It has never been sublime but now, by God, it is ridiculous: Media regulation in New Zealand has reached the point where the public it is supposed to serve are left confused and incredulous.
The fault lies with successive governments that have seen the issues, then walked away because they think the solutions are too hard or they do not have the guts to confront powerful foreign forces. Governments led by both National and Labour have wilfully ignored the fact that the entire system is anachronistic and needs urgent replacement.
Last week the outdated nature of the system was brought into sharp relief by the Broadcasting Standards Authority’s attempt to ram a round peg into a mouldy square hole. In order to claim jurisdiction over Sean Plunket’s online entity The Platform, the BSA was forced to squeeze every last morsel of possible meaning out of its empowering legislation.
The claim of jurisdiction hung on a provision of the Legislation Act 2019 that states enactments (laws) are to be applied to circumstances as they arise. However, the same Act states that an enactment’s meaning must be ascertained from its text and in light of its purpose.
The BSA was established under the Broadcasting Act 1989 to ensure that broadcasters met certain standards by giving the public an avenue for complaint when they believed those broadcasters had fallen short. The Act defined ‘broadcasting’ as follows:
…any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus but does not include any such transmission of programmes—
(a) made on the demand of a particular person for reception only by that person; or
(b) made solely for performance or display in a public place
The BSA decision stated that The Platform came under its jurisdiction because it was transmitted “via other means of telecommunication” and that the nature of its live programming meant that, to all intents and purposes, it was a radio broadcaster.
I don’t know about you, but I’ve never considered the device on which I wrote this column, and the device on which you are reading it, qualifies as “broadcasting receiving apparatus”. I would have thought that my accessing of The Platform was a fairly clear example of exception (a), even if the programmes sound and perform exactly the same as the broadcasts I receive on my trusty old transistor radio. The Telecommunications Act’s New Millenium definition of ‘telecommunications’ is a catch-all that would ensnare my iMac and iPhone in a flash, but is it reasonable to apply a definition from another piece of legislation that post-dates the Broadcasting Act by more than a decade? Not in my book.
I am not alone in that view, but the BSA is sticking to its guns. We shall no doubt see who is correct. Mr Plunket is likely to appeal the decision to the High Court. But let’s leave his travails aside for now.
The real point lies in paragraph 67 of the BSA’s decision. It states: “As a look through our annual reports will demonstrate, we have been calling with increasing urgency for Parliament to update the Act for over 20 years”.
Perhaps its claim of jurisdiction over The Platform is really an attempt to manufacture a tipping point that will finally move the government to act.
That could be good news or bad news for the BSA. It could spark legislative change, but what will it be? ACT wants to simply abolish the authority, and with the latest decision, New Zealand First’s leader Winston Peters is inclined to agree with his uneasy coalition partner. Who know what National’s thinking is on the issue? The current broadcasting minister, Paul Goldsmith, has lost the portfolio in a filing cabinet far, far away. Opposition parties appear occupied elsewhere.
In any event, reform of the Broadcasting Act is not what New Zealand needs. It needs a complete rethinking of how we might ensure information that flows to the public is not injurious to society or its members.
We currently have a clutter of separate regulatory bodies, each independent of the others, some with statutory mandates while others are voluntary. Meanwhile, the transnational platforms that handle the vast majority of information deny liability for their content and use their very, very deep pockets to fight each and every attempt to impose even modest forms of constraint.
The New Zealand public may be excused for being confused by the clutter. News media may be covered by the legally-empowered BSA or the self-regulating Media Council. Advertising may fall under the Commerce Commission’s oversight of the Fair Trading Act or be subject to the ad industry’s self-regulating body the Advertising Standards Authority. Harmful digital communication may fall under the control of the New Zealand Police or the Department of Internal Affairs and the public can get advice from independent watchdog Netsafe. And the Classifications Office (an independent Crown entity) analyses films, videos, magazines and books with, if necessary, the power to ban them.
Once upon a time (yes, that long ago) each medium was discreet: Print meant newspapers, magazines and books; broadcasting meant radio and television; movies were in theatres; books were on shelves; and advertising appeared in one or other of the foregoing. Over the past two decades, the digital environment has rendered those distinctions irrelevant.
Modest attempts have been made to fit into this brave new world. An Online Media Standards Authority was established to accommodate print media websites which fell outside what was then the New Zealand Press Council. OMSA was later absorbed into the older body, which was renamed the New Zealand Media Council. Broadcasters have voluntarily joined that body because their online content is not covered by the BSA. Forty six digital platforms have opted to place themselves under the council’s oversight. You will not find Facebook, TikTok, X or any other social media in its list of members.
The Media Council remains a voluntary organisation…and some smaller entities have joined then left to enjoy the same freedom as other unregulated organisations. One of those outside the tent is The Platform.
There have been numerous attempts over the past two decades to ‘update’ regulatory laws, with little or no success. The most spectacular lost opportunity was the then National government’s failure to take up the recommendations of a comprehensive review by the Law Commission in 2013. Those recommendations were a sensible balance between freedom of expression and accountability. It still sits on the Law Commission’s website, like Marley’s ghost offering each new government a single chance of redemption. You will find it here . Much has changed since it was written but it still represents a basic framework upon which a new system could be built.
The BSA decision has added impetus to ongoing calls for change. For example, retired judge and expert in digital communication regulation, Dr David Harvey, has been examining New Zealand media regulation and is due to publish a paper on the subject later this week. There will doubtless be a few points of detail on which we disagree, and many on which we agree. However, I am certain that we concur on a central point: The present systems are broken and must be replaced. No amount of ‘updating’ will meet the need.
In my view, any new system will need to resolve some fundamental points of contention.
- Should there be a single regulatory authority or a series of bodies charged with different areas of oversight?
- Should there be state regulation, voluntary self-regulation, or a combination of the two (say, a voluntary organisation empowered by legislation – much as the advertising Standards Authority is informally empowered by the Fair Trading Act and a number of other statutes)?
- Will it involve prior restraint, complaint-based remedy after the fact, the strengthening of standards as a form of self-restraint, or a combination of all three?
- Where will lines be drawn in defining speech that causes harm, rather than offence?
- How will we decide what is private speech and public speech, in other words, what is the digital equivalent of a private letter and a published one?
- Will social media platforms continue to be regarded as common carriers or will they, by virtue of their manipulation of content, be deemed to be publishers (and subject to the same constraints and penalties as print publishers and broadcasters)?
- Will we seek our own solutions to issues involving transnational digital platforms or will we join other nations in common approaches?
- How will a new system be future-proofed to avoid it falling victim to the same technological determinism that has been the undoing of the present regimes?
These (and, no doubt, many other) questions will need to be resolved before a new regulatory environment can be built. That resolution will be a fraught process because potential participants in any debate will run the gamut from neo-liberals who will settle for nothing less than full de-regulation (the market will manufacture its own medicines) to those who believe humankind must be protected from itself (and no-one should be permitted to cause the slightest offence). Those two extremes will never reach common ground but there remains the potential for agreement along the rest of the spectrum.
It is vital that any structure set up to oversee the flows of information within our society has the public’s trust. With trust in media at an all-time low, a trusted regulator is the best chance for restoration of a status that is increasingly important in a world awash with disinformation and incivility.
So, the first question may be this: How do we create the conditions in which we might strive for an increasingly uncommon commodity – consensus?
New Zealand is often accused of guaranteeing inertia by forming a committee. However, there may be some hope for the future if both National and Labour agreed to include in their election manifestos that they will be bound by the recommendations of a non-partisan Royal Commission on media regulation. Consulting the nation and then answering the bullet points above could form part of its terms of reference.
