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BSA in a bind
By Steven | April 3, 2008
I think the BSA has broken the law.
I think they’ve done it in order to avoid breaking the law.
Confused? Let me explain. They’ve issued a decision upholding (by majority) a complaint against TVNZ’s Sunday programme on grounds of inaccuracy and unfairness. But the decision contains no reasoning. It seems this is because the reasoning cannot be explained without breaching a name suppression order.
The BSA is not obliged to publish reasons for its decisions (though until now, it always has, as far as I can tell). But under section 15 of the Broadcasting Act:
Copies of the decision of the Authority… , which copies shall include in each case the Authority’s reasons for its decision, shall be procurable by purchase from the Authority at a reasonable price.
I phoned the BSA yesterday and asked to buy a copy. Today, they declined.
That seems to me to be a breach of section 15. They simply don’t have the power to refuse me. What’s more, this was a majority decision, with one member dissenting. The public should be allowed to critique it. Even more importantly, we do not have access to whatever guidance the decision contains about what amounts to unfairness and inaccuracy.
Still, it’s quite possible to imagine a BSA decision that’s impossible to write without providing details that would breach a suppression order. That would obviously put the BSA in a damned-if-you-do/damned-if-you-don’t sort of fix. If that’s the case, it’s hard to be too critical of the BSA.
Perhaps, though, it suggests that they should have declined to determine the case in the first place, which is something a High Court judge recently suggested they should have done in a different context. I’m hesitant to advance even that criticism, though. It may not have become apparent until well into the process that the decision would inevitably involve a breach of a suppression order. In any event, declining the complaint may have denied a justly aggrieved complainant a remedy.
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