXPRESSION Introduction

In New Zealand and throughout most loss caused by the encroachment on the right to freedom liberal democracies, principles of of expression. The more severe the restriction on the right to freedom of expression, the more powerful must be the freedom of expression are enshrined justification for the restriction. in our constitutional law by the Bill of For us, this is about assessing in each case, how important Rights Act 1990 and are required to be the right to freedom of expression is on the one hand and on given the respect they deserve. The the other, how much harm the broadcast has done to people in society by potentially breaching broadcasting standards. right we have to express ourselves The level of public interest in a broadcast is particularly in the way we choose, and to receive important (see the definition of ‘public interest’ on page information, is a fundamental 9, and further elaboration of ‘legitimate public interest’ freedom but it is not an absolute within Guidance: Privacy at page 61). If it deals seriously freedom. It is nevertheless to be given with political issues or other topics that help us govern ourselves and hold our leaders accountable it will carry a a very high value and doing so will high level of public interest. If it contributes to our search mean that in some cases the cost of for truth and knowledge or nurtures our social, cultural our having this freedom will be a cost and intellectual growth it will also carry a high level of public interest. In New Zealand we must be particularly to be carried by our society. hesitant before imposing limitations on material in which there is high public interest. The importance of freedom of expression is such that, at some times, the exercise of it will cause offence to be Conversely, broadcasting standards exist to ensure that taken by some or will result in harm being felt by some. broadcasters do not (for example) misinform us about Ultimately, there is a sensible balance to be struck. important things, or unfairly harm the dignity or reputation of the people they feature, or leave out significant The broadcasting complaints system places restrictions viewpoints when telling us about issues that matter to us. on the right to freedom of expression. Freedom of The more a broadcaster threatens these vital interests, expression, including the broadcaster’s right to impart the more readily we will be required to conclude that it ideas and information and the public’s right to receive that is appropriate to uphold a complaint, notwithstanding information, is the starting point in our consideration of principles of freedom of expression. complaints. We may only uphold complaints where the limitation on the right is reasonable, prescribed by law and Ultimately, this is a balancing process. In this publication demonstrably justified in a free and democratic society. we set out the standards which Parliament has said are required to be established and maintained. In appropriate This is often described as ‘proportionality’. Proportionality cases, the upholding of these standards will mean that the can be used as a check to ensure that the social benefit right of freedom of expression has to be limited. of the decision to uphold a complaint exceeds the social

Broadcasting Standards in New Zealand Codebook 07 / Broadcasting Standards Authority CHOICE AND CONTROL

The level of choice and control that to on all platforms. The established brand identity of a viewers and listeners have over the particular programme, channel or station also helps to inform the viewer or listener about what content to content they expose themselves expect. Some broadcasts will be designed to cater for to impacts on the application of particular interest groups and these broadcasts may be the standards. The freedom and able to contain material which will not be suitable for general delivery in mainstream consumption time, on capacity of an audience to make free-to-air television and radio.

viewing and listening choices and Pay television overall enjoys a less restrictive to be able to prevent children and environment than free-to-air television. This is young people from viewing or because of the choice customers make in paying listening to inappropriate material to receive broadcasts and the protections they can provide to prevent inappropriate content being viewed are significant factors in determining by children and young people, including filtering what is, and what is not, acceptable. technology and PIN codes. Broadcasters are more likely to have Since the switch from analogue to digital television, fulfilled their responsibilities when viewers of free-to-air television are also now able to block content by using filtering technology and PIN they enable customers to regulate codes. Although this technology is already widely their own media listening and available, at the time of publishing this Codebook, viewing behaviour. public awareness of its availability is not yet widespread. Once it can be demonstrated that the availability of Broadcasters do this in a number of ways. protections is well-known, it is expected that the Free- Classifications enable viewers to exercise choice as to-Air Television Code will require further review and to what to watch on television (both free-to-air and modification. Our industry is rapidly changing and in pay television). Scheduling and time of broadcast (on this context, the Codebook must evolve as necessary to free-to-air television and radio) also inform this choice. remain relevant and fit for purpose. It is expected that Audience advisories (including warnings) enable choice reviews of the codes will take place with more frequency about what viewers and listeners want to be exposed than in the past to accommodate this. STANDARDS, 08 GUIDELINES AND

COMMENTARY Introduction

In this section we set out the filtering technology which allows viewers to block certain broadcasting standards. All eleven content. It is noted, however, that free-to-air viewers are now able to access filtering technology and use standards apply to all television and PIN codes, and it is expected this availability may soon radio broadcasts. These standards become widely known by audiences. This shift will be have their origins in the Act, which relevant context for the Authority in assessing whether standards have been breached. became law in 1989. In 1989 Additionally, pay television broadcasters may offer broadcasting was very different, channels over which they have no (or little) editorial with limited platforms and clear control (for example, foreign pass-through channels). demarcations between broadcasting This limited control of the broadcaster will be an formats. However, we are required important consideration when assessing whether a programme has breached standards. However, it is to apply the Act as it stands and expected that generally a pay television broadcaster will deal with the standards as they were be mindful of the standards and exercise appropriate shaped in 1989. This does not mean discretion and judgement when determining which channels should be allowed to pass through its platform. that broadcasting standards have In relation to each code, this Codebook sets out the been frozen in the past. standards and guidelines, and elaborates on these in the commentary. It is the wording of the standard and We apply the standards according to contemporary its objectives which are paramount when determining social requirements and conditions. We are now in a whether the standard has been breached. Guidelines and very different world and our application of the standards commentary inform the interpretation of the standard. reflects our present broadcasting environment. In They will allow flexibility in application and interpretation addition, in the application of standards we must if circumstances or context require. continue to adjust to societal and technological change. The Codebook will only be amended after consultation The codes for each broadcasting platform – radio, with broadcasters and other interested parties in free-to-air television and pay television – are set out accordance with the Act. Our industry is rapidly changing separately. The standards are the basic rules which apply and in this context, the Codebook must evolve as according to the different platforms of broadcasting. required. It is expected that reviews of the codes will How those rules are applied will vary according to the take place with more frequency than in the past. As particular circumstances. While the standards are noted above, the BSA is already aware of one imminent similar – the statute does not limit the application of development which we expect will trigger a review – one some standards to some platforms – they will be applied which relates to the availability of protections on free- differently in relation to pay television than they will be in to-air television which are similar to those which had relation to free-to-air television or radio. This recognises historically only been available on pay television (see the special circumstances of pay television, including Choice and Control on the previous page). that viewers choose to pay to subscribe to particular programmes and channels, and the availability of Broadcasting Standards in New Zealand Codebook 09 / Broadcasting Standards Authority DEFINITIONS In this Codebook, unless otherwise indicated, a word or expression assigned a meaning in the Act has the meaning given there. In respect of other words or expressions, the following meanings shall apply unless otherwise indicated.

Act means the Broadcasting Act 1989. PGR – Parental Guidance Recommended: Advisory Opinion means an opinion issued pursuant to Programmes containing material more suited for s21(1)(d) of the Act. mature audiences but not necessarily unsuitable for child viewers when subject to the guidance of a Alcohol promotion may be in the form of one or more of parent or an adult. the following: PGR programmes may be screened between 9am • promotion of an alcohol product, brand or outlet and 4pm, and after 7pm until 6am. (‘promotion’) • alcohol sponsorship of a programme AO – Adults Only: Programmes containing (‘sponsorship’) adult themes and directed primarily at • advocacy of alcohol consumption (‘advocacy’). mature audiences. AO programmes may be screened between midday Audience means the viewers and listeners of both and 3pm on weekdays (except during school and television and radio. public holidays, as designated by the Ministry of Audience advisory means a message or warning Education) and after 8.30pm until 5am. broadcast prior to a programme or particular content. It may be verbal, visual or both. It should be broadcast Classifications (pay television) means the immediately prior to content which is likely to disturb, classifications that should be broadcast on all pay distress or offend a significant number of viewers. On pay television programmes except news, current affairs, television, audience advisories include: sports and live content. The classifications are: C – content may offend G – approved for general viewing L – language may offend PG – parental guidance recommended for V – contains violence younger viewers S – sexual content may offend M – suitable for mature audiences 16 years and over Authority means the Broadcasting Standards Authority. 16 – people under 16 years should not view Child, where referring to an audience member, means 18 – people under 18 years should not view a person under the age of 14. In privacy cases, a parent, Doorstepping refers to the filming or recording of an guardian or person over the age of 18 acting in loco interview or attempted interview with someone, without parentis (standing in the shoes of the parent or guardian) any prior warning. may consent on behalf of a child under the age of 16. Factual programmes/Factual programming means Children’s normally accepted listening times are non-fiction programmes which contain information that usually up until 8.30pm and especially before school audiences might reasonably expect to be authoritative and after school. or truthful. Children’s normally accepted viewing times for free- Premium channel means a pay television channel that to-air television are usually up until 8.30pm and/or subscribers choose to subscribe to and pay a subscription during G or PGR programming (see below). fee for, in addition to the entry level fee already paid for Classifications (free-to-air television) means the the basic provision of the pay television service. classifications that should be broadcast on all free-to- Public interest refers to a matter of concern to, or air television programmes except news, current affairs, having the potential to affect, a significant section of the sports and live content. The classifications are: New Zealand population. It is more than something that G – General: Programmes which exclude material merely interests the public. likely to be unsuitable for children. Programmes Strong adult content means a greater degree of sexual may not necessarily be designed for child viewers activity, potentially offensive language, realistic violence, but should not contain material likely to alarm or sexual violence or horrific encounters, which go beyond distress them. audience expectations of usual Adults Only content. G programmes may be screened at any time. 10 Commentary

COMMENTARY ON THE STANDARDS

Broadcasting Standards in New Zealand Codebook 11 / Broadcasting Standards Authority

PART 1 STANDARDS WHICH RELATE TO SOCIAL RESPONSIBILITIES The freedom andcapacity ofanaudience to choose customers make inpayingto receive broadcasts. than free-to-air television because ofthechoice Pay television operates in aless restrictive environment language, sexual material or,sometimes,violence. In aradio context thisisusually inrelation to offensive in awaythatislikely to cause offence ordistress. violence, butmayalsoapply to othermaterial presented relation to offensive language,sexual material, nudityand In television thisstandard isusually considered in context inwhichitisoffered, maygotoo far. factors. Someextreme material, regardless ofthe will dependonitsparticularfacts andrelevant contextual issues isunlikely to contravene thisstandard. Eachcase otherwise advances ourunderstanding ofimportant political, cultural, scientificorsocialsignificance orthat offensive material thatisintegral to aprogramme of narrative, ismore likely to beacceptable. Similarly, on anews programme orasacentral partofadramatic example, challenging material broadcast late atnight, television whenfiltering technology isavailable). For The timingofabroadcast isrelevant (except for pay of distasteful material orminimiseitsharmfulness. this. Abroadcast’s context mayjustify theinclusion Context iscrucial,andthedifferent codes reflect of taste anddecency. broadcast must notseriously violate community norms However, there are limits,and thebroad limitisthata cannot beallowed to dictate whatcan bebroadcast. matters oftaste. Thefeelings oftheparticularly sensitive Caution must therefore beexercised whenconsidering continue to evolve inadiverse societysuchasours. Attitudes towards taste anddecency differ widely and or underminewidely shared community standards. are likely to cause widespread undueoffence ordistress members from viewing orlistening to broadcasts that The purposeofthisstandard isto protect audience AND DECENCY STANDARD 1–GOODTASTE

standards often apply to programmes ofthiskind. robust andsometimeschallenging nature, anddifferent has become aseparate category ofbroadcasting dueto its legitimately select andschedule content. Talkback radio established target audiences andtheseallow stations to programmes orchannels.Radiostations usually have programme guides)aboutthecontent ofparticularTV include disseminating information (for example, through advisories before orduringaprogramme. Itmayalso are less likely. Thatmayincludeinformative audience them to make informed choices aboutcontent, breaches expectations byproviding information sufficientfor to it.Ifbroadcasters successfully managetheiraudiences’ material orsupervisetheirchildren’savoid this exposure Audiences whoknow whatthey are gettingcan usually In allbroadcasting, audience expectations are crucial. codes andanelectronic programme guide. advisories (includingwarnings),filtering technology, PIN these protections through appropriate classifications and do notwishto doso. Pay television broadcasters provide ensure thatitisnotinadvertently viewed bythosewho by children andyoung people, andstrong protections to protections inplace to prevent thismaterial beingviewed accessed ontelevision. However, there must bestrong follows thatsomematerial ofthiskindwillbeable to be material isreadily accessible inoursocietyandit not, acceptable. Violent andotherpotentially offensive significant factors indetermining whatis,andis young people from viewing inappropriate material are what itviews andto beable to prevent children and own, andtheirchildren’s, viewing orlistening behaviour. likely content, which inturnallows themto regulate their information to give themanindication ofaprogramme’s rely onprogramme classifications, advisoriesandother programmes onoffer. Theaudience shouldbeable to are properly informed aboutthecontent ofthe The purposeofthisstandard isto ensure thataudiences INFORMATION STANDARD 2–PROGRAMME Broadcasting Standards inNew ZealandCodebook 12 Commentary 13 / Broadcasting Standards Authority

The application of this standard differs markedly across Context is important in a consideration of this the codes, reflecting the different platforms from which standard, including: content is delivered. Primarily, the difference is in the • the programme classification application, or not, of classifications and timebands to • the time of broadcast (on free-to-air television programme content. In general, all broadcasters should and on radio) provide audience advisories where broadcasts contain violence, sexual material, offensive language or other • any pre-broadcast advisories (including warnings) content likely to disturb or offend a significant number of viewers, to assist the audience in choosing programmes. • the nature of the programme

In the free-to-air television context, there are clearly • the availability of filtering technology defined classifications and corresponding timebands • the target audience of the channel/station and (G, PGR and AO). There are no such timebands on radio, of the particular programme or segment though it is recognised that children are more likely to • audience expectations of the channel/station, of be listening at certain times of the day, which are broadly the programme or of a particular host consistent with children’s viewing times on free-to-air or presenter television (for example, before and after school, up until • other information available to the audience about 8.30pm on weekdays, and on weekends). the programme, including publicity and promos.

Pay television uses a different system of classifications In general, for free-to-air television, the standard will and audience advisories. Broadcasters fulfil their only apply during times that children are likely to be obligations by providing regular and consistent advice watching television. Usually, this will be up until 8.30pm, about programmes, including classifications and or during G and PGR time. Broadcasters should also advisories (such as warnings), to enable their customers carefully consider children’s interests when determining to make informed viewing decisions. They also promote the level of AO content to be screened during the the availability of filtering technology allowing parents transition from G or PGR programming to AO time. and guardians to control their children’s viewing. It There are no prescribed timebands on radio or on pay is only where this filtering technology is not available television as there are on free-to-air television. On radio, that broadcasters must also ensure programmes are the standard will generally only apply during times appropriately scheduled. that children are likely to be listening to the radio (for example, before and after school, and usually up until STANDARD 3 – CHILDREN’S 8.30pm on weekdays, and on weekends). INTERESTS On pay television, children’s interests are served through The purpose of this standard is to enable audiences to channels specifically targeted at niche audiences, and protect children from material that unduly disturbs them, the availability of filtering technology which allows is harmful, or is likely to impair their physical, mental or parents and caregivers to block certain content, which social development. then requires a PIN number to be entered in order to

The standard is designed to protect children when unblock that content. viewing and listening to broadcasts. If a complaint We recognise that it is not possible or practicable for relates to a child having been featured or referred to broadcasters to shield children from all potentially in a programme, this may raise matters of fairness or unsuitable content. The objective is to allow broadcasters privacy and should be dealt with under those standards. to broadcast to a wide audience – or in the context of may include: Relevant contextual factors that will be considered content is likely to disturb a significant number of viewers. adequately informed of likely content and warned if is justified by context, and by ensuring viewers are should protect audiences by ensuring violent content material or minimise its harmfulness. Broadcasters broadcast’s context may justify the inclusion of violent Context is crucial, and the different codes reflect this. A unduly disturbing violent content. The purpose of this standard is to protect audiences from STANDARD 4–VIOLENCE the general goodtaste anddecency standard. children’s interests standard maybemore rigorous than when considering theaudience ingeneral. Thus,the harmful to children maynotbeharmfulorunexpected be uniqueto children; content thatcould beconsidered focus. Thefocus ofthisstandard isonharmthatmay contextual factors. However, there are differences in information standard, whichtake into account thesame good taste anddecency standard and theprogramme The children’s interests standard isrelated to the about theavailability ofthistechnology. to broadcast content, to provide information to viewers filtering technology, orothermeansofcontrolling access technology. We expect allbroadcasters whoutilise pay television, alsothrough theavailability offiltering adequate information for viewers andlisteners, and,on while taking reasonable steps to protect children through audiences whochooseto subscribeto specialchannels– pay television, to offer awiderange ofcontent to niche • • • • • the availability offiltering technology the nature oftheprogramme any pre-broadcast advisories the timeofbroadcast (onfree-to-air television the programme classification (including warnings) and radio)

why the standard is included in that code. sports events, talkback or fictional programmes, which is discuss violence, for example, in news and current affairs, Nevertheless, radio broadcasts may also describe or television, where it is depicted visually as well as aurally. We recognise that violent material has more impact on advisories are given. adult content screens after 9.30pm and that appropriate air television broadcasters should ensure that strong to be entered in order to unblock it for viewing. Free-to- block certain content, which then requires a PIN number available filtering technology which allows viewers to do not wish to do so. Most pay television providers make ensure that it is not inadvertently viewed by those who by children and young people, and strong protections to protections in place to prevent this material being viewed accessed on television. However, there must be strong follows that some material of this kind will be able to be Violent material is readily accessible in our society and it depictions ofactualmurders orrapes. unacceptable inanycontext, for example, graphic technology, somematerial maynevertheless besocially classifications, warningsandtheavailability offiltering audience advisoryisbroadcast. Even withappropriate context, provided itisappropriately classified andan pay television depictionofviolence willbejustified by what is,andisnot,acceptable. Inmost cases, a inappropriate material are significant indetermining to prevent children andyoung people from viewing capacity ofanaudience to choosewhatitviews and In thecontext ofpaytelevision, thefreedom and • • • • other information available to theaudience about audience expectations –for example, violent the target audience ofthechannel/station and whether theviewer haspaidto watch the programme, includingpublicityandpromos. narrative, ismore likely to beacceptable programme orasacentral partofadramatic material broadcast late atnight,onanews of theparticularprogramme orsegment the broadcast Broadcasting Standards inNew ZealandCodebook 14 Commentary 15 / Broadcasting Standards Authority

STANDARD 5 – LAW AND ORDER The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal The purpose of this standard is to prevent broadcasts processes. Direct incitement to break the law is likely to that encourage audiences to break the law, or otherwise breach this standard, if there is a real likelihood that the promote criminal or serious antisocial activity. audience will act on it. Broadcasts which condone criminal Context is crucial in assessing the programme’s likely activity or present it as positive or humorous may have this practical effect. A distinction will usually be drawn effect. Explicit instructions on how to perform a criminal between factual, and fictional or dramatic depictions, technique may also undermine law and order.

and the level of public interest in a programme will be a Serious antisocial activity is activity that is contrary to significant factor for consideration. the laws and customs of society to such a degree that a Other important factors include: significant number of people would find it unacceptable. It is broader than illegal activity and can include behaviour • the programme classification that is not necessarily illegal but may nonetheless be • the time of broadcast (on free-to-air television antisocial, for example, bullying. and radio) In most cases, context will permit a pay television • any pre-broadcast advisories (including warnings) depiction of illegal activity, provided it is appropriately classified and an audience advisory is broadcast, because • the nature of the programme of the choice made by, and the range of material available • the availability of filtering technology to, subscribers, and the availability of filtering technology. • whether the viewer has paid to watch the broadcast STANDARD 6 – DISCRIMINATION • the target audience of the channel/station and AND DENIGRATION of the particular programme or segment The purpose of this standard is to protect sections of the • audience expectations – for example, material community from verbal and other attacks, and to foster a broadcast late at night, on a news programme or as a central part of a dramatic narrative, is more community commitment to equality. The standard does likely to be acceptable not apply to individuals or organisations, which are dealt with under the fairness standard. • other information available to the audience about the programme, including publicity and promos. The standard applies only to recognised ‘sections of the community’, which is consistent with the grounds for This standard does not stop broadcasters from discrimination listed in the Human Rights Act 1993. discussing or depicting criminal behaviour or other law-breaking, even if they do not explicitly condemn that ‘Discrimination’ has consistently been defined as behaviour. It does not require broadcasters to promote encouraging the different treatment of the members of law and order. It does not prevent genuine criticism – a particular section of the community, to their detriment even provocative criticism – of laws or their enforcement (for example, see BSA decision Teoh and Television by the courts and police. New Zealand Ltd, 2008-091). ‘Denigration’ is defined as following factors will be considered: In assessing whether a broadcast has gone too far, the hate speech or a sustained attack on a particular group. standard unless the content of the broadcast amounts to valuable forms of speech, and are unlikely to breach the programmes, legitimate drama, humour and satire, are part of living in a democracy. Serious commentary, factual frank expression of a wide range of views is a necessary rude; the Codebook recognises that allowing the free and group, because they offend people, or because they are standard simply because they are critical of a particular in breach of the standard. Comments will not breach the a broadcast encouraged discrimination or denigration malice or nastiness, will be necessary to conclude that a high level of condemnation, often with an element of The importance of freedom of expression means that RadioWorks Ltd, 2006-030). see BSA decision devaluing the reputation of a class of people (for example, • • • • • • whether thecomments madealegitimate whether thecomments were repeated whether thecomments appeared intended the forum inwhichthecomments were made, the tone ofthe person makingthecomments the languageused gratuitous andcalculated to hurtoroffend. contribution to awiderdebate, orwere or sustained clearly exaggerated to betaken seriously, orwhetherthey were a satirical piece for example, aseriouspolitical discussion, or Mental HealthCommission andCanWest law or regulation relating to the promotion of alcohol. The application of the standard will also be qualified by any be ‘socially irresponsible’ if: Alcohol promotion in a broadcast will usually be found to event or activity. portrays alcohol consumption as a necessary part of an particularly, excessive alcohol consumption – or if it if it presents alcohol consumption in a positive light – brands or products. A broadcast will amount to ‘advocacy’ are usually readily identified by references to alcohol Broadcasts which contain ‘promotion’ or ‘sponsorship’ assessing whether the standard has been breached: the context of their genre. We apply a two-stage test when which promote alcohol in a socially irresponsible way in The purpose of this standard is to prevent broadcasts STANDARD 7–ALCOHOL • • • • • 2. 1. it combines alcohol andanotheractivityin it involves excessive alcohol consumption it fails to acknowledge thenegative effects it isdominated byalcohol promotion it portrays excessive alcohol consumption If thebroadcast didamountto alcohol promotion, Did thebroadcast amountto alcohol promotion, a waythatendangers healthandsafety. by young people of alcohol consumption as positive anddesirable was thatalcohol promotion socially responsible? ‘advocacy’? (seeDefinitions,page9) in theform of‘promotion’, ‘sponsorship’ or Broadcasting Standards inNew ZealandCodebook 16 Commentary 17 / Broadcasting Standards Authority

PART 2 STANDARDS WHICH RELATE TO INFORMATION BROADCAST issues ofpublicimportance. or personal stories willnotbeconsidered controversial ongoing publicdebate. Inmost cases, human interest conflicting opinionoraboutwhichthere hasbeen issue willbeonewhichhastopical currency andexcites to, members oftheNew Zealandpublic.Acontroversial have asignificant potential impacton,orbeofconcern An issue ofpublicimportance issomethingthatwould be ‘controversial’ anditmust be‘discussed’. matter must beanissue ‘ofpublicimportance’, itmust controversial issue ofpublicimportance. Thesubject under Standard 9–Accuracy below), whichdiscuss a affairs andfactual programmes (seethedefinition is triggered. Thestandard appliesonly to news, current requirement to present significant alternative viewpoints A numberofcriteria must besatisfiedbefore the a particularissue. time, ‘withintheperiodofcurrent interest’ inrelation to The standard alsoallows for balance to beachieved over modern anddiverse broadcasting world. always befact- andcontext-dependent to reflect this public. Decisionsmadeunderthebalance standard will political perspective, andamore discriminatingviewing media, mediawhichisconsciously delivered from a us ontopics ofallkinds, theproliferation ofbroadcast the increased flows ofinformation whichnow pass over present broadcasting environment inNew Zealandand required. Consideration ofthisstandard willreflect the programmes cannot beperfectly balanced andthisisnot the standard. We acknowledge thepractical reality that A common senseapproach shouldbetaken inapplying principles offreedom ofexpression. open anddemocratic societyandisconsistent withthe informed public–isimportant to theoperation ofan reasoned opinion.Theobjective ofthisstandard –awell- to enable theaudience to arrive ataninformed and viewpoints aboutsignificant issues are presented The purposeofthisstandard isto ensure thatcompeting STANDARD 8–BALANCE undermines itsvalidity). is presented withlimited coverage or inamannerwhich perspective (for example, where asignificant perspective misinformed bytheomission ortreatment ofasignificant programme, andwhetherthey were likely to have been A key consideration iswhatanaudience expects from a standard, thefollowing factors willbeconsidered: In determining whetherprogrammes breach this Ltd, 2012-130). example, BSAdecisionSmithandTelevisionNewZealand which arewhollybasedonopinions orideas(see,for 2006-126). Thesecanbedistinguished fromprogrammes Compensation Corporationand TelevisionNewZealandLtd, documentaries (see,forexample,BSAdecisionAccident reasonably expecttobeauthoritativeortruthful,suchas which containinformationthataudiencesmight Factual programmesarenon-fiction expect to benews andcurrent affairs. taking into account whataudiences would reasonably programmes oritems willusually bereadily identified, and factual programming. News andcurrent affairs The standard appliesonly to news, current affairs from beingsignificantly misinformed. The purposeofthisstandard isto protect thepublic STANDARD 9–ACCURACY • • • • • • • the platform onwhichtheprogramme whether theaudience could reasonably be whether theprogramme acknowledges the whether theprogramme approaches atopic the nature oftheissue andofthediscussion the typeofprogramme the programme’s introduction andthewayin is broadcast. in othermediasources expected to beaware ofotherviews, including existence ofotherviews from aparticularperspective which theprogramme ispresented Broadcasting Standards inNew ZealandCodebook 18 Commentary 19 / Broadcasting Standards Authority

The audience may be misinformed in two ways: by Expressions of comment, analysis or opinion are exempt incorrect statements of fact within the programme; and/ from the requirement to be accurate. To read more about or by being misled by the programme. this, see the guidance section on accuracy at the back of

Where statements of fact are at issue, the standard is this Codebook. concerned only with material inaccuracy. Technical or Determination of a complaint under the accuracy unimportant points unlikely to significantly affect the standard occurs in two stages. The first step is to audience’s understanding of the programme as a whole consider whether the programme was inaccurate or are not material. misleading. The second step is to consider whether

Being ‘misled’ is defined as being given ‘a wrong idea reasonable efforts were made by the broadcaster to or impression of the facts’ (see High Court judgment ensure that the programme was accurate and did Attorney General of Samoa v TVWorks Ltd, CIV-2011-485- not mislead. This means that a programme may be 1110). Programmes may be misleading by omission, or inaccurate or misleading, but nevertheless may not as a result of the way dialogue and images have been breach the standard, if the broadcaster took reasonable edited together. steps, for example, by relying on a reputable source (see guideline 9e). 20 Commentary PART 3 STANDARDS WHICH RELATE TO PEOPLE OR ORGANISATIONS TAKING PART OR REFERRED TO IN BROADCASTS

Broadcasting Standards in New Zealand Codebook 21 / Broadcasting Standards Authority

STANDARD 10 – PRIVACY More guidance is given at the back of this Codebook, entitled Guidance: Privacy. In our society we value and respect the privacy of the individual. Parliament has identified privacy as STANDARD 11 – FAIRNESS particularly important: it is the only broadcasting standard for which compensation may be awarded, and The purpose of this standard is to protect the dignity and the only one where complaints can be sent directly to reputation of those featured in programmes. the Authority. The standard is concerned with identifiable The objective in assessing fairness is to weigh individuals who feature in programmes or are directly broadcasters’ right to freedom of expression against affected by programmes – not with the general audience. the right of individuals and organisations to be treated As a society, we recognise that certain information about fairly. It is challenging for broadcasters to navigate us is so sensitive that we can reasonably expect to be the line between disseminating information to their able to decide who we share it with. We also recognise audiences which is in the public interest, and the risk that there are times and places where we as individuals of overstepping and causing ‘unfair’ harm to individuals are entitled to be left alone, or are entitled to be able to and organisations. Individuals and organisations have the choose those who are with us or who observe us. These right to expect they will be dealt with justly and fairly and are concepts of solitude and seclusion. protected from unwarranted damage.

On the other hand, there are other times and places Generally, a consideration of what is fair will take into where we have to expect that what we are doing may account the following: be seen, heard or recorded by others. We have, for • whether the audience would have been left example, a right to expect privacy in our bedrooms but with an unduly negative impression of an very limited rights to expect privacy on a public street. individual or organisation Likewise, some information about us is simply not • whether an individual or organisation taking part private, or we may voluntarily surrender some privacy. or referred to in a programme was adequately Sometimes, privacy can be used to shield wrongdoing informed of the nature of their participation and wider exposure is in the public interest. Public • whether informed consent was required and/or interest is defined as being more than something that obtained (guidance on what constitutes ‘informed merely interests the public. It is a matter of concern to, consent’ is found in Guidance: Privacy at the or having the potential to affect, a significant section of back of this Codebook) the New Zealand population. • whether the individual or organisation was given a reasonable opportunity to comment, The privacy standard aims to respect, where reasonable, and whether their comments were adequately people’s wishes not to have themselves or their affairs presented in the programme broadcast to the public. It seeks to protect their dignity, • the nature of the individual, for example, a public autonomy, mental wellbeing and reputation, and their figure or organisation familiar with dealing with ability to develop relationships, opinions and creativity the media, as opposed to an ordinary person with away from the glare of publicity. But it also allows little or no media experience broadcasters to gather, record and broadcast material • whether any critical comments were aimed at where this is in the public interest. the participant in their business or professional Our expectations of privacy vary with time, culture and life, or their personal life technology, which creates some difficult boundaries. • the public significance of the broadcast and its The guidelines given under Standard 10 – Privacy are value in terms of free speech. designed to assist broadcasters to strike the balance. 22

THE The Radio Code RADIO CODE

Broadcasting Standards in New Zealand Codebook 23 / Broadcasting Standards Authority

The following standards apply to all PART 1 Standards which relate to radio programmes broadcast in New social responsibilities Zealand. Freedom of expression is Standard 1 Good Taste and Decency the starting point in a consideration Standard 2 Programme Information of complaints. Complaints can only Standard 3 Children’s Interests be upheld where the limitation on Standard 4 Violence the right to freedom of expression is Standard 5 Law and Order reasonable, prescribed by law and Standard 6 Discrimination and Denigration demonstrably justified in a free and Standard 7 Alcohol democratic society. PART 2 Standards which relate to information broadcast The standards in this code should Standard 8 be read and interpreted alongside Balance the commentary at the front of Standard 9 Accuracy the Codebook. PART 3 Standards which relate to people or organisations taking part or referred to in broadcasts Standard 10 Privacy Standard 11 Fairness 24

PART 1 The Radio Code STANDARDS WHICH RELATE TO SOCIAL RESPONSIBILITIES

Broadcasting Standards in New Zealand Codebook 25 / Broadcasting Standards Authority

STANDARD 1 – GOOD TASTE STANDARD 2 – PROGRAMME AND DECENCY INFORMATION Current norms of good taste and decency Broadcasters should, where reasonably possible, should be maintained, consistent with the issue an audience advisory where the content of a context of the programme and the wider broadcast is outside audience expectations. context of the broadcast. Guideline Guidelines 2a While this standard will rarely apply to radio, 1a The context in which content occurs and the an appropriate audience advisory should be wider context of the broadcast are relevant to broadcast if programme content is likely to assessing whether a broadcast has breached be outside audience expectations of the radio this standard, including: station or of the particular programme. • the nature of the programme and the station STANDARD 3 – CHILDREN’S • the time of broadcast INTERESTS • whether the broadcast was live or pre- recorded Broadcasters should ensure children can be protected from broadcasts which might • the use of audience advisories, if any adversely affect them. • the target and likely audience • audience expectations of the station and the Guidelines programme 3a This standard will only apply during times when • the public interest in the broadcast. children are likely to be listening (usually up until 8.30pm and especially before school and 1b Where broadcasters take effective steps to after school – see Children’s normally accepted inform their audiences of the nature of their listening times under Definitions, page 9). programmes, and enable listeners to regulate their own and their children’s listening 3b Material likely to be considered under this behaviour, they are less likely to breach this standard includes: standard. • sexual material or themes 1c Talkback is an opinionated environment and is • violent content or themes granted some latitude to be provocative and edgy in the interests of robust debate. • offensive language 1d If seriously offensive material from a third party • social or domestic friction is inadvertently broadcast, it is less likely to • dangerous, antisocial or illegal behaviour breach the standard if the host immediately redresses the issue. • material in which children or animals are humiliated or badly treated • graphic descriptions of people in extreme pain or distress

which are outside audience expectations of the station or programme. Guidelines when referencing violence. Broadcasters shouldexercise care anddiscretion STANDARD 4–VIOLENCE 4d 4c 4b 4a 3c In news, current affairs andfactual programmes, Broadcasters shouldexercise caution with Any descriptionof,orreference to, violence This standard willrarely apply to radio (asviolent Context isanimportant consideration when • • public interest. occurs, thematerial shouldbejustified inthe reported to reflect aworld inwhichviolence where disturbing oralarmingmaterial isoften or brutality. content likely to incite orencourage violence should bejustified by context. material hasmore impactvisually). children, suchashumouroreducational benefit. and anyfactors thatmitigate thelikely harmto target andlikely audience, audience expectations including thepublicinterest inthebroadcast, the assessing complaints underthisstandard, when appropriate. An audience advisory should beused when children are likely to belistening. included innews programmes, particularly deciding thedegree ofgraphic detail to be Judgement anddiscretion must beusedin Guidelines and thewidercontext ofthebroadcast. taking into account thecontext oftheprogramme consistent withthemaintenance oflawandorder, Broadcasters shouldobserve standards STANDARD 5–LAW ANDORDER Guidelines culture orpolitical belief. consequence oflegitimate expression ofreligion, race, age,disability,occupational status orasa community onaccount ofsex, sexual orientation, against, ordenigration of,anysectionofthe Broadcasters shouldnotencourage discrimination AND DENIGRATION STANDARD 6–DISCRIMINATION 5b 5a 6a The context oftheprogramme andthewider Programmes shouldnotactively promote serious ‘Discrimination’ isdefinedasencouraging in aprogramme willalsobeasignificant factor. dramatic depictions, andthelevel ofpublicinterest usually bedrawn between factual, andfictionalor this standard. For example, adistinction will considerations whenassessing complaints under context ofthebroadcast are important suicide, seriouscrimeandsubstance abuse. antisocial orillegal behaviour,includingviolence, section ofthecommunity. devaluing thereputationofaparticular their detriment.‘Denigration’isdefinedas a particularsectionofthecommunity,to the differenttreatmentofmembers Broadcasting Standards inNew ZealandCodebook 26 The Radio Code 27 / Broadcasting Standards Authority

6b The importance of freedom of expression means STANDARD 7 – ALCOHOL that a high level of condemnation, often with an element of malice or nastiness, will be necessary In addition to compliance with laws or regulations to conclude that a broadcast encouraged relating to the promotion of alcohol, broadcasters discrimination or denigration in contravention should observe restrictions on the promotion of the standard. of alcohol appropriate to the programme genre 6c This standard is not intended to prevent the being broadcast. broadcast of material that is: • factual Guidelines

• a genuine expression of serious comment, 7a Alcohol promotion should be socially responsible analysis or opinion and must not encourage consumption by people who are under the legal age to purchase alcohol. • legitimate humour, drama or satire. 7b Alcohol promotion must not occur in 6d Context must always be considered when programmes specifically directed at children. assessing whether the broadcast ‘encouraged’ discrimination or denigration, including: 7c Alcohol promotion must not dominate a broadcast. • the nature of the programme and the station 7d Programmes must avoid advocacy of excessive • the time of broadcast alcohol consumption. • whether the broadcast was live or 7e Sponsorship must be confined to the brand, pre-recorded name or logo, and exclude sales messages. • the use of audience advisories, if any 7f Promos for alcohol-sponsored programmes • the target and likely audience must primarily promote the programme, with the sponsorship subordinate. • audience expectations of the station and the programme 7g Broadcasters are not required to exclude alcohol promotion from coverage of an event • the public interest in the broadcast. or situation being broadcast where such promotion is a normal feature of that event or situation. Other guidelines under this standard should be considered. 7h Broadcasters must take into account the requirements of the Advertising Standards Authority’s Code for Advertising and Promotion of Alcohol when scheduling promos for alcohol- sponsored programmes. 28

PART 2 The Radio Code STANDARDS WHICH RELATE TO INFORMATION BROADCAST

Broadcasting Standards in New Zealand Codebook 29 / Broadcasting Standards Authority

STANDARD 8 – BALANCE STANDARD 9 – ACCURACY When controversial issues of public importance Broadcasters should make reasonable are discussed in news, current affairs or efforts to ensure that news, current affairs factual programmes, broadcasters should and factual programming: make reasonable efforts, or give reasonable • is accurate in relation to all material opportunities, to present significant points of points of fact view either in the same programme or in other programmes within the period of current interest. • does not mislead.

Guidelines Guidelines

8a For the standard to apply, the subject matter 9a The requirement for accuracy does not apply to must be an issue ‘of public importance’, it must statements which are clearly distinguishable be ‘controversial’ and it must be ‘discussed’ in a as analysis, comment or opinion, rather than news, current affairs or factual programme. statements of fact. 8b No set formula can be advanced for the allocation 9b The standard is concerned only with material of time to interested parties on controversial inaccuracy. For example, technical or issues of public importance. unimportant points unlikely to significantly affect the audience’s understanding of the programme 8c The assessment of whether a reasonable range of as a whole are not material. other perspectives has been presented includes consideration of the following, where relevant: 9c In the event that a material error of fact has occurred, broadcasters should correct it at the • the programme’s introduction and the earliest appropriate opportunity. way in which the programme was presented, for example: 9d Talkback programmes will not usually be subject to the accuracy standard. o whether the programme purported to be a balanced examination of an issue 9e The assessment of whether the broadcaster has made reasonable efforts to ensure accuracy o whether the programme was clearly includes consideration of the following, where signalled as approaching a topic from relevant: a particular perspective (eg, authorial documentaries, public access and • the source of material broadcast advocacy programmes, partial or (eg, whether the programme is produced politically aligned programmes) by a reputable organisation or relies on an authoritative expert) o whether the programme was narrowly focused on one aspect • whether the broadcast was live or of a larger, complex debate pre-recorded • the nature of the discussion (was it a serious • whether there was some obvious reason examination of an issue, or was the issue to question the accuracy of the programme raised in a brief, humorous or peripheral way) content before it was broadcast • the nature of the issue/whether listeners • whether the broadcaster sought and/or could reasonably be expected to be aware of presented comment, clarification or input views expressed in other coverage, including from any relevant person or organisation coverage in other media (eg, is it an ongoing • the extent to which the issue of accuracy was topic of debate, such that listeners can reasonably capable of being determined by reasonably be expected to have a broad the broadcaster. understanding of the main perspectives on the issue) • the likely expectations of the audience as to content • the level of editorial control of the broadcaster over the programme content. 30

PART 3 The Radio Code STANDARDS WHICH RELATE TO PEOPLE OR ORGANISATIONS TAKING PART OR REFERRED TO IN BROADCASTS

Broadcasting Standards in New Zealand Codebook 31 / Broadcasting Standards Authority

STANDARD 10 – PRIVACY STANDARD 11 – FAIRNESS Broadcasters should maintain standards Broadcasters should deal fairly with any consistent with the privacy of the individual. person or organisation taking part or referred to in any broadcast. Guidelines Guidelines 10a The privacy standard applies only to identifiable individuals. In some cases an individual may be 11a A consideration of what is fair will depend on the identifiable even if they are not named or shown. nature of the programme (eg, news and current 10b Broadcasters should not disclose private affairs, factual, dramatic, comedic or satirical). information or material about an individual Context should also be considered, for example, in a way that is highly offensive to an the public significance of the broadcast. objective reasonable person in the position 11b Participants and contributors should be of the person affected. informed, before a broadcast, of the nature of 10c There must be a reasonable expectation of the programme and their proposed contribution, privacy in relation to the information or material except where justified in the public interest, or disclosed. Factors to consider include, but where their participation is minor in the context are not limited to, whether the information or of the programme. material is not in the public domain; and/or it 11c Whether informed consent was required or has is intimate or sensitive in nature; and/or the been obtained from a participant or a contributor individual could reasonably expect it would not may be a relevant consideration in determining be disclosed. whether that participant or contributor was 10d A person will not usually have a reasonable treated fairly (guidance on what constitutes expectation of privacy in relation to matters in ‘informed consent’ is found in the privacy the public domain. In some circumstances, there guidance at the back of this Codebook). may be a reasonable expectation of privacy in 11d If a person or organisation referred to or relation to such information or material even portrayed in a broadcast might be adversely though it is in the public domain. affected, that person or organisation should 10e Broadcasters should not intentionally intrude usually be given a fair and reasonable upon a person’s reasonable expectation of opportunity to comment for the programme, solitude or seclusion in a way that is highly before the broadcast. What is ‘fair and offensive to an objective reasonable person in the reasonable’ will depend on the circumstances. position of the person affected. 11e Edited excerpts should fairly reflect the tenor 10f It is a defence to a privacy complaint to publicly of the overall events or views expressed. disclose matters of legitimate public interest. 11f Broadcasters must not broadcast information The level of public interest must be proportionate obtained by misrepresentation or deception to the seriousness of the breach of privacy in (including by hidden recording device), except order for the defence to apply. where justified by the public interest. 10g It is not a breach of privacy where the person 11g The use of prank calls as a legitimate expression concerned has given informed consent to the of humour will usually be acceptable, but caution disclosure or intrusion. A parent or guardian, should be exercised to prevent undue harm to or other person aged 18 or over in loco parentis unsuspecting parties. (standing in the shoes of the parent or guardian), can consent on behalf of a child under the age of 11h Individuals, and particularly children and young 16 years, but the broadcaster must be satisfied people, featured in a programme should not be that the broadcast is not contrary to the best exploited, humiliated or unfairly identified. interests of the child. 11i Where programmes deal with distressing circumstances (eg, grief and bereavement) broadcasters should show discretion and sensitivity. THE FREE-TO-AIR 32

TELEVISION The Free-to-Air Code Television CODE

Broadcasting Standards in New Zealand Codebook 33 / Broadcasting Standards Authority

The following standards apply to all PART 1 Standards which relate to free-to-air television programmes social responsibilities broadcast in New Zealand. Standard 1 Good Taste and Decency Freedom of expression is the Standard 2 Programme Information starting point in a consideration of Standard 3 Children’s Interests complaints. Complaints can only be Standard 4 Violence upheld where the limitation on the Standard 5 Law and Order right to freedom of expression is Standard 6 Discrimination and Denigration reasonable, prescribed by law and Standard 7 Alcohol demonstrably justified in a free PART 2 Standards which relate to and democratic society. information broadcast Standard 8 The standards in this code should Balance be read and interpreted alongside Standard 9 Accuracy the commentary at the front of PART 3 Standards which relate to people or the Codebook. organisations taking part or referred to in broadcasts Standard 10 Privacy Standard 11 Fairness PART 1 34 STANDARDS WHICH

RELATE TO SOCIAL The Free-to-Air Code Television RESPONSIBILITIES

Broadcasting Standards in New Zealand Codebook 35 / Broadcasting Standards Authority

STANDARD 1 – GOOD TASTE AND Guidelines DECENCY 2a The following classifications should be broadcast on all content except news, Current norms of good taste and decency should current affairs, sports and live content: be maintained, consistent with the context of the programme and the wider context of the broadcast. G – General Programmes which exclude material likely to be Guidelines unsuitable for children. Programmes may not necessarily be designed for child viewers but 1a The context in which content occurs and the should not contain material likely to alarm or wider context of the broadcast are relevant to distress them. assessing whether a broadcast has breached this G programmes may be screened at any time. standard, including: PGR – Parental Guidance Recommended • the nature of the programme and the channel Programmes containing material more suited for • the programme’s classification and scheduling mature audiences but not necessarily unsuitable • whether the broadcast was live or pre-recorded for child viewers when subject to the guidance of a parent or an adult. • the use of audience advisories, if any PGR programmes may be screened between 9am • the target and likely audience and 4pm, and after 7pm until 6am. • audience expectations of the channel and AO – Adults Only the programme Programmes containing adult themes and • the availability of filtering technology directed primarily at mature audiences. AO programmes may be screened between midday • the level of the broadcaster’s editorial and 3pm on weekdays (except during school and control over the content public holidays, as designated by the Ministry of • the public interest in the broadcast. Education) and after 8.30pm until 5am.

1b Where broadcasters take effective steps to 2b Broadcasters should exercise caution when inform their audiences of the nature of their determining the level of AO content to be programmes, and enable viewers to regulate screened during any transition from G or PGR their own and their children’s viewing behaviour, programming to AO programming, and give they are less likely to breach this standard. careful consideration to children’s interests (Standard 3). 1c If content is likely to offend or disturb a significant section of the audience, an 2c News, current affairs, sports and live content appropriate audience advisory should be is not, because of its distinct nature, subject broadcast prior to the content. to classification. However, broadcasters must be mindful of children’s interests and other broadcasting standards and include warnings STANDARD 2 – PROGRAMME where appropriate. INFORMATION 2d If a programme is likely to disturb or offend a Broadcasters should ensure that programmes are significant number of viewers, or programme correctly classified and screened in appropriate content is likely to be outside audience expectations, an appropriate audience advisory timebands, and where appropriate, issue should be broadcast. an audience advisory where the content of a broadcast may not be suitable for likely viewers. 2e Promos for programmes should comply with the classification of the programme during which they screen. In the case of unclassified host programmes (including news and current affairs) broadcast in G or PGR time, promos must be classified G or PGR and broadcasters should consider children’s interests (Standard 3). Guidelines adversely affect them. be protected from broadcasts whichmight Broadcasters shouldensure children can INTERESTS STANDARD 3–CHILDREN’S 3d 3c 3b

3a In news, current affairs andfactual programmes, When programmes broadcast duringchildren’s Context isanimportant consideration when which are outsidetheexpectations ofthe Material likely to beconsidered underthis children are likely to beviewing. advisory whenappropriate, particularly when programmes, andshouldbroadcast anaudience degree ofgraphic material to beincludedinnews use judgementanddiscretion when decidingthe justified inthepublicinterest. Broadcasters must disturbing oralarmingmaterial shouldbe may disturb oralarmchildren. to thecontent, while avoiding detail whichitself informed choice abouttheirchildren’s exposure nature to allow parents orguardians to make an broadcast. Theadvisoryshould be specificin children, anaudience advisoryshouldbe audience expectations andlikely to disturb page 9)contain material whichisoutside normally accepted viewing times(seeDefinitions, educational benefit. the likely harmto children, suchashumouror the broadcast andanyfactors thatmitigate audience expectations, thepublicinterest in time ofbroadcast, thetarget andlikely audience, including theprogramme’s classification, the assessing complaints underthisstandard, programme’s classification. • • • • • • • standard includes: or distress graphic descriptions ofpeople inextreme pain humiliated orbadly treated material inwhich children oranimalsare dangerous, antisocialorillegal behaviour social ordomestic friction offensive language violent content orthemes sexual material orthemes Guidelines and classified carefully. be appropriate to thecontext oftheprogramme, when portraying violence. Violent content should Broadcasters shouldexercise care anddiscretion STANDARD 4–VIOLENCE Guidelines and thewidercontext ofthebroadcast. taking into account thecontext oftheprogramme consistent withthemaintenance oflawandorder, Broadcasters shouldobserve standards STANDARD 5–LAW ANDORDER 4f 4e 4d 4c 4b 4a 5a Content should notincludeanycombination of Programmes inwhichrape orsexual violence In news, current affairs andfactual programmes, Broadcasters shouldexercise caution with Broadcasters shouldbemindfulofthe Any depictionof,orreference to, violence should Programmes shouldnotactively promote serious current socially acceptable community norms. violence andsex designedto titillate, beyond the content islikely to disturb. broadcasters shoulduseanaudience advisoryif feature shouldbetreated with care, and • • public interest. occurs, thematerial shouldbejustified inthe shown to reflect aworld inwhichviolence where disturbing oralarmingmaterial isoften or brutality. content likely to incite orencourage violence programme line-ups. and themes,withinprogrammes, andacross cumulative effect ofviolence orviolent incidents be justified bycontext. suicide, seriouscrimeandthe abuseofdrugs. antisocial orillegal behaviour,includingviolence, when appropriate. An audience advisoryshouldbeused when children are likely to bewatching. included innews programmes, particularly deciding thedegree ofgraphic detail to be Judgement anddiscretion must beusedin Broadcasting Standards inNew ZealandCodebook

The Free-to-Air 36 Television Code 37 / Broadcasting Standards Authority

5b The context of the programme and the wider • the use of audience advisories, if any context of the broadcast are important • the target and likely audience considerations when assessing complaints under this standard. For example, a distinction • audience expectations of the channel and will usually be drawn between factual, and the programme fictional or dramatic depictions, and the level • the level of the broadcaster’s editorial control of public interest in a programme will also be over the content a significant factor. • the public interest in the broadcast. STANDARD 6 – DISCRIMINATION AND DENIGRATION STANDARD 7 – ALCOHOL Broadcasters should not encourage discrimination In addition to compliance with laws or regulations against, or denigration of, any section of the relating to the promotion of alcohol, broadcasters community on account of sex, sexual orientation, should observe restrictions on the promotion race, age, disability, occupational status or as a of alcohol appropriate to the programme genre consequence of legitimate expression of religion, being broadcast. culture or political belief. Guidelines

Guidelines 7a Alcohol promotion should be socially responsible and must not encourage consumption by people 6a ‘Discrimination’ is defined as encouraging who are under the legal age to purchase alcohol. the different treatment of the members of a particular section of the community, to 7b Alcohol promotion must not occur in programmes their detriment. ‘Denigration’ is defined as specifically directed at children. devaluing the reputation of a particular section 7c Alcohol promotion must not dominate a broadcast. of the community. 7d Programmes must avoid advocacy of excessive 6b The importance of freedom of expression means alcohol consumption. that a high level of condemnation, often with an element of malice or nastiness, will be necessary 7e Sponsorship must be confined to the brand, name to conclude that a broadcast encouraged or logo, and exclude sales messages. discrimination or denigration in contravention 7f Promos for alcohol-sponsored programmes of the standard. must primarily promote the programme, with the 6c This standard is not intended to prevent the sponsorship subordinate. broadcast of material that is: 7g Broadcasters are not required to exclude alcohol • factual promotion from coverage of an event or situation being broadcast where such promotion is a normal • a genuine expression of serious comment, feature of that event or situation. Other guidelines analysis or opinion under this standard should be considered. • legitimate humour, drama or satire. 7h Broadcasters must take into account the 6d Context must always be considered when requirements of the Advertising Standards assessing whether the broadcast ‘encouraged’ Authority’s Code for Advertising and Promotion discrimination or denigration, including: of Alcohol when scheduling promos for alcohol- sponsored programmes. • the nature of the programme and the channel • the programme’s classification and scheduling • whether the broadcast was live or pre-recorded PART 2 38 STANDARDS

WHICH RELATE The Free-to-Air Code Television TO INFORMATION BROADCAST

Broadcasting Standards in New Zealand Codebook 39 / Broadcasting Standards Authority

STANDARD 8 – BALANCE • the likely expectations of the audience as to content When controversial issues of public importance • the level of editorial control of the broadcaster are discussed in news, current affairs or over the programme content. factual programmes, broadcasters should make reasonable efforts, or give reasonable STANDARD 9 – ACCURACY opportunities, to present significant points of view either in the same programme or in other Broadcasters should make reasonable efforts programmes within the period of current interest. to ensure that news, current affairs and factual programming: Guidelines • is accurate in relation to all material 8a For the standard to apply, the subject matter points of fact must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a • does not mislead. news, current affairs or factual programme. Guidelines 8b No set formula can be advanced for the allocation of time to interested parties on controversial 9a The requirement for accuracy does not apply to issues of public importance. statements which are clearly distinguishable as analysis, comment or opinion, rather than 8c The assessment of whether a reasonable range statements of fact. of other perspectives has been presented includes consideration of the following, 9b The standard is concerned only with material where relevant: inaccuracy. For example, technical or unimportant points unlikely to significantly affect • the programme’s introduction and the the audience’s understanding of the programme way in which the programme was presented, as a whole are not material. for example: 9c In the event that a material error of fact has o whether the programme purported to occurred, broadcasters should correct it at the be a balanced examination of an issue earliest appropriate opportunity. o whether the programme was clearly 9d The assessment of whether the broadcaster signalled as approaching a topic from has made reasonable efforts to ensure accuracy a particular perspective (eg, authorial includes consideration of the following, where documentaries, public access and relevant: advocacy programmes, partial or politically aligned programmes) • the source of material broadcast (eg, whether the programme is produced o whether the programme was by a reputable organisation or relies on narrowly focused on one aspect an authoritative expert) of a larger, complex debate • whether the broadcast was live or • the nature of the discussion (was it a serious pre-recorded examination of an issue, or was the issue raised in a brief, humorous or peripheral way) • whether there was some obvious reason to question the accuracy of the programme • the nature of the issue/whether viewers content before it was broadcast could reasonably be expected to be aware of views expressed in other coverage, • whether the broadcaster sought and/or including coverage in other media (eg, is it presented comment, clarification or input an ongoing topic of debate, such that viewers from any relevant person or organisation can reasonably be expected to have a broad • the extent to which the issue of accuracy was understanding of the main perspectives on reasonably capable of being determined by the issue) the broadcaster. PART 3 40 STANDARDS WHICH

RELATE TO PEOPLE The Free-to-Air Code Television OR ORGANISATIONS TAKING PART OR REFERRED TO IN BROADCASTS

Broadcasting Standards in New Zealand Codebook 41 / Broadcasting Standards Authority

STANDARD 10 – PRIVACY STANDARD 11 – FAIRNESS Broadcasters should maintain standards Broadcasters should deal fairly with any consistent with the privacy of the individual. person or organisation taking part or referred to in any broadcast. Guidelines Guidelines 10a The privacy standard applies only to identifiable individuals. In some cases an individual may be 11a A consideration of what is fair will depend on the identifiable even if they are not named or shown. nature of the programme (eg, news and current 10b Broadcasters should not disclose private affairs, factual, dramatic, comedic or satirical). information or material about an individual Context should also be considered, including the in a way that is highly offensive to an objective public interest in the broadcast. reasonable person in the position of the 11b Participants and contributors should be person affected. informed, before a broadcast, of the nature of 10c There must be a reasonable expectation of the programme and their proposed contribution, privacy in relation to the information or material except where justified in the public interest, or disclosed. Factors to consider include, but where their participation is minor in the context are not limited to, whether the information or of the programme. material is not in the public domain; and/or it 11c Whether informed consent was required or has is intimate or sensitive in nature; and/or the been obtained from a participant or a contributor individual could reasonably expect it would not may be a relevant consideration in determining be disclosed. whether that participant or contributor was 10d A person will not usually have a reasonable treated fairly (guidance on what constitutes expectation of privacy in relation to matters in ‘informed consent’ is found in the privacy the public domain. In some circumstances, there guidance at the back of this Codebook). may be a reasonable expectation of privacy in 11d If a person or organisation referred to or relation to such information or material even portrayed in a broadcast might be adversely though it is in the public domain. affected, that person or organisation should 10e Broadcasters should not intentionally intrude usually be given a fair and reasonable upon a person’s reasonable expectation of opportunity to comment for the programme, solitude or seclusion in a way that is highly before a broadcast. What is ‘fair and reasonable’ offensive to an objective reasonable person in the will depend on the circumstances. position of the person affected. 11e Doorstepping an individual or organisation 10f It is a defence to a privacy complaint to publicly as a means of obtaining comment will disclose matters of legitimate public interest. normally be unfair, unless all legitimate and The level of public interest must be proportionate reasonable methods of obtaining comment to the seriousness of the breach of privacy in have been exhausted. order for the defence to apply. 11f Edited excerpts should fairly reflect the tenor 10g It is not a breach of privacy where the person of the overall events or views expressed. concerned has given informed consent to the 11g Broadcasters must not broadcast information disclosure or intrusion. A parent or guardian, obtained by misrepresentation or deception or other person aged 18 or over in loco parentis (including by hidden camera or covert (standing in the shoes of the parent or guardian), recording device), except where justified can consent on behalf of a child under the age of by the public interest. 16 years, but the broadcaster must be satisfied that the broadcast is not contrary to the best 11h Individuals, and particularly children and young interests of the child. people, featured in a programme should not be exploited, humiliated or unfairly identified. 11i Where programmes deal with distressing circumstances (eg, grief and bereavement) broadcasters should show discretion and sensitivity. THE PAY TELEVISION

CODE 42 The Pay Television Code Television The Pay

Broadcasting Standards in New Zealand Codebook 43 / Broadcasting Standards Authority

The following standards apply to all Additionally, pay television broadcasters may offer channels pay television programmes broadcast over which they have no (or little) editorial control (for example, foreign pass-through channels). This limited control of the in New Zealand. ‘Pay’ means broadcaster will be an important consideration when assessing television that is for a fee (ie, viewers whether a programme has breached standards. must pay to view the broadcast The standards in this code should be read and interpreted signal), whether on a subscription or alongside the commentary at the front of the Codebook. other transaction basis. PART 1 Standards which relate to social responsibilities Pay television overall enjoys a less restrictive Standard 1 environment than free-to-air television because of the Good Taste and Decency choice customers make in paying to receive broadcasts. Standard 2 Programme Information The freedom and capacity of an audience to choose Standard 3 Children’s Interests what it views and to be able to prevent children and Standard 4 young people from viewing inappropriate material are Violence significant factors in determining what is, and what is Standard 5 Law and Order not, acceptable. Violent and potentially offensive material Standard 6 Discrimination and Denigration is readily accessible in our society and it follows that Standard 7 some material of this kind will be able to be accessed on Alcohol television. However, there must be strong protections in PART 2 Standards which relate to place to prevent this material being viewed by children information broadcast and young people, and strong protections to ensure that it is not inadvertently viewed by those who do Standard 8 Balance not wish to do so. Pay television broadcasters provide Standard 9 Accuracy these protections through appropriate classifications and warnings, filtering technology, PIN codes and an PART 3 Standards which relate to people or electronic programme guide. organisations taking part or referred to in broadcasts Standard 10 Privacy Standard 11 Fairness PART 1 STANDARDS WHICH RELATE TO SOCIAL

RESPONSIBILITIES 44 The Pay Television Code Television The Pay

Broadcasting Standards in New Zealand Codebook 45 / Broadcasting Standards Authority

STANDARD 1 – GOOD TASTE STANDARD 2 – PROGRAMME AND DECENCY INFORMATION Current norms of good taste and decency should Viewers should be informed by regular and be maintained, consistent with the context of the consistent advice about programme content programme and the wider context of the broadcast. (including classifications and warnings) and, where available, filtering technology. Guidelines Broadcasters should ensure that programmes are 1a The context in which content occurs and the correctly classified and, if filtering technology is wider context of the broadcast are important not available, appropriately scheduled. when assessing whether a broadcast has breached this standard, including: Guidelines

• the nature of the programme and the channel 2a These classifications should be broadcast on all • the programme’s classification content except news, current affairs, sports and live content: • where filtering technology is not available, the programme’s scheduling G – approved for general viewing • whether the broadcast was live or pre-recorded PG – parental guidance recommended for younger viewers • the use of audience advisories, if any M – suitable for mature audiences • the target and likely audience 16 years and over • audience expectations of the channel and 16 – people under 16 years should not view the programme 18 – people under 18 years should not view • the availability of filtering technology 2b Classifications should screen at the beginning • the level of the broadcaster’s editorial of programmes, be included in electronic control over the content programme guides, and accompany printed • the public interest in the broadcast. guides where possible. 2c News, current affairs, sports and live content 1b Where broadcasters take effective steps to is not, because of its distinct nature, subject inform their audiences of the nature of their to classification. However, broadcasters must programmes, and enable viewers to regulate be mindful of children’s interests and other their own and their children’s viewing behaviour, broadcasting standards and include advisories they are less likely to breach this standard. where appropriate. 1c If content is likely to offend or disturb a 2d Audience advisories should be broadcast significant number of viewers because it is immediately prior to content which is likely to outside the expectations of the target audience, disturb, distress or offend a significant number an effective audience advisory should be of viewers. Audience advisories include: broadcast prior to the content. C – content may offend 1d Where effective filtering technology is available to the audience, complaints under this standard are L – language may offend less likely to be upheld. V – contains violence 1e Explicit adult sex programmes classified 18 may S – sexual content may offend screen only on premium channels. 2e Audience advisories should also be included 3b Material likely to be considered under this in electronic programming guides and printed standard includes: guides where possible. • sexual material or themes 2f Audience advisories are not required for content • violent content or themes on foreign pass-through channels with no (or little) local editorial intervention. • offensive language 2g Promos for programmes should comply with the • social or domestic friction classification of the programme during which • dangerous, antisocial or illegal behaviour they screen. • material in which children or animals are 2h If filtering technology is made available to humiliated or badly treated customers free of charge, and regularly promoted by the broadcaster for customer use, • graphic descriptions of people in extreme content classified 18 may screen at any time, pain or distress provided other applicable broadcasting standards which are outside the expectations of the are adhered to. programme’s classification. 2i Where filtering technology is not made available, 3c Context must always be considered, including content classified 18 may screen only between whether filtering technology is available so 8pm and 6am, or 9am and 3pm (other than that parents can protect children from viewing weekend days, school holidays and public unsuitable content, the nature of the programme holidays when it may screen only between and the channel, and the public significance of 8.30pm and 5am). the broadcast. 2j The filtering technology may be made available 3d Channels targeted at children should only contain on the basis that customers elect to use it, content appropriate for children. provided that a customer is easily able to initiate use at any time through the television remote or 3e Content not intended for children’s viewing similar device. should not be specifically promoted to children 46 and should be screened in accordance with 2k Content classified 18 may screen at any time on Standard 2 – Programme Information. premium channels, provided other applicable broadcasting standards are adhered to. 3f Content classified M or above, especially that containing sexual or violent material, should not STANDARD 3 – CHILDREN’S screen adjacent to content aimed at children. INTERESTS 3g Themes and scenes in fictional content dealing with matters known to disturb children, such The Pay Television Code Television The Pay Broadcasters should ensure children as domestic friction or the humiliation or ill- can be protected from broadcasts which treatment of children, should be appropriately might adversely affect them. classified and scheduled. 3h Any portrayal of realistic violence in content likely Guidelines to be viewed by children should be scheduled and classified with care. 3a On pay television, children are frequently protected through security systems, eg, filtering technology. Where these are available, they should be clearly and regularly promoted to customers.

Broadcasting Standards in New Zealand Codebook 47 / Broadcasting Standards Authority

STANDARD 4 – VIOLENCE STANDARD 5 – LAW AND ORDER Broadcasters should exercise care and discretion Broadcasters should observe standards when portraying violence. Violent content should consistent with the maintenance of law and order, be appropriate to the context of the programme, taking into account the context of the programme and classified carefully. and the wider context of the broadcast.

Guidelines Guidelines

4a The level of editorial control of the broadcaster 5a Programmes should not actively promote serious over programme content will be an important antisocial or illegal behaviour, including violence, consideration when assessing complaints suicide, serious crime and the abuse of drugs. under this standard. For example, broadcasters 5b The context of the programme and the wider exercise no (or little) editorial control over content context of the broadcast are important screened on foreign pass-through channels. considerations when assessing complaints under 4b Broadcasters should exercise caution with this standard. For example, a distinction will content likely to incite or encourage violence. It usually be drawn between factual, and fictional should be classified carefully and carry audience or dramatic depictions. The availability of filtering advisories where necessary, in accordance with technology and the level of public interest in a Standard 2 – Programme Information. programme will be significant factors. 4c In news, current affairs and factual programmes, disturbing or alarming material should be STANDARD 6 – DISCRIMINATION justified in the public interest and carry audience AND DENIGRATION advisories where appropriate. Broadcasters should not encourage discrimination 4d Broadcasters must use judgement and discretion when deciding the degree of graphic material against, or denigration of, any section of the to be included in news programmes, and community on account of sex, sexual orientation, should broadcast an audience advisory when race, age, disability, occupational status or as a appropriate, particularly when children are likely consequence of legitimate expression of religion, to be viewing. culture or political belief. 4e Programmes in which rape or sexual violence feature should be treated with care, and Guidelines broadcasters should use an audience advisory if 6a ‘Discrimination’ is defined as encouraging the content is likely to disturb. the different treatment of the members of 4f Content should not include any combination of a particular section of the community, to violence and sex designed to titillate, beyond their detriment. ‘Denigration’ is defined current socially acceptable community norms. as devaluing the reputation of a particular section of the community. 6b The importance of freedom of expression means STANDARD 7 – ALCOHOL that a high level of condemnation, often with an element of malice or nastiness, will be necessary In addition to compliance with laws or regulations to conclude that a broadcast encouraged relating to the promotion of alcohol, broadcasters discrimination or denigration in contravention should observe restrictions on the promotion of the standard. of alcohol appropriate to the programme genre 6c This standard is not intended to prevent the being broadcast. broadcast of material that is: • factual Guidelines

• a genuine expression of serious comment, 7a Alcohol promotion should be socially responsible analysis or opinion and must not encourage consumption by people who are under the legal age to purchase alcohol. • legitimate humour, drama or satire. 7b Alcohol promotion must not occur in 6d Context must always be considered when programmes specifically directed at children. assessing whether the broadcast ‘encouraged’ discrimination or denigration. Relevant factors 7c Alcohol promotion must not dominate include: a broadcast. • the nature of the programme and the channel 7d In the preparation and presentation of programmes, broadcasters must avoid • the programme’s classification advocacy of excessive alcohol consumption. • where filtering technology is not available, 7e Sponsorship must be confined to the brand, the programme’s scheduling name or logo, and exclude sales messages. • whether the broadcast was live or 7f Promos for alcohol-sponsored programmes pre-recorded must primarily promote the programme, with • the use of audience advisories, if any the sponsorship subordinate. 48 • the target and likely audience 7g Broadcasters are not required to exclude alcohol promotion from coverage of an actual event or • audience expectations of the channel and situation being broadcast where promotion is a the programme normal feature of the event or situation. Other • the availability of filtering technology guidelines under this standard should be considered. • the level of the broadcaster’s editorial control over the content 7h Broadcasters must take into account the

requirements of the Advertising Standards Code Television The Pay • the public interest in the broadcast. Authority’s Code for Advertising and Promotion of Alcohol when scheduling promos for alcohol- sponsored programmes.

Broadcasting Standards in New Zealand Codebook 49 / Broadcasting Standards Authority

PART 2 STANDARDS WHICH RELATE TO INFORMATION BROADCAST STANDARD 8 – BALANCE • the likely expectations of the audience as to content When controversial issues of public importance • the level of editorial control of the broadcaster are discussed in news, current affairs or over the programme content (eg, in foreign factual programmes, broadcasters should pass-through channels). make reasonable efforts, or give reasonable opportunities, to present significant points of STANDARD 9 – ACCURACY view either in the same programme or in other programmes within the period of current interest. Broadcasters should make reasonable efforts to ensure that news, current affairs and factual Guidelines programming:

8a For the standard to apply, the subject matter • is accurate in relation to all material must be an issue ‘of public importance’, it must points of fact be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme. • does not mislead. 8b No set formula can be advanced for the allocation Guidelines of time to interested parties on controversial issues of public importance. 9a This standard does not apply to news, current affairs and factual programmes broadcast on 8c News, current affairs and factual programmes foreign pass-through channels, over which the broadcast on foreign pass-through channels, broadcaster retains little or no editorial control. over which the broadcaster retains no (or little) editorial control, are not required to be balanced 9b The requirement for accuracy does not apply to by the broadcaster. statements which are clearly distinguishable as analysis, comment or opinion, rather than 8d The assessment of whether a reasonable range of statements of fact. other perspectives has been presented includes consideration of the following, where relevant: 9c The standard is concerned only with material inaccuracy. For example, technical or unimportant • the programme’s introduction and the way points unlikely to significantly affect the in which the programme was presented, audience’s understanding of the programme for example: as a whole are not material. o whether the programme purported to be 9d In the event that a material error of fact has a balanced examination of an issue 50 occurred, broadcasters should correct it at the o whether the programme was clearly earliest appropriate opportunity. signalled as approaching a topic from 9e The assessment of whether the broadcaster a particular perspective (eg, authorial has made reasonable efforts to ensure accuracy documentaries, public access and includes consideration of the following, where advocacy programmes, partial or relevant: politically aligned programmes) • the source of material broadcast (eg, whether o whether the programme was narrowly Code Television The Pay the programme is produced by a reputable focused on one aspect of a larger, complex organisation or relies on an authoritative expert) debate • whether the broadcast was live or pre-recorded • the nature of the discussion (was it a serious examination of an issue, or was the issue • whether there was some obvious reason to raised in a brief, humorous or peripheral way) question the accuracy of the programme content before it was broadcast • the nature of the issue/whether viewers could reasonably be expected to be aware of views • whether the broadcaster sought and/or expressed in other coverage, including coverage presented comment, clarification or input in other media (eg, is it an ongoing topic of from any relevant person or organisation debate, such that viewers can reasonably be • the extent to which the issue of accuracy was expected to have a broad understanding of the reasonably capable of being determined by main perspectives on the issue) the broadcaster. Broadcasting Standards in New Zealand Codebook 51 / Broadcasting Standards Authority

PART 3 STANDARDS WHICH RELATE TO PEOPLE OR ORGANISATIONS TAKING PART OR REFERRED TO IN BROADCASTS STANDARD 10 – PRIVACY Guidelines Broadcasters should maintain standards 11a This standard will usually only apply where consistent with the privacy of the individual. broadcasts have been locally produced by or on behalf of the broadcaster. Guidelines 11b A consideration of what is fair will depend on:

10a The privacy standard applies only to identifiable • the nature of the programme (eg, news and individuals. In some cases an individual may be current affairs, factual, dramatic, comedic identifiable even if they are not named or shown. or satirical) 10b Broadcasters should not disclose private • the public interest in the broadcast information or material about an individual in • the target and likely audience a way that is highly offensive to an objective reasonable person in the position of the person • audience expectations affected. • whether the programme was live or 10c There must be a reasonable expectation of pre-recorded. privacy in relation to the information or material 11c Participants and contributors should be disclosed. Factors to consider include, but are not informed, before a broadcast, of the nature of limited to, whether the information or material the programme and their proposed contribution, is not in the public domain; and/or it is intimate except where justified in the public interest, or or sensitive in nature; and/or the individual could where their participation is minor in the context reasonably expect it would not be disclosed. of the programme. 10d A person will not usually have a reasonable 11d Whether informed consent was required or has expectation of privacy in relation to matters in been obtained from a participant or a contributor the public domain. In some circumstances, there may be a relevant consideration in determining may be a reasonable expectation of privacy in whether that participant or contributor was treated relation to such information or material even fairly (guidance on what constitutes ‘informed though it is in the public domain. consent’ is found in the privacy guidance at the 10e Broadcasters should not intentionally intrude back of this Codebook). upon a person’s reasonable expectation of 11e If a person or organisation referred to or portrayed solitude or seclusion in a way that is highly in a broadcast might be adversely affected, that offensive to an objective reasonable person in the person or organisation should usually be given a position of the person affected. 52 fair and reasonable opportunity to comment for the 10f It is a defence to a privacy complaint to publicly programme, before a broadcast. What is ‘fair and disclose matters of legitimate public interest. The reasonable’ will depend on the circumstances. level of public interest must be proportionate to 11f Doorstepping an individual or organisation the seriousness of the breach of privacy in order as a means of obtaining comment will normally be for the defence to apply. unfair, unless all legitimate and reasonable methods 10g It is not a breach of privacy where the person of obtaining comment have been exhausted.

concerned has given informed consent to the Code Television The Pay 11g Edited excerpts should fairly reflect the tenor of the disclosure or intrusion. A parent or guardian, overall events or views expressed. or other person aged 18 or over in loco parentis (standing in the shoes of the parent or guardian), 11h Broadcasters must not broadcast information can consent on behalf of a child under the age of obtained by misrepresentation or deception 16 years, but the broadcaster must be satisfied (including by hidden camera or covert recording that the broadcast is not contrary to the best device), except where justified by the public interest. interests of the child. 11i Individuals, and particularly children and young people, featured in a programme should not be STANDARD 11 – FAIRNESS exploited, humiliated or unfairly identified. Broadcasters should deal fairly with any 11j Where programmes deal with distressing person or organisation taking part or referred circumstances (eg, grief and bereavement) to in any broadcast. broadcasters should show discretion and sensitivity.

Broadcasting Standards in New Zealand Codebook 53 / Broadcasting Standards Authority

COMPLAINTS PROCESS AND OTHER GUIDANCE BSA decisionto the you were notifiedof You mayappealthe You are nothappy High Courtwithin with thedecision one monthafter directly to BSAbysendingyour Privacy breached andissues awritten decision Complaint within20working daysof the decision BSA decideswhetherprivacy was You have theoptionto complain phoning orwritingto theTVorradio station STEP BY COMPLAINTS PROCESS the programme beingaired You can make an‘informal complaint’ by DO YOU WANT TO MAKEAFORMAL COMPLAINT? No furtheraction with thedecision You are happy NO PRIVACY ONLY BREACHED required Broadcaster fails to BSA decisionto the you were notifiedof You may appealthe send you a written send you a You are nothappy High Courtwithin with thedecision days ifextension 20 working days one monthafter decision within breached and issues awritten decision (or 40working BSA decideswhetherstandards were the decision Complain to thebroadcaster first by requested) sending your Formal Complaintto Broadcaster willmake adecision on your complaint You are nothappy Refer your formal complaint to BSA with thedecision the broadcaster for review Read therelevant CodeofBroadcasting Practice to see which standard(s) you thinkthebroadcaster breached Broadcaster sends No furtheraction with thedecision days ifextension 20 working days decision within (or 40working You are happy you awritten requested) required You are happywith action required STANDARDS OTHER THANPRIVACY BREACHED the decision No further YES Broadcasting Standards inNew ZealandCodebook Broadcaster fails to Broadcaster failsto BSA decisionto the You may appealthe send you a written send youawritten You are nothappy High Courtwithin with thedecision days if extension days ifextension you were notified 20 working days 20 workingdays one monthafter decision within decision within broadcaster within20working daysof breached and issues awritten decision (or 40 working (or 40working of thedecision BSA decideswhetherstandards were requested) Send your Formal Complaintto the programme beingaired decision onyour complaint Broadcaster willmake a You are nothappy Refer your formal complaint to BSA with thedecision for review You are happywith Broadcaster sends No furtheraction 20 working days days if extension days ifextension decision within (or 40 working (or 40working you awritten the decision requested) required No furtheraction with thedecision You are happy required

Complaints Process 54 and Other Guidance 55 / Broadcasting Standards Authority GUIDE TO THE BSA COMPLAINTS PROCESS FOR TELEVISION AND RADIO PROGRAMMES

What type of programme can I complain about? You can complain about any programme broadcast in New Zealand on television or radio.

When can I complain? You need to make your complaint within 20 working days of the broadcast. You cannot complain about a show before it has aired.

What will the BSA accept complaints about?

Free-to-air TV programmes Advertising (contact the Advertising Standards Authority) Pay TV programmes Programme scheduling (contact the broadcaster) Radio programmes Broadcaster websites (contact the broadcaster) Programmes viewed or listened to on demand (ONLY if you can supply details of original TV or Programmes viewed or listened to on demand – radio broadcast and lodge your complaint within if you cannot supply details of original TV or radio 20 working days of that broadcast) broadcast (contact the broadcaster)

Election advertisements on television or radio News and current affairs on broadcasters’ (during election periods) websites, which has not been on TV or radio (contact the Online Media Standards Authority)

Other internet content (contact provider)

What issues can I complain about? You can complain about the following issues:

• good taste and decency • alcohol • programme information • balance • children’s interests • accuracy • violence • privacy • law and order • fairness • discrimination and denigration if itlets you know withintheinitial20working days.) BSA ifyou are notsatisfiedwithitsdecision.(Thebroadcaster isallowed to extend thetimeframe to 40working days, upheld (ie,whethertheprogramme didbreach standards), andadvising you ofyour rightto refer your complaint to the A broadcaster has20working daysto sendyou awritten decisiontelling you whetherornotyour complaint hasbeen What happensto formal complaints to broadcasters? To make aformal complaint certain requirements must bemet.Aformal complaint must: What isneededfor mycomplaint to bea‘formal complaint’? number ofmonthsafter the originaldate ofthebroadcast thatyou getafinaldecision. resolution. Ifyou complain to thebroadcaster andthenyou goonto refer your complaint to theBSA,itcould bea Please note thattheformal complaint process can take sometime.Itisunlikely you willgetaninstant answer or broadcaster you’re looking for ). online form thatyou can useifthebroadcaster you are complaining aboutdoesn’thave cannot one(see,Ifyou findthe can beaccessed viaourwebsite are (see,Ifyou ready to make acomplaint to thebroadcaster now). TheBSAalsohasan The simplest wayto make acomplaint isto complete anonlineform. Most ofthemajorbroadcasters have them.They website, www.bsa.govt.nz. complaints whichcan besentstraight to theBSA).Contact details for majorbroadcasters can befound ontheBSA’s Formal complaints have to goto thebroadcaster first (unless they are privacy complaints orelection programme considered an‘informal complaint’. If you just wantto let thebroadcaster know your concerns, oritisnotanissue thatcan come to theBSA,itwillbe To beable to gothrough theBSAprocess, complaints have to be‘formal complaints’. How doIcomplain? broadcast (radio, free-to-air television, paytelevision). There isaseparate code for election programmes. The standards andguidelinescontained ineachcode are slightly different according to where theprogramme was These issues are explained indetail intheCodesofBroadcasting Practice withinthisCodebookandonourwebsite. • • • • include thefollowing details: be received bythebroadcaster within20working daysofthebroadcast specify itisa‘formal complaint’ be inwriting o o o o o o an explanation ofwhyyou thinkthestandards have beenbreached. the standards you thinkhave beenbreached channel orstation whichbroadcast theprogramme title oftheprogramme time ofthebroadcast date ofthebroadcast Broadcasting Standards inNew ZealandCodebook

Complaints Process 56 and Other Guidance 57 / Broadcasting Standards Authority

When can I refer my complaint to the BSA? You can refer your complaint to the BSA in any of the following situations within the following timeframes:

When can I refer? How long do I have to refer? If you are unhappy with the broadcaster’s decision You have 20 working days from when you receive the broadcaster’s decision

If the broadcaster has upheld part or all of your You have 20 working days from when you receive complaint and you are unhappy with the action they the broadcaster’s decision have taken to address the breach

If you have not heard from the broadcaster within 20 You have 60 working days from the date of working days of your complaint (or within 40 working days the original broadcast if the broadcaster wrote to you requesting an extension)

How do I refer my complaint to the BSA? You need to write to the BSA asking for a review (by post, or email us at [email protected]). Or you can complete the Refer a Complaint form on the BSA’s website, www.bsa.govt.nz. If you: • are unhappy with the broadcaster’s decision, you should outline the reasons why • have not received a decision, you should include the date you lodged your complaint with the broadcaster so that the timeframe can be checked.

What happens when I have referred my complaint to the BSA? When you refer a complaint, the BSA will:

• write to you and outline the process • send a copy of your complaint to the broadcaster for comment, and ask for a recording of the broadcast and for copies of all correspondence relating to your complaint • make sure that you have an opportunity to comment on any information provided by the broadcaster • notify you when your complaint is going to be determined (once all the information is received) and when you might expect to receive the BSA’s decision.

The Authority’s board meets to consider complaints approximately every five weeks. In most cases it will only take one meeting to decide the complaint, and you will receive a decision within 20 working days of the meeting. Some complaints are more complex. Additional time may be needed to collect more information, consider orders and/ or finalise the decision. If that is the case, the BSA team will keep you informed. Please note that the complaints process – from the referral to the BSA up until the Authority’s decision being issued – can take some time, usually several months, or sometimes longer if the case is complex or further information is required.

Can I get name suppression? The BSA’s written decision will include your name and the decision will be published on the BSA website. The board only considers requests for name suppression when dealing with privacy complaints, or in other exceptional circumstances. Name suppression is rare. If you believe there are special reasons why you should receive name suppression, please advise the BSA in writing – you can do this at any time before the decision is released. If name suppression isn’t granted, we will let you know and you may be given an opportunity to withdraw your complaint. FOR MOREINFORMATION YOU CAN GOTO THEBSA’S WEBSITE, The most common orders are: not to participate intheproceedings. If abroadcaster appealsadecisionto theHighCourt,complainant isnamedastheotherpartybutcan choose one monthofthedecision. Yes. BSAdecisionscan beappealed to theHighCourt,byeitherparty(thebroadcaster orthecomplainant), within Can aBSAdecisionbeappealed? statement aboutadecisionofinterest. TheBSAnever releases thecontact details ofcomplainants to themedia. The decisionispublishedontheBSAwebsite, andinthemonthly BSAnewsletter. SometimestheBSAissues amedia a few daysuntilitispublicly released. The written decision willbesentto you andto thebroadcaster. You willbeasked to keep thedecisionconfidential for What happenswhentheBSAreleases adecision? including, butnotlimited to: the finaldecision.TheAuthorityconsiders bothparties’ submissions andtakes into account anumberoffactors whether/what orders are appropriate. Itthendecideswhetherto make, ornotmake, any order, before releasing If theBSAisconsidering makinganorder itwillwrite to you andto thebroadcaster askingfor your views on If theBSAupholdsacomplaint, itmaymake orders. What orders can theBSAmake? • • • • • • • • • • compensation for aportionofanylegal costs reasonably incurred. compensation for abreach ofprivacy, ofupto $5,000 costs to theCrown (afine,essentially) ofupto $5,000 a broadcast statement, eg,acorrection, asummaryofthedecisionoranapology past decisionsand/ororders insimilarcases. whether thedecisionwillsufficiently remedy thebreach andgive guidance to broadcasters, orwhether the attitudeandactionsofbroadcaster inrelation to thecomplaint (eg,whether thebroadcaster the objectives oftheupheldstandard(s) the degree ofharmcaused to anyindividual,orto theaudience generally the seriousness ofthebreach, andthenumberofupheldaspectscomplaint something more isneededto achieve ameaningfulremedy orto sendasignalto broadcasters breach and/oraggravated anyharmcaused) upheld thecomplaint and/ortook mitigatingsteps; orwhetherthebroadcaster disputed thestandards Broadcasting Standards inNew ZealandCodebook WWW.BSA.GOVT.NZ

Complaints Process 58 and Other Guidance 59 / Broadcasting Standards Authority GUIDANCE: PRIVACY

This guidance is intended to elaborate on the guidelines set out in the privacy standard. It is not exhaustive and may require elaboration or refinement when applied to a complaint. The specific facts of each complaint are especially important when considering whether an individual’s privacy has been breached. The BSA will also have regard to developments relating to privacy law in New Zealand and in other jurisdictions.

This guidance has been numbered for ease of reference.

1. Who can complain? 3. Reasonable expectations of privacy

1.1 Privacy complaints may be brought only in 3.1 A person will usually not have a reasonable relation to individuals who are identifiable in a expectation of privacy in relation to matters of broadcast. The Authority is able to accept privacy public record, such as matters that occur in complaints from people other than the individual open court or matters that have recently been whose privacy is alleged to have been breached. given widespread media coverage. In some However, it retains the discretion to decline to circumstances, there may be a reasonable determine any complaint if this is warranted in expectation of privacy in relation to information all the circumstances. even though it is in the public domain. 1.2 Privacy complaints may only relate to living 3.2 In general, a person will not have a reasonable natural people (Privacy Act 1993). expectation of privacy in a public place. Public places are places that are generally accessible 2. Identification required to, and/or in view of, the public.

2.1 Privacy will only be breached where the individual 3.3 In exceptional circumstances a person may still whose privacy is at issue is identifiable in the have a reasonable expectation of privacy in a broadcast. Individuals must be identifiable public place. This could include situations where beyond family and close friends who would it is obvious from the circumstances that the reasonably be expected to know about the matter individual is particularly vulnerable, for example: dealt with in the broadcast (see BSA decision • people who are caught up in emergencies Moore and TVWorks Ltd, 2009-036). • victims of accidents 2.2 Broadcasters that take steps to mask a person’s • those suffering a personal tragedy identity to avoid a privacy breach must take care that the masking is effective. In some • those with learning difficulties cases, where there is a unique combination of • those with mental health issues identifying features within the broadcast, merely masking the person’s face will sometimes be • the bereaved inadequate (for example, see BSA decision DS • people with brain damage or forms of dementia and Television New Zealand Ltd, 2011-144). • people who have been traumatised or who are 2.3 In some circumstances, a combination of sick or terminally ill. information inside the broadcast and other readily available material or information from outside the broadcast may enable identification. 5.3 6.2 5.2 6.1 6. 5.1 5. 4.1 4. Highly offensive intrusions anddisclosures Children’s privacy Public figures A parent orguardian, orotherperson aged18or Disclosure ofprivate facts islikely to behighly Children, includingchildren ofpublicfigures, The meansbywhichprivate material isgathered For thepurposesofprivacy standard, achild Public figures, particularly thoseexercising best interests ofthechild. satisfied thatthebroadcast isnotcontrary to the of private matters, butthebroadcaster must be child undertheageof16years to thebroadcast parent orguardian), can consent on behalfofa over inloco parentis (standing intheshoesof • • • • • offensive where: of privacy. generally have highreasonable expectations by surreptitious, deceptive ordishonest means. offensive to broadcast private material gathered disclosure. For example, itmaybehighly affects theoffensiveness oftheintrusionor is undertheageof16. their publicroles. of privacy inrelation to matters pertaining to generally have lower reasonable expectations public power, andothers whoseekpublicity, consented to thebroadcast. to protect hisorherprivacy, orhasnot the person concerned hasmadeefforts the broadcast isexploitative orgratuitous the person isparticularly vulnerable to impactnegatively onreputation sensitive ortraumatic, orhasthepotential the material isparticularly embarrassing, harassment it isdonefor thepurposeofencouraging 7.6 7.5 7.4 7.3 7.2 7.1 7. Informed consent The greater theinvasiveness ofthebroadcast, the In general, consent must bewritten, recorded, or Only theperson whoseprivacy isinissue, or Where there isreason to doubttheperson’s The level ofconsent required mayvary Informed consent isprovided where aperson informed consent isobtained. more care thebroadcaster must take to ensure of thecase. interpretation anddependonthespecificfacts from thecircumstances’ willbeamatter for obvious from thecircumstances. Whatis‘obvious give consent. in theshoesofparent orguardian), can person over 18actinginloco parentis (standing in thecase ofachild,theirparent, guardian or ramifications ofparticipatinginthebroadcast. consent andunderstanding thepotential that theperson iscapable ofproviding informed broadcaster must take particularcare to ensure person ismentally impaired orintoxicated), the his orhercontribution (for example, whenthe capacity to understand theconsequences of the particularcircumstances ineachcase. depending onthetypeofprogramme and • • • • identifiable inabroadcast: freely agrees to contribute. and itsduration understands thenature oftheconsent of thecontribution understands thetruecontext andpurpose the broadcast is aware heorsheiscontributing to Broadcasting Standards inNew ZealandCodebook

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8. Legitimate public interest 9. Intrusion upon solitude or seclusion

8.1 A matter of legitimate public interest is a matter 9.1 Solitude is the state of being alone. Seclusion is of concern to, or having the potential to affect, a a state of screening or shutting off from outside significant section of the New Zealand population. access or public view. A person does not need It is more than something that merely interests to be alone to have an interest in seclusion (see the public. High Court judgment CanWest TVWorks Ltd v XY, HC Auckland CIV-2006-485-2633). 8.2 Matters of legitimate public interest may include matters such as: 9.2 A person will usually have an interest in seclusion when at home. They may also have • criminal matters, including exposing or an interest in seclusion in their home or on detecting crime their property even when they are not there. • issues of public health or safety 9.3 Hidden cameras will usually be regarded as • matters of politics, government or intrusive but each case depends on its particular public administration circumstances. The purpose of covert filming will be relevant; a purpose which is strongly • matters relating to the conduct of organisations in the public interest may justify the use of a which impact on the public hidden camera. • exposing misleading claims made by individuals or organisations • exposing seriously antisocial and harmful conduct (see BSA decision Balfour and Television New Zealand Ltd, 2005-129). 8.3 The degree of public interest in the material broadcast must be proportionate to the gravity of the breach of privacy, in order for the broadcaster to rely on public interest as a defence to the breach (see BSA decision MA and Television New Zealand Ltd, 2010-084). 8.4 The public interest must relate to the disclosure of the particular information or recording that is alleged to breach privacy (see BSA decision Russek and Television New Zealand Ltd, 2007-016). However, the public interest in the programme or series as a whole will also always be considered. in determining whetherastatement isfact or opinion: The following matters are relevant, althoughnotdecisive, listener wouldperceiveit. presentation. Itiscrucialhowareasonablevieweror or givingyouropinion?Italldependsoncontextand treatments’, are you stating a fact or simply commenting certain healthprofessionalsarepromoting‘bogus is anassertionoffactoropinion.Ifyousaythat However, itisnotalwayssoclearwhetherastatement reasons andpredicts possible consequences. It interprets news, offers criticism,provides possible News analysis usually contains bothsortsofopinion. from thefacts inthefirst sentence. sort ofcomment. Itisaconclusion drawn bythespeaker something to hide,’ isacomment, althoughadifferent to beinterviewed onthistopic. Ithinkhemust have judgement bythespeaker. ‘TheMinister always declines is disastrous’ isacomment. Itexpresses avalue others mayhold adifferent view. So,‘Thisdecision An opinionissomeone’s view. Itiscontestable, and statement offact. or wrong. So,‘Nationalhas60seatsinParliament’ isa A fact isverifiable: somethingthatcan beproved right apply to analysis, comment oropinion. The accuracy statement (Standard 9)only appliesto fact. Itdoesnot OR OPINION AND ANALYSIS, COMMENT – DISTINGUISHINGFACT GUIDANCE: ACCURACY • The languageused.‘Ithink’usually meansit is anopinion. must beassessed onitsmerits. However, noneofthesefactors isconclusive. Every case • • • • • Whether thestatement isattributed to someone. Whether evidence orproof isprovided. The The subjectmatter. Somesubjectsare The type of programme andtherole orreputation The languageusedintherest oftheitem. Ifmost assertion to thesameeffect would be. treated asanopinionthanabare unattributed is dueto theearthquakes’ ismore likely to be ‘Mr Jones,aresident inthearea, saidthe flooding as fact ifsupportingevidence isgiven. audience ismore likely to interpret astatement about themcould well beopinion. alternative medicine,for instance. Statements notoriously controversial –climate changeand outspoken views, ismore likely to beopinion. a programme hosted byaperson ofknown made inapaneldiscussion, afilmreview or speaking. Forperson the example,of astatement within anopinionpiece orsurrounded byopinions. be thecase –there could beastatement offact likely thisoneistoo. However, thatwillnotalways of thestatements intheitem are opinions,itis Broadcasting Standards inNew ZealandCodebook

Complaints Process 62 and Other Guidance 63 / Broadcasting Standards Authority GUIDANCE: BSA POWER TO DECLINE TO DETERMINE A COMPLAINT

Section 11 of the Broadcasting Act 1989 authorises the BSA to decline to determine a complaint which has been referred to it if it considers:

• that the complaint is frivolous, vexatious or trivial – section 11(a); or

• that, in all the circumstances of the complaint, it should not be determined by the Authority – section 11(b).

The purpose of this section of the Codebook is to provide guidance to complainants and broadcasters about the usual way section 11 is interpreted and applied by the BSA.

Comment BSA decisions

In the BSA’s view, the policy behind section 11 is that the The following summaries and examples demonstrate time and resources of the Authority, which are, in the the BSA’s approach in decisions declining to determine end, sustained by the people of New Zealand, should a complaint (cited by decision number; all decisions are not be wasted on having to deal with matters which available on the BSA’s website, www.bsa.govt.nz). objectively have no importance. Section 11(a): Frivolous, vexatious or trivial

The complaints system under the Broadcasting Act The BSA will usually apply the ordinary meanings of the is an open door system. Broadcasters are required words frivolous, vexatious or trivial. Obviously, there is to receive and consider all complaints that meet the some overlap in the meanings of these terms. relevant criteria for being a valid formal complaint. A frivolous complaint is one which the BSA considers to The BSA usually expects broadcasters to deal with be unworthy of being treated in the same way in which complaints they receive in a considered and appropriately it would treat a complaint which is not frivolous or comprehensive way. It does not expect a comprehensive which has some merit. Frivolous means not serious or analysis of a complaint when, on its face, it is frivolous or sensible, or even silly. trivial. The BSA is conscious that there is an economic cost in dealing with complaints and it does not wish A trivial complaint is one which is of little or no to see resources wasted on complaints that have no importance and is at such a level not to justify it being foundation whatsoever. treated as a serious complaint.

All complaints which are then referred by a complainant Examples of complaints that the BSA has declined to the BSA need to be considered by the Authority but to determine on the basis they were frivolous or with the qualification that if they are considered to come trivial include: within section 11 they need not be determined. Trivial accuracy complaints • • • • • • • • • • • a complaint thatareference to colony cages for a complaint thatareference to ‘anarea ofaround a complaint thatthephrase Police ‘force’ was a complaint thatareference to asearch area a complaint thatareference to atrain ‘engine’ a complaint thatareference to Prince William a complaint thatareference to ‘windchill a complaint thatareference to a‘31percent a complaint thatthemeaningofphrase ‘50 a complaint thatareference to ‘government a complaint thatpromos for upcoming was inaccurate (2012-100). hens being‘4cmmore than conventional cages’ was notaproper area measurement (2012-100) 15,000 rugbyfields’ wasinaccurate because that the ArmedForces (2011-067) inaccurate because thepolice were notpart of kilometres (2010-055) should have beeninsquare nautical miles, not was inaccurate (2011-009) Zealand (2011-004) because hewasalsothenext KingofNew as ‘thenext KingofEngland’wasinaccurate measurement wasbeingused(2010-033) factor’ didnotindicate whichtemperature inaccurate (2010-015) difference’ inmen’s andwomen’s paywas inaccurate (2009-150) times less power’ wasunclear andtherefore (2009-164) have referred to ‘New Zealandsuperannuation’ superannuation’ wasinaccurate asitshould between theprogrammes (2007-095) inaccurate, because there were advertisements programmes containing theword ‘next’ were considered to bevexatious include: vexatious; however, examples ofcomplaints thattheBSA The BSAisusually reluctant to labelacomplainant order for acomplaint to beconsidered vexatious. annoyance, butsuchanintention maynotbenecessary in complaint maydosowiththeintention ofcausing In somecases, aperson puttingforward avexatious has beeninstituted withoutsufficientjustifying grounds. A vexatious complaint, ontheotherhand,isonewhich Other frivolous/trivial matters Complaints aboutlow-level language • • • • • • • Complainants repeatedly referred complaints A complainant misheard thebroadcast, received a complaint thatanews item containing footage of a complaint thatanelection advertisement which a complaint abouttheuseofword ‘gay’ina a complaint abouttheword ‘damn’inanelection a complaint abouttheword ‘bugger’inafactual reasons given (2012-104,2011-087). complaints hadbeen dismissed andcomprehensive about thesameissue, even thoughtheirearlier Authority (2008-035). effect, butstill proceeded withareferral to the an adequate response from thebroadcaster to that breached standards oflawandorder (2012-100). a reporter walking backwards wasdangerous and because children are notallowed to vote (2011-158) used avoiceover byachildwasinappropriate news item, to mean‘homosexual’ (2011-118). advertisement (2011-143) travel programme (2011-084) Broadcasting Standards inNew ZealandCodebook

Complaints Process 64 and Other Guidance 65 / Broadcasting Standards Authority

Section 11(b): In all the circumstances, the complaint should not be determined

Additionally, in terms of section 11, there may be other BSA RETAINS good reasons for the BSA to decline to determine a ULTIMATE DISCRETION complaint. Examples include: This section is intended to provide • the complaint is based merely on the a guide only, and does not bind the complainant’s personal preferences (see section 5(c) of the Broadcasting Act 1989), or is a matter BSA in determining the outcome of of editorial discretion, which broadcasters are any future complaint. The BSA retains entitled to exercise: overall discretion and each complaint is o complaints that programmes about the Treaty determined on its particular facts. of Waitangi and New Zealand flags omitted certain facts (2010-009, 2011-055, 2011-087, 2011-170) o a complaint that news programmes failed to report certain stories (2010-086) o a complaint that an interview about Olympic drug cheating referred to Jamaica but did not discuss New Zealand’s alleged cheating history (2012-109) o a complaint that a news item reported differently on an event than a BBC item about the same topic (2012-117)

• the complaint raises matters which are incapable of being addressed as issues of broadcasting standards, the grounds of the complaint are unclear, or the complainant misheard or misunderstood the broadcast (2008-127, 2010-002, 2010-048)

• the complaint relates to material outside the Authority’s jurisdiction, such as printed internet content or on demand content (2010-070)

• a recording of the broadcast is unavailable or incomplete, or cannot be located because the content of the complaint does not correspond with any broadcast at the time specified in the complaint (2007-051, 2010-068, 2010-129, 2011-102, 2012-093, 2012-117). and theseincludethefollowing: when weconsiderapplicationsforordersofcosts, There aresomeprincipleswhichwewishtoapply Principles incurred duringthecomplaints process). been incurred (butmaybecosts otherthanlegal fees successful complainant for legal costs whichhave Costs awards are ordinarily to recompense inparta Section 16(1)oftheBroadcasting Act1989provides: and broadcasters ontheissue ofcosts awards. This sectionoftheCodebookisdesignedto give guidance to complainants COMPLAINANTS AWARDS TO GUIDANCE: COSTS • • • such mannerasitthinksfit. reasonable, andmayapportionanysuchcosts between thepartiesin party suchcosts andexpenses (including expenses ofwitnesses) asare ...the Authoritymay,inanyproceedings, order anypartyto payanyother There willbeexceptional cases where the We recognise andrespect thefreedom of This isajurisdictionwhichneedsto be,asfar costs willproperly arise. appropriate andinthesecases, issues of assistance oflawyers willbedesirable and assumed to follow. that anyrecompense for costs cannot be their lawyers butthey needto recognise complainants andbroadcasters to involve preparation andpresentation ofsubmissions. the needfor legal advice andlegal helpinthe as possible, accessible to participantswithout provide invoices for anylegal costs incurred. work beingdone.We do,however, askcomplainants to requested, whatwasdone,andinvolved inthe would usually have insufficient detail aboutthework something whichwe are ordinarily able to judgeaswe the complainant andthe complainant’s lawyer isnot Moreover, whatcosts are ‘reasonable’ asbetween proportion ofactualcosts shouldbeallowed. of costs awards solely orsubstantially byjudgingwhat widely andwe are notable to approach thequantification jurisdiction, fees charged by lawyers to complainants vary the impactoffees. Inthesecircumstances, andinthis involved andto theextent oftheirwillingness to accept approaches to theextent thattheirlawyers needto be that they do.Different complainants have different experience, anddifferent approaches to thework assessment, different levels ofrelevant skillsand Different lawyers have different methodsoffees contribution to thecosts actually incurred. is likely to berecoverable inanaward ofcosts isa In allbutthemost exceptional cases, themost that Amount ofcosts Broadcasting Standards inNew ZealandCodebook

Complaints Process 66 and Other Guidance 67 / Broadcasting Standards Authority

In these circumstances, our approach to the quantification of an award of costs must be broad brush and objective, and must take into account a range of factors. BSA RETAINS The factors ULTIMATE DISCRETION The factors which we will take into account when This section is intended to provide a guide considering any application for costs in favour of a to the principles the BSA will consider successful complainant and in quantifying any such in determining whether or not to award order will include the following: costs and, if so, the amount of any award. • the complexity of the issues raised The BSA retains overall discretion and in • the number of issues raised any particular case may take into account such factors as it thinks should fairly and • the complexity of the factual background appropriately be taken into account. • the number of substantive submissions that needed to be made

• whether the proceeding required resolution of any interlocutory or procedural issues

• the need for the complainant to have incurred costs to the extent that costs were incurred or at all

• the amount of costs incurred

• the nature and importance of the complaint to the complainant

• the public interest in the complaint.

APRIL 2016

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