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Is the BSA rejecting too many complaints?

By Steven | January 31, 2025

Odd fact about the Broadcasting Standards Authority: for the last few years, they’ve only been upholding about 5% of complaints.

Why? I think there’s a range of reasons. Generally responsible broadcasters. Dumb complaints. Complaints brought under the wrong standard. Greater adherence to broadcasters’ rights to freedom of expression in the Bill of Rights. (I might be a bit responsible for that one).

But you have to wonder whether they are rejecting some well-founded complaints. This level of upholds is historically low for the BSA. It’s gone on for some time. It’s much lower than the Media Council’s uphold rate.

In general, I’m a fan of the BSA. Their decisions are clear, thoughtful, principled, and generally (I think) right. But I’ve just looked at the last ten complaints, all of them rejected, and I can see two or three I think they got wrong.

Hartstone v NZME Radio

One is against Fletch, Vaughan and Haley on ZM radio. The hosts are talking about people snooping on their partners’ devices to see if they’ve been cheating. Vaughan reads out a listener text:

Vaughan [reading out text message]: I got my ex cheating while I was overseas. I checked his Find My iPhone and saw he was in a neighbouring city when he said he went for a run. He denied it at first but then confessed that he was cheating.

Hayley: Neighbouring city…

Vaughan: Everyone knows you leave your phone at home if you’re going to go for a run and hook up with people at the public toilets…

[laughter]

Vaughan: Come on guys! We’re better than this.

Fletch: Yeah, duh. Come on.

Vaughan: Chat to a gay, you know. Get some tips.

Hayley: Duh dumb dumbs.

Vaughan: Come on

Fletch: Duh.

Hayley: Yeah the gays should run a course.

Fletch: [laughs]

Vaughan: The gays should run a course.

Hayley: You know what I mean? A class.

Vaughan: Sneaky devils 101

Hayley: Sneaky devils.

Does this denigrate gay people? I think it does. Imagine if they’d said “Maaori” instead.

But the BSA didn’t uphold the complaint. They said the hosts had a reputation for being edgy; this was understood by their young audience; they were joking; it was brief.

The BSA also pointed out that the threshold for the discrimination and denigration standard (effectively a sort of hate speech provision) is a high one. It usually requires an element of malice or nastiness.

And, you know, free speech.

All true. But it strikes me that this was more pernicious than the BSA thought. It takes for granted that gay people are disloyal, dishonest and sneaky. That’s the premise of the joke. No-one questions it. The hosts run with it, repeat it, riff on it. The audience is young. The humour here, the fact that they’re all just making this assumption about gay people as if it’s just part of reality, actually makes it worse.

The type of speech cannot be said to be important in free speech terms (compared with news or serious drama, for instance). The penalty of an uphold does not much hurt ZM. They really need to be told that this isn’t acceptable.

McGlone v TVNZ

In another case, TVNZ’s 1News was doing a story on the dangers of crossing sandbars. It mentioned two recent drowning tragedies. It interviewed someone from the Coastguard, who said:

‘We recommend crossing the bar at high or low tide, so we can try and take the current out of the equation’.

This is pretty much flat wrong. No-one, including official Coastguard information sites, thinks you should be crossing a sandbar at low tide, as the BSA’s decision makes clear.

It’s also the sort of bad advice that (a) is easy to understand and remember and (b) can get you killed. Surely it’s exactly what the accuracy standard is about. The accuracy standard includes a requirement to make corrections.

The BSA didn’t uphold the complaint. When I first read the decision, I expected the BSA to say, as it very often does, that what the Coastguard guy said was simply analysis. It was just a recommendation. An opinion. The accuracy standard does not apply to analysis and opinion.

But the BSA didn’t do that. They said it was likely to be understood by viewers as a statement of fact. I think that’s dead right. I’ve criticised the BSA in the past for being too ready to treat things as analysis when the audience would understand them as fact. They didn’t do that here.

But they did say the error wasn’t material. I think their reasoning is tortuous, so I’ll give it to you in full:

[15]  The statement appears inconsistent with other Coastguard advice on bar crossings. Coastguard has said:

[16]  Many organisations agree it is unsafe to cross a bar during low tide.12 However, advice does vary. Some say it is most unsafe to cross a bar when the tide is going out, rather than at low tide.13 Others say the best time to cross is during slack tide (peak high or low tide) or to avoid crossing at ebb tide (mid-tide).14

[17]  It appears there is no one-size-fits-all rule for crossing a bar. Coastguard, Maritime NZ, and other organisations agree the safest conditions for a bar crossing, including the best tidal conditions, are contingent on the bar in question and advise local knowledge is sought before crossing a bar.15

[18]  In any event, it is not for the Authority to rule on the accuracy of a statement about the safest conditions for crossing any sand bar. To do so would overstep our role and area of expertise. However, we consider there are reasonable arguments the statement was not materially misleading or inaccurate in the context of the broadcast.

[19]  The item was not simply an educative piece on how to cross sand bars. It sought to highlight the risk and complexity involved in crossing sand bars. The broadcast emphasised a bar crossing is ‘among the most hazardous manoeuvres a skipper can make’ and coastal bars are ‘dynamic, unpredictable, and can turn perilous at any moment’. The Coastguard’s Bar Awareness Roadshow was also promoted, which was said to be taking place ‘to push down on [the] risk’ involved in crossing sand bars.

[20]  The statement cannot be viewed in isolation. Surrounding comments contextualised the statement by outlining that various factors are relevant in determining a safe bar crossing.16 The Coastguard representative listed four considerations: tide, current, wind, and swell. Therefore, in the context of the broadcast, viewers can be expected to have understood the relevant statement focused on just one of many relevant risk factors (the tide).

Look, I’m no expert. But as a rule of thumb it seems clear that you don’t cross sandbars around low tide, and any contrary general advice is dangerously wrong. If TVNZ broadcasts that advice, it’s an error, and needs to be fixed.

I don’t understand that stuff about it not being the BSA’s job to rule on that question. Of course they’re not experts at everything. That’s why they look at evidence. They are not experts at most of the subjects of the accuracy questions that come before them. But they still have to rule on them. And usually, they do.

The stuff about risk factors is all very well. But I can’t see how it makes the Coastguard guy’s statement immaterial. By finding that it’s not material, the BSA has left the story untouched, and TVNZ is not required to correct it.

But that’s not the end of the matter. The BSA had another reason for rejecting this complaint. I have to say, it’s a much better one. Because a broadcaster’s duty is not to get things right. It’s to make reasonable efforts to do so. Here, TVNZ interviewed a spokesperson from the Coastguard. Even if that guy got it wrong, surely TVNZ have behaved reasonably.

This is a strong argument, and one the BSA is increasingly relying on. Interview someone authoritative and you’re in the clear. You can make the case that this is all that we can reasonably expect of broadcast journalists.

I have sympathy for TVNZ and the BSA here. It’s hard to criticise either of them. Still, I think the correct analysis here is that TVNZ broadcast a material error, but did not breach standards when they did so, because they relied on an authoritative source.

But TVNZ did breach the accuracy standard when it failed to broadcast a correction after it was told about the error. I think that’s what the BSA should have held.

Al-Jaib v TVNZ

This case is a weird one. TVNZ broadcast a news story last June that said Israel would withdraw from the Gaza as part of a peace proposal. Everyone, including TVNZ, agrees that was wrong. Under the proposal, Israel would only withdraw from densely populated areas.

Everyone agrees the error was significant and material. That triggers TVNZ’s obligation to correct it.

What did TVNZ do? It said it could not correct the story itself, even online, because the news programme was recorded as a whole. It said it published, on its website, the following day, a story with the correct information.

That’s it. It did not broadcast anything. It did not point out, even online, that its earlier story was in error. It left that earlier story up, uncorrected.

The BSA said that TVNZ only needed to take reasonable steps to correct errors (this is a gloss on the standard, but okay), and that TVNZ had done enough.

Really? I think in general that a material error broadcast on air needs to be corrected on air. And that a correction, however it is published, needs to identify the thing it’s correcting.

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