BSA’s mission creep could prove to be its nemesis

The New Zealand Broadcasting Standards Authority may be about to learn that mission creep never ends well. Its provisional decision to claim jurisdiction over Sean Plunket’s online entity The Platform has far-reaching implications.

Its interlocutory decision was marked ‘Not for publication’: That was as naïve as thinking that old warhorse Plunket would meekly accept its finding that the BSA had jurisdiction over online broadcasts. The decision inevitably was published, and there were predictable reactions from the Platform’s owner and from the leaders of the two coalition partners with an inordinate influence on the actions of the present government.

New Zealand First leader Winston Peters posted on social media, saying “Why does the Broadcasting Standards Authority think they can make up their own rules in secret meetings to act like some Soviet era Stasi.” ACT MP Todd Stephenson – no doubt acting on instructions from party leader David Seymour – complained to Communications Minister Paul Goldsmith and intimated that ACT is considering a private member’s bill seeking the BSA’s abolition. Goldsmith batted the complaint away as an operational matter.

Both coalition parties see the BSA’s decision as mission creep and, by implication, an attempt to do something that is the prerogative of Parliament. It is for a majority of the House to determine the jurisdiction of its statutory regulators through legislation, not the body empowered by that legislation.

Before going further, I should describe what The Platform is, and what it is not. It is a digital platform that – through a website, app and social media – allows audience to watch and listen to hosts interviewing and commenting over nine hours a day, to participate in talkback, and to text hosts. It looks like radio with pictures, but does not broadcast directly via the radio spectrum. Instead, The Platform has an arrangement with Radio Aotearoa which takes a morning feed of content for transmission on its own frequencies. Radio Aotearoa, not The Platform, is the licenced broadcaster.

Details have yet to be released by the BSA, but assuming the current complaint relates to either Sean Plunket or Michael Laws (the morning hosts on The Platform) and that it was carried by Radio Aotearoa, logic suggests that any complaint should have cited the radio broadcaster. Doing so would keep the matter within the BSA’s clear jurisdiction.

Instead, the BSA took aim directly at The Platform. Its decision claimed it has jurisdiction to consider a complaint about The Platform’s Live Talkback programme on the basis the transmission of the programme met the Broadcasting Act’s definition of ‘broadcasting’.

“Taking a purposive approach to the Act, which is designed to provide for the maintenance of programme standards in New Zealand broadcasting, the Act is appropriately seen as capturing such modern forms of broadcasting. As there is currently no code of broadcasting standards specifically addressing the online broadcasting context, the complaint will be considered with a view to determining the broadcaster’s compliance with its obligations under section 4 of the Act [which relates to programme standards]”.

The use of ‘purposive’ is instructive. It suggests that the BSA is seeking to cover the complaint because no other body has jurisdiction.

What about the New Zealand Media Council? Does it not cover digital and online content and number among its members ten broadcasters including Radio New Zealand, Television New Zealand, NZME Radio, and Warner Bros Discovery? Are there not 46 digital platform operators who have placed themselves under the council’s jurisdiction? All true, but membership of the NZMC is voluntary and The Platform (determined to remain true to its stated ethos of unfettered speech) has chosen not to join it. Plunket’s view is that civil law (defamation etc) provides sufficient protection for the public.

I won’t repeat the BSA’s reasoning for claiming jurisdiction over The Platform. It can be found on The Platform’s website. Basically, it says that The Platform is captured by a reference to “other means of telecommunication” apart from broadcasting.

Significantly, the decision makes no reference to Radio Aotearoa and its use of The Platform’s content.

The decision goes on to note that the Legislation Act 2019 allows for pre-digital laws to be reinterpreted for the modern era.

That might sound reasonable except for two factors that the BSA either did not think relevant or of which it was unaware.

The first was one of its own decisions: Davies and TVNZ in 2004 addressed the very issue of jurisdiction over the state-owned broadcaster’s website content.

The BSA found it did not have jurisdiction and set out its reasons very clearly. This, in part, is what it found. It is worth quoting at length, although you can read the full decision here.

Downloadable content from a website differs from much other internet content in one important respect – it is viewable only once the user has specifically chosen to download and view it, usually through clicking on an icon on the relevant webpage. The material is not continually being shown on the website, regardless of whether users choose to view it, in the same manner that television stations broadcast irrespective of whether the audience chooses to watch. Downloadable video will not play unless specifically sought by the viewer.

By clicking on the relevant icon and downloading information from a website, the Authority considers that a viewer is “requesting” that the information be uploaded onto their computer. The information is not able to be viewed unless requested. Once downloaded, the information is in the viewer’s possession, and accordingly is for viewing only by that person.

In the Authority’s opinion, accessing information in this way amounts to “on-demand” transmission of a programme, for reception only by that person. As such, it falls directly within the exclusion contained in…the definition of “broadcasting”.

The Authority observes that downloading information in this manner is analogous to renting a video tape, or purchasing a tape from a broadcaster.

That is precisely what a listener or viewer does in order to directly access content on The Platform.

The BSA made an exception to allow it to consider complaints against broadcasters over live streaming of content that is being simultaneously put to air but, in effect, any adjudication on such content is based on the free-to-air broadcasting and digital streaming is no more than an ancillary delivery by the same provider. Crucially, it holds jurisdiction over the broadcaster.

By my reading, the BSA has ignored a strong precedent (of its own making) that runs counter to its latest decision, and it dates from within the digital age. There is no anachronism there that might be dismissed under the Legislation Act 2019.

The second factor is also a relatively short journey into the past.

In 2013 the New Zealand Law Commission published The News Media Meets ‘New Media’ which, with some updating, remains the blueprint for a single form of media regulation in this country.

In response, five months later all of New Zealand’s major broadcasters – both state and private – set up the independent Online Media Standards Authority to fill a gap the commission identified in the regulatory framework in respect of online news and current affairs. The gap existed in both the BSA and New Zealand Press Council’s jurisdiction. OMSA developed a Code of Standards for Online News and Current Affairs Content. which I reviewed along with Steven Price from Victoria University of Wellington and Luke Goode from the University of Auckland.  OMSA set up a two-tier complaints process chaired by former Court of Appeal and High Court judges.

In 2017 the six broadcasting members of OMSA signed a Memorandum of Understanding with the New Zealand Press Council for complaints against broadcasters’ digital content to come under Press Council jurisdiction. It made sense.

The creation of OMSA and its eventual incorporation into what was renamed the Media Council were clear messages that online activities sat outside the control of the BSA, a state-mandated organisation that reflects the fact that the state regulates and licenses the use of the airwaves.

The current BSA decision ignores that history.

And its reaction to criticism of the latest decision will only heighten disapproval. The BSA chief executive Stacey Wood was quoted by Stuff as saying that some of the reactions to it were “hysterical” and wondered whether Winston Peters’ reaction may be “just a touch on the dramatic side?”.   

If there is anything positive to come out of the situation it might be that, finally, there is a catalyst to adopting the industry-wide system of media regulation recommended by the Law Commission more than a decade ago.

However, we need to be realistic. No government since the commission’s 386-page report was published has been minded to adopt its eminently sensible recommendations. And the senior member of the current administration has shown almost no interest in meaningful reform of a media sector facing enormous challenges.

A dismissive reaction to their concerns over mission creep may see New Zealand First and ACT telling National to up its game.