|
|
The
Christchurch Civic Creche Case |
|
|
|
|
The High Court has
recently considered the ambit of the Broadcasting Standards Authority's
jurisdiction to order a broadcaster to apologise when it has breached the
Codes of Broadcasting Practice. The Court also considered the BSA's
obligation to comply with natural justice when imposing sanctions on broadcasters
for breaches of the Code. This was an appeal from
a determination of the Broadcasting Standards Authority (BSA). The broadcast
concerned was an interview on Radio New Zealand (RNZ) with a young man and
his mother on its Nine to Noon programme on National Radio. The subject of
the interview was their claim that Peter Ellis had sexually abused the young
man in 1985. The BSA had held that
the broadcast was unfair to Mr Ellis and lacked balance. It ordered RNZ to
publish a statement summarising its decision and apologising to Mr Ellis.
Importantly, the statement was to be broadcast by RNZ and published in the
four major metropolitan newspapers. RNZ took issue with the
BSA's order that the statement include an apology and that it be published in
media other than RNZ itself. It contended that the BSA did not give notice
that it was contemplating either order and that the BSA's powers under the
Broadcasting Act did not extend to forcing a broadcaster to apologise. It
appeared that underlying RNZ's opposition to an apology was a belief that an
apology would prejudice its defence to a defamation action the issue of which
Mr Ellis was then considering. The BSA had issued a
"Decision in Part", in which it concluded that the interview had
breached the relevant broadcasting codes of practice in that it was both
unfair and unbalanced but left the question of sanctions for later decision.
In essence, the BSA concluded that the broadcast had consisted of an
unidentified young man and his unidentified mother accusing an identified
person of unspecified criminal offending of a very serious kind and that such
a programme was likely to be inherently unfair to the person accused. The BSA then invited
submissions from RNZ and Mr Ellis with respect to the orders it should make.
RNZ requested that Mr Ellis make his submissions first and that they then
have the opportunity to respond. The BSA agreed to this request for
sequential exchange of submissions. Submissions were then duly made. The BSA then issued its
decision which required RNZ to apologise and to publish the relevant
statement in the four major daily newspapers. RNZ appealed to the High Court
where the matter was heard before Chief High Court Judge Randerson and Miller
J. Counsel for RNZ argued
that the BSA had erred by going beyond the penalty that Mr Ellis sought,
without notice to RNZ that it was considering an apology or publication of a
statement in media other than Radio New Zealand itself. The High Court held
that the BSA does have jurisdiction to order an apology as part of a
statement under s13(1)(a), where such apology is limited to the issues upon
which the BSA has made findings adverse to the broadcaster. The Judges
considered that the only constraint in the language of the empowering section
of the Broadcasting Act was that the statement the BSA can order must relate
to the complaint. Accordingly, nothing in the language of the relevant
section suggested that a statement ordered by the BSA may not include an
apology. Counsel for RNZ also
contended that there was a breach of natural justice, as the BSA did not
inform RNZ that it was considering ordering relief beyond what Mr Ellis had
sought in his submissions. The High Court disagreed, accepting counsel for
the BSA's submission that the BSA is not confined to the sanctions sought by
a complainant. The Court also
considered that the apology ordered would not amount to an admission that the
publication was untrue for the purposes of the possible defamation
proceedings that Mr Ellis had been considering. This was because the BSA had
expressly declined to deal with Mr Ellis' complaint that the content of the
interview was untrue (on the basis that it is not the BSA's function to
determine the truth or otherwise of allegations of criminal behaviour). In relation to RNZ's
complaint that the apology had to be published in other media than itself
(i.e. the newspapers), the Court considered that it ought to have been in the
reasonable contemplation of RNZ that the BSA might think publication in other
media was necessary to remedy the damage done by the interview. On this basis
the Court held that there was no obligation on the BSA, in the particular
circumstances of the case, to give RNZ express notice that it was considering
an order requiring advertising in other media. |
