Clause 28.2 of the Subscription Broadcasting Code addresses (as does clause 12 of the Broadcasting 
Code for free-to-air broadcasters) only programmes which feature matters of public importance. They do not address matters as mundane as a reality programme. Although section 39 of the Constitution permits the Tribunal to adapt the law to bring it in accordance with the Bill of Rights, it would be impermissible for this Tribunal to, for example, lift the phrase “public importance” from the Code and then apply it to the programme complained about. Such an interpretation would basically change the meaning of clause 28.2 and is clearly not authorised by section 39.
The Advertising Standards Authority applies a Code which has a wider ambit than the BCCSA Code, and relates to promotional material. The present programme falls within the jurisdiction of the BCCSA since it is, in the main, an entertainment programme. If indeed an error has been made in the programme then that is not an area within which the BCCSA Codes permit the BCCSA to act. The possible error is, within the ambit of the BCCSA Codes, not of a type that it is called upon to adjudicate. The level of entry for the BCCSA, according to the Codes which it applies, lies at a higher level. It does not concern itself with mundane matters such as errors in a reality show. Its focus is on news, comment on matters of public interest, the right to reply in such matters, the protection of privacy, reputation and dignity, information to the public in regard to the nature of programmes and films, the protection of children and, generally, the exclusion of XX and X18 material which relate to pornography and excessive violence and, ultimately, hate speech based on race, ethnicity, religion and gender.
The complaint was, accordingly, not upheld.