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The Broadcasting Standards Authority and the Bill of Rights
By Steven | February 7, 2008
As I mention below, Claudia Geiringer and I delivered a paper at the conference for John Burrows about the Broadcasting Standards Authority and the Bill of Rights Act (BORA).
The BORA requires the BSA to ensure that any restriction it imposes on the media’s freedom of expression (by upholding a complaint, for example) is reasonable and demonstrably justified under section 5 of the BORA. (It also has to be “prescribed by law”, which raises a few issues, but I’ll put those aside for now).
The BSA is certainly aware of its responsibilities under the BORA. When upholding a complaint, it routinely includes a paragraph saying:
For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above [a reference to the BSA’s general reasoning applying the standards but not mentioning the BORA], the AUthority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
You might be comforted by that sort of boilerplate. We weren’t. It’s true that the BSA’s decisions are generally carefully reasoned, but we concluded that the BSA needed to approach its obligations under the BORA in a more rigorous and systematic way. (Incidentally, this also applies to the Film and Literature Board of Review, the Advertising Standards Authority and the Press Council, and probably a range of tribunals and bodies whose work impinges on rights).
This isn’t an easy task. The BSA gets little in the way of BORA arguments from the broadcasters beyond a taliesmanic invocation of the right to freedom of expression. It gets almost no guidance from the High Court. The test laid down in the leading case of Moonen is virtually impossible for bodies like the BSA to apply, since it involves identifying different meanings rather than applying standards. The BORA itself sets nebulous standards, and its interaction with statutes like the Broadcasting Act and the Codes of Practice can be complicated. As Professor Burrows has noted, BORA vets of legislation conducted by the Crown Law Office and the Ministry of Justice are often opaque and unhelpful.
Still, it’s not an impossible task. The BORA requires proportionality. This means that benefit to society from upholding a particular complaint must outweigh the harm that’s done to freedom of expression. And that involves (as the courts are increasingly doing) looking to see why we value freedom of expression in the first place. If the particular speech in question is heavily supported by those rationales (such as political speech), the BSA should be slow to restrict it unless there is a very strong countervailing interest (such as great harm to reputation or an inaccuracy that might seriously mislead the public). On the other hand, types of speech that don’t serve those rationales (such as revealing private facts about someone without any public interest justification) may much more readily be restricted.
In our paper, we try to unpack this balancing/justification process and suggest ways that bodies like the BSA might fit it into their reasoning. To cut to the chase, here are a few implications:
- the BSA is right to set high thresholds for upholding complaints about taste and decency, and about denigration/discrimination;
- the BSA is also right to weigh privacy, and especially children’s privacy, heavily in the balance;
- the BSA needs to take extra care to ensure that it isn’t discriminating against radical or unpopular viewpoints in the guise of maintaining good taste or law and order, etc;
- there is probably no justification for upholding complaints about insignificant inaccuracies (the BSA is also heading in this direction);
- when serious inaccuracies are alleged, the BSA needs to be very clear that it gets it right, and this may well involve using its powers to hold hearings, call for disclosure, second experts, and conduct its own inquiries, more than it currently does , which is hardly at all (admittedly, the ordering broadcasters to make disclosure of relevant materials can raise difficult source-confidentiality issues);
- the BSA needs to refer to the BORA in its discussions on penalties;
- upholding a complaint about balance requires less in the way of justification than upholding complaints against other standards. (Broadcasters will love this one! But it follows from the recognition that if you value speech for its ability to produce (or test) truth – the “marketplace of ideas” rationale – then you need to accept that a requirement for broadcasters to air a greater variety of viewpoints both restricts and fosters freedom of expression. Likewise, if you value freedom of expression because it facilitiates democratic self-government, then you really ought to accept that balance and right-of-reply regulations promote this too, by widening the debate, and providing more platforms for civic participation and a greater diversity of information to the public.)
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 49 Comments »
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