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On crooks and Labour voters

January 30, 2026

There’s a sort of maxim we talk about in defamation classes in law school. It illustrates a point, and it’s good for a chuckle. “It’s not defamatory to call a crook an honest person”. Because it’s only defamatory if it tends to lower you in the opinion of “right-thinking members of society generally,” see?

Let’s put a finer point on it. It’s not defamatory to call a crook a police informant. Because right-thinking members of society generally would not think less of an informant. They’re the good guys.

This might not bother you overly, but it points up a bigger problem with defamation law. Is it defamatory to falsely say someone has had an abortion? No? (Maybe a breach of privacy, but that’s it?) Well, let’s say they are a devout Catholic.

Is it defamatory to falsely say someone’s had a blood transfusion. No? What if they are a Jehovah’s Witness?

That they vote Labour? What if they’re an outspoken National supporter?

The problem is that our test for what’s defamatory is based on what society as a whole thinks. And that can mean that false statements about people that ruin their reputation in a community with a particular set of values may go unpunished. (Note to defamation nerds: it’s often possible to spell out a hypocrisy meaning here. It might not be defamatory to say someone’s voted Labour, but it is defamatory to say they’re a hypocrite, and that might be one of the meanings if you’re accused of voting against your professed views).

A recent case casts bright light on this problem, and the judge suggests it might be time to fix it, though her hands are tied.

Local body candidate Paul Young sued commentator Morgan Xiao for defamation. He said Xiao had told people Young supported Taiwanese independence. Young said he didn’t. Xiao said he did. The judge said it didn’t matter. Even though the audience was the Chinese community and, to many in that community, this allegation is a dagger to the heart. That’s because wider NZ thinks it’s fine to support Taiwanese independence.

As Justice Tracey Walker said, “the coherence of this principle in a pluralistic society may need to be revisited since the reputation of a person within their own ethnic or religious community may be damaged by a statement which would not be regarded as damaging within society in general. However, the weight of authority currently does not permit this Court to depart from the principle.”

It’s true, it would have been a big call. And it’s a reform that pushes against the right to free speech in the Bill of Rights, since it expands the reach of defamation. But Walker J is not the first judge to question this rule. You can make quite a good case for reform. It seems manifestly unfair. It does seem odd that the characteristics of the audience can be considered when trying to figure out what a published statement means, but not whether it’s defamatory. The United States adopts a different rule, where damage to reputation within a significant community counts. Finally, courts, including the High Court, have recently invented a whole public interest defence to defamation, and a harm threshold. Couldn’t they go here too?

I’m not really criticising Walker J, a former media lawyer. The judgment generally strikes me as excellent. It’s reportedly under appeal though. Maybe an appellate court might take an interest in the issue?

And I should point out that the judge still finds the Mr Xiao defamed Mr Young, by accusing him of corruption, disloyalty, dishonesty and unfitness for public office. She awarded $225,000 in damages. (Sorry I can’t find a link online).

Other points of interest from the judgment

More than minor harm revised?

To be defamatory, a statement “must inherently tend to harm the reputation in more than a minor way”. That is, the words themselves, combined with their reach, must be sufficiently serious to count as defamatory. I’m not at all sure that this is what the minor harm rule was originally about, but I don’t think it’s doing any… harm. The minor harm rule still pops up again later. That is, if the plaintiff can show that the nature of the words is such that they are sufficiently harmful, the defendant then can try to show, using evidence, that in fact they did not do more than minor harm (because they were said to people who didn’t believe them, or the plaintiff already had a bad reputation so they didn’t add much, for example).

A different approach to meaning online

Things online are read differently. People tend not to read them closely. They skim. They skate over the surface. They carry impressions from earlier in a thread. All of this can shape meaning. Judges overseas have made similar points. It’s being bedded in here now.

Some good practical advice

Commentators sometimes adopt facts and treat them as true and add their own take on them. Those facts may be defamatory and wrong. Commentators are best advised to write “If true then…” The judge says this a couple of times. Mr Xiao did not do it. It’s not a formula that will always render a publication safe. But it makes it more likely to be treated as an honest opinion or a responsible publication.

The new public interest defence

Justice Walker is always worth reading when she writes about this. Her analysis was also really good in Christian v Bain.

Here, she found that the defence wasn’t available to Mr Xiao because:

— The allegations were serious and called for careful verification, particularly in the lead-up to an election; Mr Xiao took little care.

— his reporting was deliberately selective

— he did not fact-check

— he relied on sources but didn’t say something like “if true, then…”

— he relied on obviously biased sources

— the sources themselves did not provide evidence for their claims

— he presented his findings as an “investigation” but did not investigate

— he included no balance

— he deliberately omitted material inconsistent with his allegations

— he used hostile vilifying language; he was running a campaign

— Mr Young had publicly taken issue with the claims. Mr Xiao did not retract them or, it seems, stop making them or properly report his denial.

Interestingly, the judge held that the failure to put the allegations to Mr Young before publication was “not a weighty consideration.” If Mr Xiao was mainstream media rather than a social media commentator, it certainly would have been. It seems that the judge didn’t think that step could be expected in publications of this sort. But it was still a factor of sorts, and supported her conclusion that the publications were not responsible ones.

Nor did she feel that Mr Young’s failure to respond on the platform (WeChat) amounted to some sort of admission. He wasn’t required to do so. Nor was he required to try to publicly counter the harm to mitigate the damage: the judge said this would have been counter-productive or futile and so was not necessary.

I think all of this is really helpful in understanding how the new defence of responsible communication in the public interest operates.

Grapevine effect

This is the idea that statements published online can spread online and off. There was little evidence of spread. The judge found that thousands access the posts, but not more. But she was prepared to infer that the posts would have spread and “garnered wide attention in the Chinese community”, in part due to evidence of shunning given by Mr Young.

Topics: General | Comments Off on On crooks and Labour voters

BSA bludgeons balance standard again

January 27, 2026

I have long been frustrated that the BSA seems to have defined the balance standard almost out of existence. Balance isn’t required because the thing you’re complaining about wasn’t the focus of the programme. Or the programme’s not controversial. Or the introduction makes it clear the audience is only getting one side. Or the issue wasn’t “discussed”. Or the nod toward other opinions that was included is enough to satisfy the standard. Or balancing material might be provided in the future. Or it might be provided on other media outlets.

Balance complaints are very rarely upheld. In fact, the BSA’s Codebook says they rarely will be. (I think this is extraordinary. Imagine if the Real Estate Authority said, “Yeah, we’re not going to uphold many complaints about real estate agents’ misleading conduct”). It also strikes me as very odd that the BSA in its Codebook can graft a further exception onto the standard that is not present in the statutory language about balance.

Anyhoo. Here’s another case that illustrates my point. Radio NZ’s The Detail broadcast an episode last September that was essentially an attack on rest home operators. The programme was 24 minutes long. It centred around an interview with Consumer NZ’s Jon Duffy, which made up most of the running time. Duffy was very fair-minded. But Consumer advocates for residents and has brought a complaint to the Commerce Commission on their behalf (as The Detail revealed). Duffy said many rest home contracts were “fundamentally unfair”. He said the retirement village operators had “too much power”. He said reform was long overdue. He gave examples of unfair provisions, in detail. He pointed out that most retirement villagers were profit-motivated and answerable to shareholders. Residents can be treated as a nuisance.

The Detail also interviewed Grey Powers Gail Chambers who was also critical of retirement village operators.

We also heard soundbites from several other people who criticised operators, including a residents’ advocate and Jane Wrightson.

The programme was framed around an incident where the factual details were murky, but where it seems Condell retirement village emailed its residents to chastise them for having a boozy BBQ, something that may or may not have actually happened, whereupon an alcohol ban was imposed. (The residents felt they were due an apology for the criticism. Somehow this made it all the way to the Retirement Commission, which did not uphold the complaint).

The Detail’s host seemed pretty much entirely onside with the residents, calling this “crazy” and “getting told off as if you were a toddler”, and said that residents needed to be respected and not treated as inmates or assets. (The Retirement Commission’s disputes panel said the village had not been disrespectful or discourteous in its communications, which were the subject of the complaint).

All in all, it was an interesting programme, and there very much seemed to be substance to the complaints about retirement villages. But one thing was noticeably absent: any voice from the operators, from Condell or from an industry spokesperson. How might they defend themselves? It’s hard to think they’d have nothing to say. The programme accused them of vociferously lobbying against regulation. What was their case? Does it stack up?

I would have thought that RNZ would instinctively have wanted to include that voice in this programme. But it didn’t. So the Retirement Villages Association (the obvious source of a contrary view) complained.

You know where this is going. The BSA didn’t uphold it. It reached for its bag of tricks for refusing balance complaints. First, it said that it was clear to listeners that they were only getting one side. The programme’s introduction clearly spelled out its focus.

Did it? I note, first, that The Detail bills itself (with justification, I think) like this: Join The Detail team six days a week as they make sense of the big stories with the country’s best journalists and experts.

Here’s the introduction to this particular episode, quoted by the BSA:

The 8 September 2025 broadcast of The Detail included an item discussing a ‘power imbalance’ between retirement village operators and residents. It started by discussing a Retirement Commission Disputes Panel case about a permanent alcohol-free retirement village policy:

Happy hours are now permanently alcohol-free at [a Retirement Village] after a Christmas Day barbecue that may or may not have breached the village rules… But residents said subsequent communications from village management, accusing them of boastfulness and bullying, exposed them to ill treatment and distrust. It was elder abuse and they wanted an apology.

…

Look, in the grand scheme of things, this case is not a big deal — but it has highlighted issues of imbalance between retirement village owners and their residents.


I don’t think this intro really suggests we’re getting only one side of that dispute. Quite the opposite. Nor does it really reflect the in-depth general discussion of unfair contracts that the programme spent most of its time on.

But the BSA had another reason for rejecting the balance complaint. Jon Duffy’s fairmindedness meant that many of his statements contained some sympathy for the position of the operators. This is true. The BSA sets them out at length.

But… he is still on one side, and that was very clear from the thrust of his comments. In fact, everyone in the programme was on that side. The host did not ask Devil’s advocate questions. And here’s the most important thing: what Duffy said was not necessarily what the retirement village operators would have said in defending themselves from what were fairly serious criticisms. And there was really no reason to think it would be. Many criticisms that were advanced at some length went unanswered.

Exhibit A: one of the main examples of the problems with retirement home contracts was that, if you want to get out, you may have to wait for a long time – sometimes, even years, said Duffy – before the Village gets around to selling your place so that you can be repaid (albeit without any capital gains). Meanwhile the resident has to keep paying weekly fees, even though they’re not benefiting and no-one’s living there.

The BSA says – well, Duffy addresses this criticism and answers it for the retirement villages. Here’s the exchange:

The Detail host: Which gives no incentive for the village owner to actually sell it in a hurry.

Consumer NZ: Well, that’s the suspicion in some cases — and certainly in some cases there’s, you know, as you can see in the dispute that’s given rise to this episode, there can be real bad blood between management and residents and so, it’s very easy for a resident to jump to the assumption that the operators are just sitting on the weekly fee and then they’re not making every effort to sell the property. It could just be that the market’s slow. It could be that the villa has been occupied for 10 years and actually needs to be refreshed before someone’s going to buy it. All of those things take time and all the while that’s happening the resident doesn’t get their money back and also has to continue to pay their weekly fee in some instances.

Well, okay. But here’s what the Retirement Villages Association would have pointed out:

Weekly fees cover ongoing services such as staff, maintenance, insurance, and amenities. They are not “profit” that operators simply “sit on”.’

Issues around retirement villages are fairly complicated. They’re important to people. Lots of people are affected. I suspect there’s a lot of misunderstanding about them. The programme made specific and detailed allegations. The criticisms were pretty serious. They were not challenged. If the Villages’ response is flannel, I’d like to hear it debunked. All of this, for me, makes it a prime example of the need for proper balance. I think it falls squarely within the balance standard, meaning RNZ was obliged to make reasonable efforts to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest.

I don’t think they did that. And the BSA didn’t call them out for it. Journalism is the poorer for it.

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Reality Check Radio weighs in on BSA jurisdiction issue

January 27, 2026

The Broadcasting Standards Authority has given Reality Check Radio permission to make submissions on the question (raised by a complaint about The Platform) of whether the BSA has jurisdiction over online broadcasters.

The BSA has also published a copy of its legal advice on the issue, which it sought last month. It concludes that the BSA has jurisdiction. As I’ve said before, this is also my conclusion.

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The last word on Canadian alcohol guidelines

January 13, 2026

I’ve written to Dr Adam Shenk at the Canadian Centre for Substance and Addiction, which wrote the report containing new (two-drink) guidelines.

He says that while Health Canada commissioned the guidelines, it has not posted them or endorsed them. He says that, while there’s no formal process for endorsing them, “the inference is that whichever guidelines appear on Health Canada’s website are the guidelines recommended by Health Canada.” Those are the old ones (15/10).

I should also note that the CCSA report does not quite make “two-drink” recommendations. Dr Shenk: “It would be most correct to say that the 2-drink limit corresponds to the low-risk zone, but we nowhere recommend for people to reduce to only two drinks per week.”

So for my purposes, I’d conclude that the Media Council was right and my criticism below is not. Sorry, Media Council!

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Talley’s defamation decision looks strange to me

December 18, 2025

I read a lot of judgments, and particularly ones about media law. I have never felt more disconcerted than when I read this one.

As you probably know, Talley’s sued TVNZ for defamation over a series of stories (and related online articles) from 2021. They mostly alleged health and safety violations. TVNZ defended it, and the trial was held in September and October this year. (Confession: I was overseas at the time and didn’t follow it closely).

The trial was before a judge alone, Justice Jagose. His decision is out. TVNZ won.

I’m not saying that was the wrong result. I suspect it was right, though it’s hard to tell. But the judge’s reasoning has left my head spinning.

What I expected

Let me tell you what I expected this judgment to be about. I thought the key issues would be whether TVNZ’s allegations were true, and if not, whether TVNZ had a defence known as “responsible communication in the public interest”. I’m especially interested in the responsible communication defence, because I was involved in the case that created it. The defence is pretty much what it says on the tin. You have a defence to defamation if you can prove you were publishing about some matter of public interest if you can show that your publication was responsibly prepared, even if it turns out to be wrong and defamatory. Obviously, a lot turns on what counts as “responsible” preparation, and there’s limited case law on that.

I am a proud defamation nerd, so I was eager to see whether the judge might enrich our understanding of what sort of conduct does, and doesn’t, count as responsible.

But the decision was hardly about truth or responsible communication at all. Instead, the judge held that almost all TVNZ’s publications didn’t have a defamatory meaning (or at least, didn’t have the meanings that Talley’s said they had).

I didn’t see the broadcasts. But Justice Jargose describes them in detail.

The first programme

I won’t go through all the broadcasts. Let’s just look at the first one. Here’s a summary of that story, incomplete, but fairly detailed. TVNZ led its news broadcast with an “exclusive investigation” into “health and safety concerns” at Talley’s, based on information from a “whistleblower”. The whistleblower said Talley’s Ashburton factory, where a woman recently had her hand crushed “is another accident waiting to happen.” The whistleblower supplied images that “don’t look good”. They show a “different side” to the factory, “pulling back the curtain” compared with the “spotless image” presented by Talley’s.

The whistleblower says (with voice and body masked – “for his protection”, TVNZ says) “I’m sorry but these guys are lying to them. They’re lying to their customers.” TVNZ reports that Talley’s has had several accidents across its operations. The whistleblower says “To me, what they are doing, they don’t even care because these people are easily replaceable.”

TVNZ broadcasts the images of filthy machines, a contracter standing, apparently dangerously, atop a loaded truck, and a “machine with exposed pinch points where people can be trapped”.

The whistleblower says, “If your hand is trapped in the machine, your fingers or whatever, the machine keeps running.”

TVNZ says Talley’s claims the photos are taken out of context, and that Talley’s addresses safety issues whenever they arise. TVNZ shows some photos of clean safe equipment supplied by Talley’s.

The whistleblower says, “What I’m saying has not been there for one or two days, it’s been there for months.”

Talley’s says hazards like the pinch points have been put under guard since an audit. Its CEO says it’s a safe site.

TVNZ’s reporter Thomas Mead says, speaking over an image of a redacted email, “Except that just three months ago a woman had her hand stuck in a machine on the Ashburton corn line. A leaked email showing Talley’s had to call emergency services to get her out then told staff to keep quiet, writing “do not share any information, discuss or pass comment about this incident outside the business.”

(Mead to the CEO) “Was she safe?” CEO: “Well, if she’d followed the proper procedures, she would be.”

TVNZ reports that WorkSafe investigated but did not take any action, then says “The two sides could not be more opposed, Talley’s refuting any suggestion they put profit over their staff.”

The whistleblower: “Everyone can see it. Everyone, managers, supervisors, everyone is there. They know it’s there. They just walk away.”

CEO: “I feel that we are definitely doing everything we can to try and make sure that people do go home safely on a daily basis.”

TVNZ says not everyone agrees. Mead then reports that Talley’s reneged on an initial invitation to let TVNZ film inside the factory, and then tried to persuade TVNZ not to run the story with a mixture of legal threats and arguments that the story wasn’t of public importance. Mead said the story was in the public interest and that people could make up their own minds.

The meaning

The first question for the court is: what meaning would ordinary reasonable viewers take from this?

Here’s what Talley’s said was the meaning or “sting” (that is, the defamatory barb) of the broadcast:

(a) Talley’s requires its staff at Ashburton to use unsafe machinery without adequate guarding at exposed pitch points.

(b) It disregards safety concerns at Ashburton.

(c) Safety standards at Ashburton are at a low level endangering its employees.

(d) Talley’s lies to its customers about worker safety at Ashburton.

The judge said none of those meanings were there.

The judge’s reasoning

Here’s the relevant passage:

From the perspective of that ordinary reasonable viewer, the broad impression I carried away in my head was the 1 July 2021 meant, on the basis of the unidentified source’s photographs and the worker’s injury, TVNZ questioned the adequacy of food safety and health and safety measures taken at Talley’s Ashburton site, to which Talley’s responded [that the problems] are or have been (and, in respect of the injured worker, WorkSafe appeared satisfied was) addressed in the particular circumstances, as illustrated by Talley’s provision of alternative photographs, but would prefer not to be the subject of television broadcast news. Except for his reply to Talley’s photographs, I was puzzled by the relatively non-specific nature of the rest of the statements attributed to the unidentified source, except to think- prompted by apprehension of other industrial accidents in Talley’s group operations- he comprehended he had sustainable food safety and health and safety concerns arising from Talley’s Ashburton site’s operation, not shared by anyone else working there. TVNZ invited viewers to make up their own minds. Given that invitation – despite Mr Dallow’s introductory remarks that the whistleblower’s images “didn’t look good” as which Mr Meads would “ask the hard questions” of and “pull back the curtain” on Talley’s Ashburton operation, including by affording the whistleblower anonymity “for his protection” – I carried away in my head the broad impression TVNZ was not urging any particular conclusion.

I disagree

I can’t follow this reasoning. I think an ordinary viewer will be left with the clear impression that TVNZ is urging the conclusion that there are safety problems at Ashburton. I mean, otherwise: why run the story?

TVNZ is pushing this conclusion in all sorts of ways. The “exclusive investigation” (there’s something important to hear). The fact they’re leading the news with it. TVNZ’s introduction emphasising “another accident waiting to happen” and images that “don’t look good”. The phrase “whistleblower” (a source who is revealing secrets). The need to “protect” the whistleblower (from a vindictive corporate employer who doesn’t want the truth revealed). The secret photos, which “show a different side”, contrasted with the way Talley’s “presents” a “spotless image”). The whistleblower’s allegations: Talley’s lies, it doesn’t care about safety because people are easily replaceable, machines keep running if hands are trapped, it’s been there for months, everyone can see it, they just walk away. The source “shows” and “tells”; Talley’s “claims” and is challenged. Talley’s email to staff to shut them up. Talley’s guilty-looking last-minute reversal of its invitation to let TVNZ film in the factory. Its threats and arguments to try to bury the story.

Yes, the whistleblower’s allegations are a bit vague. But that just invites viewers to form a negative impression, led by the context (the photos, the allegation of harmful safety practices). The lack of specificity doesn’t seem puzzling to me because of that context. I don’t understand why the judge would think that the whistleblower had concerns that no-one else at the workplace shared. The whistleblower says “everyone knows”.

Yes, TVNZ showed some photos from Talley’s. But I think viewers would readily figure that it would be easy for Talley’s to quickly clean and fix some machines and take some snaps – I’m not saying that’s happened, just that ordinary viewers aren’t going to be convinced by them.

As for TVNZ’s mention of viewer’s making up their own minds, the judge’s reasoning put me in mind of the Fox News slogan: “We report, you decide”. Just saying it does not mean you don’t have an angle.

It’s as if the judge thinks the story went something like this:

We begin tonight with a story about Talley’s, one of the country’s biggest food producers. We found one guy who showed us some photos of dirty machines and made some vague allegations about unsafe practices, but Talley’s showed us photos of clean and safe machines and said it always fixed any safety problems when they came up. It’s a bit of a wash.

I want to be clear about what I’m saying here. I don’t think this means TVNZ’s story was bad. TVNZ seems have gone to quite some effort to provide balance and to ensure it was accurate and to make the story informative and engaging. But it was trying to raise the alarm about Talley’s. I think even TVNZ would be surprised at the meaning the judge came up with. I’m guessing it’s not the way, say, Thomas Mead would have described it at the pub afterwards. Or anyone else who saw it.

I’m also not saying that TVNZ’s allegations were unfounded. I’m saying that, under the law as I understand it, the story contained defamatory meanings about Talley’s. So I think TVNZ needed to provide evidence to the court to back them up – that is, make out a defence of truth. In fact, it seems that both parties provided oodles of evidence on that question. But the judge didn’t even need to look at it because he found that there was no defamatory meaning. I think that’s a shame. As I said at the beginning, I thought truth would be a key issue. I’d be willing to bet all the lawyers involved expected that too.

I won’t bore you by going into all the other articles and broadcasts, but the judge found that all but one of them did not contain defamatory meanings. And I could repeat this exercise with pretty much all of them. Eight other broadcasts and articles, all seriously critical of Talley’s, some based on whistleblowers, and the judge bowls them out one after another by finding they don’t have the pleaded defamatory meanings, without having to examine the evidence about whether they are true or responsibly prepared.

A rationale

If I try hard, I can – just barely – come up with something of a justification for the judge’s conclusions. It goes like this. The judge isn’t saying that TVNZ’s broadcasts didn’t have any defamatory meaning. Just that it didn’t have the defamatory meanings pleaded by Talley’s.

Now, my impression is that the meanings pleaded were not excessive or exaggerated. I thought that generally they fairly captured what was conveyed by the broadcasts. And that’s all you need.

But it is possible to argue that they were overegged, and it’s possible that’s what the judge had in mind. In other words, if Talley’s had said the broadcast meant “there is reasonable cause to believe that Talley’s disregards safety concerns at its Ashburton factory”, the judge might have upheld that meaning.

This is known in the business as a “tier 2” meaning. It is still defamatory. (You wouldn’t want a newspaper to report that there was reasonable cause to believe you’d committed murder, for example.) But it’s less defamatory. (It’s not as bad as the newspaper reporting you’d committed murder – a
“tier 1 meaning”). And tier 2 meanings are easier to defend. (The newspaper wouldn’t need to prove that you committed murder, just that there is some evidence that plausibly points to it – eg, someone matching your description was seen running from the murder scene). That’s why plaintiffs usually prefer tier 1 meanings. They are harder to defend.

On this analysis, Talley’s lawyers pleaded the wrong tier. There was enough in the broadcast supporting Talley’s that TVNZ could not be said to be making an outright allegation; it was instead just alleging there was evidence of safety violations.

This is getting into the weeds of defamation. I have to say, I’m generally fairly sympathetic to this sort of analysis. I think plaintiffs often plead meanings that are more absolute than the actual wording of the publication. But I admit that this practice (of pleading tier 1 meanings rather than tier 2 ones) is extremely common. It is particularly common in cases like this one, where there are many indications in the publication that push toward a particular conclusion. What’s more, judges routinely accept slightly overegged meanings. That is, when a publication contains a bit of balance, they are still prepared to find tier 1 meanings. And generally, I think that’s quite proper.

I think it would have been quite proper here.

[Added later: There’s something else that’s probably fair to point out. The judge refers to the difficulty judges face in having to work out what impression is left in the minds of ordinary viewers who watch the broadcast only once. After all, a judge may well end up watching the broadcast multiple times in the course of the trial, and pore over a transcript, and listen to the language in the broadcast being minutely dissected by lawyers and witnesses. Then the judge has to go back and try to imagine what it’s like hearing it fresh and only once.

The judge backs the idea of determining the meaning in advance of trial. I think this is a good idea!

I also think that perhaps some judges are better suited than others to determine what ordinary viewers might think.]

One meaning upheld

The judge did accept that one broadcast (and article) contained a defamatory meaning. He found TVNZ alleged that there were not enough emergency stop buttons on Talley’s machines, and Talley’s knew about this but didn’t fix it.

Truth

TVNZ pleaded truth. But the judge accepted Talley’s evidence that it had taken steps to address emergency stop buttons.

No more than minor harm

That left three other defences for TVNZ. One was that the broadcast had done “no more than minor harm” to Talley’s reputation. For reasons I don’t understand (but may have had to do with how the parties argued the case) the judge only focused on the harm to Talley’s reputation among current and prospective employees. TVNZ said Talley’s already had a bad reputation. It offered evidence of earlier incidents, including court cases. But the judge said TVNZ couldn’t show that those incidents were known to employees. So there was more than minor harm.

Likely pecuniary loss

But Talley’s also had to prove that it was likely to have lost money because of the defamatory broadcast. This is slightly different to the “more than minor harm” threshold. It’s a rule that only applies to plaintiffs that are corporations. Essentially, if you’re a natural person and you’re defamed, the law presumes you’ve suffered harm to your reputation, but if you’re a company, you have to prove that you’ve suffered financial loss.

Talley’s listed a whole lot of ways it claimed to have lost money: salaries of staff time spent responding to allegations and liaising with customers, etc; reduced staff morale and productivity; costs of expert and PR advice, investigations and audits; lost sales; damage to goodwill; increased recruitment costs; and more.

I think this is a vexed area of the law and I was interested to see what the judge would do with it. It’s vexed because there’s a case that says money spent by a company on damage control, including staff time, counts as financial loss. I think that’s a problem because every single firm that claims to have been defamed will be able to prove that it’s had to spend some money in the form of staff time dealing with the fallout. That reasoning eviscerates this special hurdle for corporations, which I think is designed to make them prove that the defamation has caused them to lose customers or contracts etc.

I’d be loathe to think that Talley’s could point to staff time spent dealing with PR, or even consultants brought in to deal with safety issues; or productivity losses due to staff morale. But even on my sceptical view of things, Talley’s claim to have lost sales, for example, is certainly about financial loss, though whether its evidence of sales loss and what’s caused it is sufficient is another question.

Talley’s provided a lot of evidence of financial loss, though it seems like it was all pretty general. Lots of staff time. PR advice. Difficulties in recruitment. (There’s nothing in the judge’s discussion about lost sales or contracts or goodwill).

The judge says he has “serious difficulties about the legitimacy as “pecuniary loss” of the marginal additional expenses claimed in terms of executive and management and some consultant time, when such expense is in any event to direct and manage Talley’s operation irrespective of measurement in terms of productivity and profitability”. And he doubts that money spent on safety can count. That strikes me as entirely sensible.

Then he says that Talley’s can’t point to any losses relating to recruitment, or any other losses, that can be specifically attributed to the one broadcast he’s found to be defamatory. There were broadcasts about Talley’s over three nights in a row, he says. How do you separate out the financial loss from the one that’s defamatory from the other two that might be causing harm because they were critical of Talley’s but were not defamatory?

On the one hand – fair point. On the other hand – how could a plaintiff ever do this?

The judge found lots of problems with the financial-loss claim, especially relating to recruitment. It was a tough employment market anyway. Covid had struck. Talley’s didn’t have records of its recruitment costs before and after the broadcast.

Anyway, the upshot is that, despite all the convincing evidence of money that Talley’s spent as a result of the broadcasts, the judge said it had not suffered provable financial loss in relation to the one defamatory broadcast. And that’s the end of the case.

I’m left wondering about the allegation that Talley’s lost sales. That feels like a good measure of whether its reputation had been harmed. What was that evidence? I guess it would still be very difficult to attribute to one particular broadcast though.

Responsible communication in the public interest

This was TVNZ’s final defence. The judge didn’t have to decide this. As I’ve said, he found only one broadcast defamatory and held that it had not been shown to cause financial loss. But he included a section on the responsible communication defence, and good on him for that.

But boy, is it strange.

There are two elements to a public interest defence. First, the story must be in the public interest. The one that the judge found was defamatory plainly was (the alleged lack of emergency stops at the Ashburton factory, remember), and the judge said so.

The big question is whether the story was responsibly prepared. As the judge noted early in the judgment, the Court of Appeal in Durie v Gardiner says this calls for an assessment of various factors, including:

(a) The seriousness of the allegation — the more serious the allegation, the
greater the degree of diligence to verify it.
(b) The degree of public importance.
(c) The urgency of the matter — did the public’s need to know require the
defendant to publish when it did, taking into account that news is often
a perishable commodity.
(d) The reliability of any source.
(e) Whether comment was sought from the plaintiff and accurately
reported — this was described in Torstar as a core factor because it
speaks to the essential sense of fairness the defence is intended to
promote. In most cases it is inherently unfair to publish defamatory
allegations of fact without giving the target an opportunity to respond.
Failure to do so also heightens the risk of inaccuracy. The target may
well be able to offer relevant information beyond bare denial.57
(f) The tone of the publication.
(g) The inclusion of defamatory statements which were not necessary to
communicate on the matter of public interest.

The judge had earlier noted that TVNZ had contacted Talley’s about the story, seeking a response to a set of criticisms that were in the broadcast – the lack of stop buttons and training about them, the failure to fix them after complaints. Then when Talley’s responded, TVNZ included a pretty fair summary of the response in the broadcast. That goes to para (e) above. It’s right at the heart of this defence. If you are a media organisation and don’t put your criticisms to someone and include their response, it’s going to be hard to say you’ve behaved responsibly. On the other hand, if you do, you’ve gone a very long way to ensuring this defence will apply.

So TVNZ looks to have a good argument that it has behaved responsibly. It can also say it has relied on two apparently well-placed sources, which goes to (d). It no doubt argued that the story was publicly important, its tone was measured, and it didn’t include extraneous information – factors (b), (f) and (g).

But the judge doesn’t directly consider any of the factors from Durie v Gardiner.

Instead, he looks at two of the broadcasting standards: Balance and Accuracy. Why? I don’t know. Perhaps because they provide guidance on what sort of conduct might be responsible when a broadcaster is airing a story. If so, one might have thought that the Fairness standard would also be relevant.

The judge quotes at length from the two standards and the BSA’s commentary on them. He refers to the views of TVNZ’s expert, Gavin Ellis. It’s fair to say that the Balance and Accuracy standards overlap to some degree with some of the Durie factors. But it seems odd to focus on them exclusively in this context.

The judge reiterates his finding that TVNZ broadcast an allegation that there were not enough emergency stop buttons on Talley’s machines, and Talley’s knew about this but didn’t fix it. He says the real sting here was the not-fixing-it. And he said this was TVNZ’s conclusion, not something that a source said. In other words, TVNZ didn’t have any source saying Talley’s had failed to fix the problem. That’s a factor pointing toward lack of responsibility in the preparation of the programme.

But I find this difficult to square with the evidence the judge describes. TVNZ’s journalist Thomas Mead gave evidence that a source told him “management at the Ashburton factory was slow to act on safety concerns. Issues were often raised repeatedly and left for long periods of time before being addressed… their main concern was around E-stops…there had been a lot of discussion about that issue but it had not been addressed.”

The judge also said “Evidence at trial included entries in Talley’s incident register of workers’ notification of issues relating to emergency stop buttons.”

TVNZ had also talked to a mechanical fitter who criticised the lack of E-stops and said Talley’s would be reluctant to shut down the whole line to fit them.

That sounds like… sources supporting the TVNZ allegations about the failures to fix known faults.

The judge also says “Mr Mead did not directly put to Talley’s the proposition that it ignored workers’ concerns about emergency stop buttons.”

Really? Here’s what Mead wrote to Talley’s, inviting a response, on the day of the broadcast: “Talley’s has been directly alerted to this risk [the problem of inadequate emergency stop buttons, and training about them] on multiple occasions but has chosen not to do anything about it.”

The judge said “TVNZ did not fairly present Talley’s response to the lesser allegations it raised with Talley’s before broadcast”. (I think this means the ones that said workers didn’t know how to find and use the buttons that were there.) He says that TVNZ also had statements from Talley’s that it would “continue looking” at the allegations “to ensure they were also adequately dealt with”, and that Talley’s thought the matter was best dealt with by “an independent and expert review.”

It’s true, Talley’s CEO had told Mead he was confident that Talley’s workers knew where emergency stop buttons were “in the areas they were trained”, and TVNZ did not broadcast this. But TVNZ did summarise Talley’s response, saying health and safety was of paramount importance and Talley’s would continually review their processes. It also reported that Talley’s had “launched its own investigation”.

It’s also true that Talley’s had not ignored the E-stop button issue. But it hadn’t told TVNZ about all the steps it had taken, so it’s hard to say it was irresponsible of TVNZ not to report it.

The judge concluded that it was “not a balanced, accurate or fair communication”. Not only does this strike me as the wrong test, it feels like the wrong conclusion.

But then, right at the end of his consideration of responsible communication, the judge changes direction. I’m just going to give you the final paragraph and let you make of it what you will.

However, noting the difference in my broad impression of each the 3 July 2021
broadcast and article, I have more closely reviewed both for the purpose of TVNZ’s
defence (no longer limiting myself to the broad impression I took away in my head
from either). In doing so, I noted there was a pause in the broadcast after Mr Mead
said “But at Talley’s it’s claimed the opposite happened” and before he continued
“Concerns about emergency stops ignored”. In the article, that pause is substituted by
the word “with”. Thus it is plain my impression the broadcast carried the conclusory
meaning I found was due to Mr Mead’s expression and emphasis, rather than to its
substance in characterising “ignored” as attributed to the unidentified source. In
retrospect, it was an impression obtained from an accident of phrasing or perhaps even
from when Mr Mead chose to take a breath. Accordingly, “ignored” not being TVNZ’s
own description of Talley’s conduct, the broadcast was not inaccurate, unbalanced or
unfair. Having regard for the “practical realities” of broadcast publication, I cannot
say Mr Mead’s expression and emphasis in the 3 July 2021 broadcast was
irresponsible. Had Talley’s proven TVNZ’s publication of the 3 July 2021 broadcast
caused it pecuniary loss, I would have upheld TVNZ’s defence of a responsible
communication on a matter of public interest, to dismiss Talley’s proceeding.

End note

I suspect this judgment will be appealed. One problem is that, because of the way the judge approached the case, particularly in his findings about meaning, there is no analysis of all the evidence relating to truth (or not) and responsible communication (or not) for almost all the broadcasts and articles sued over. So if my analysis above is anywhere in the ballpark, and an appeal is upheld, we’re probably looking at a new trial. Which seems very hard on both parties.

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Should I issue a correction?

December 18, 2025

So now I’ve heard from Virginia Nicholl of the NZ Alcohol and Beverages Council. She says that the 2-drink guideline is not official Canadian government policy, and refers me to this link and Eric Crampton’s analysis here.

This getting further into the weeds than I expected when I blogged about the overlap between the Media Council and the Broadcasting Standards Authority. And to be clear: this is not my field. But if this is right, it means that my speculation below is not (though the general issue about what the Media Council might do with late-coming information that shows a decision is wrong remains interesting).

So I don’t know what to think. But if this is something that’s keeping you awake at night, stay tuned. I’ll run it down.

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Should the Media Council issue a retraction?

December 17, 2025

Well, this is interesting.

After writing the post below, I was contacted by Andrew Galloway, the Executive Director of Alcohol Healthwatch. Guess what? He says the 2-drink guideline is in fact official Canadian policy. He refers to an email from a WHO-affiliated official who says the alcohol industry has been trying, unsuccessfully, to get the New York Times and other media outlets to change their stories for the same (wrong) reason. (I’m a NY Times subscriber, and my quick search suggests that the NY Times has reported as fact that the 2-drink guideline has been formally issued in a way that seems to represent the government’s position).

This was kind of the thrust of RNZ’s reporting in the first place, which was about alcohol industry lobbying tactics.

Mr Galloway says he managed to get Stuff to correct this, and also wrote to the Media Council. But the MC refused to revise its decision.

If Mr Galloway is right about this, it presents something of a problem for the MC, I think. On the one hand, Mr Galloway isn’t a party to the complaint. RNZ was entitled to put forward what evidence it liked. There’s no process that I’m aware of in the MC rules for revising a decision once it has been issued. And while Mr Galloway and his source seem authoritative, it’s possible I suppose that they’re wrong.

But.

Equally, I’m not aware of anything in the MC’s rules that would stop it reissuing its decision. Or taking steps to check this out. And what if the letter pointing out the new evidence came from Radio NZ? Would that have made any difference?

More problematic: RNZ is required to post a summary of the MC’s decision and link to it in its original story. It now looks like that might be … inaccurate. Well, it’s accurate to say the MC upheld the breach and explain why it did. But the MC is concerned with how readers will understand any particular story. And readers will understand it to mean that the 2-drink guideline isn’t official. In fact, that’s now what the RNZ story says:

The official guidance in Canada remains a maximum of 15 standard Canadian drinks per week for men and 10 for women.

Still, if someone were to complain to the MC about the RNZ story, or the correction of it, then the MC would be in a pickle. Likewise if someone mischievously complained about the Stuff article, which supposedly gets it right, on the basis that it must be wrong since the MC said so.

Luckily for the MC, the deadline for those complaints has passed. But if I were Alcohol Healthwatch, I’d be on the lookout for the next NZ media mention of the Canadian guidelines, and I’d bring a complaint whether that story got it right or not. (If it’s wrong, complain again based on the new evidence. If it’s right, complain that it’s inconsistent with the MC’s finding of fact.) If that happened, I’d buy some popcorn.

And if I were RNZ I might just be tempted to run another story, or update the earlier one, to provide an opportunity for such a complaint…

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Media regulation system breaking down?

December 16, 2025

It was bound to happen sooner or later.

Complaints are being made to both the Media Council and the Broadcasting Standards Authority about basically the same stories. And they’re reaching different conclusions.

How can this happen? Easily. Let’s say Radio NZ broadcasts a story or interview, then posts a text version of it, as it often does. The broadcast is subject to the BSA. The text story is subject to the MC.

So if you’re Ian Wishart, and you’re annoyed that RNZ has aired a story about how Hamilton’s run of hot weather “shattered the previous record” because there’s a newspaper story from 1935 suggesting a longer run of hotter weather back then… you can complain to the BSA that it’s inaccurate. And if RNZ posts a text version, you can complain that’s inaccurate too, this time to the MC.

Of course, that’s what happened. The MC upheld the complaint. The BSA rejected it.

This has happened three times that I’m aware of. The MC has upheld them all and the BSA rejected them.

In the Wishart case, the difference between the two isn’t as large as it sounds. Both the MC and the BSA said the stories were hedged enough – the expert being quoted said he was looking at a dataset that went back to the early 1990s. It was pretty clear he was giving an opinion. RNZ was entitled to rely on that and had used words like “probably” and “likely” to indicate uncertainty. The BSA agreed. But where RNZ had fallen down was the headline (“Hamilton’s run of hot days shattered previous record”), which was stated as fact. RNZ had changed it to “breaks previous record” after receiving Wishart’s complaint, but that wasn’t good enough.

Incidentally, the data collection in 1934-5 was at different locations and with different methodologies, so it’s not at all clear that RNZ’s source was wrong. And the MC has previously held that it’s fine for headlines to contain a degree of exaggeration. So I’m not sure this was the right call. But reasonable people can disagree. Anyway, the BSA didn’t have to deal with a headline, and the introduction to the segment contained the word “likely”.

But the other two decisions really do show a difference in approach to accuracy, I think.

In one, the Brewers Association complained about an RNZ story called “Outdated alcohol guidelines understate health risks, Ministry documents reveal”. It said that the UK, Australia and Canada had all updated their drinking advice, “resulting in much lower recommended drinking limits” according to a Health NZ document. NZ’s guidelines say that low-risk drinking behaviour is up to 15 drinks a week for men, 10 for women. The article said the equivalent guidance is set, for men and women, at 2 in Canada, 10 in Australia and 14 in the UK.

HNZ started reviewing our guidance last year, RNZ reported, but then stopped after contact from the Brewers Association.

The problem is complicated and I won’t go into details. But it seems that a Canadian government advisory body had come up with, and published, the 2-drink recommendation, but it hadn’t been adopted as the official Canadian position, which was, like ours, 15 and 10 drinks. Treating the 2-drink recommendation as official advice was an error that was also made by the BBC and the NY Times, as well as our own health officials. The MC found it was a significant inaccuracy. The BSA found that it wasn’t material given that the story was really about whether the guidelines reflected modern scientific evidence about the risks. The BSA tends to ask, in cases like this, “does the mistake significantly affect listeners’ understanding of the programme?”. They said it didn’t.

Reasonable minds etc.

It’s worth pondering whether the fact that the BSA always engages with the right to freedom of expression in the Bill of Rights might be having some effect on line calls like this one. It’s striking that the BSA only upholds 5-6% of complaints, while the MC upholds at least twice that, and often more.

The third case was about video games and gambling habits. RNZ aired an expert from the Problem Gambing Foundation saying that “a lot of countries have banned loot boxes” in video games – objects that allow players to receive a random item, such as a weapon, sometimes after paying for them with real money. The problem, she said, was the intermittent reward – you only get what you want sometimes, so you keep trying. It’s powerfully addictive.

In fact, according to the complainant, only one country (Belgium) has banned loot boxes. Other countries have regulated them to some degree, but not banned them.

The MC found this to be inaccurate, and said (as with the other two complaints) that RNZ didn’t fix it fast enough. It said RNZ is generally entitled to rely on experts and this “won’t necessarily breach Council principles”. But it meant RNZ “took a risk”. (Uh, this is a risk it takes every time it interviews someone with specialist knowledge, which is basically all the time). It said someone writing up a story after an interview has an opportunity to check these things.

All of them? Maybe not. “While it might be reasonable for RNZ to have relied on expert comment in the first instance, once challenged, RNZ had an obligation to promptly investigate and publish any necessary corrections or clarifications.” (My italics).

This is not a model of clarity. So RNZ can sometimes rely on experts, but other times it will breach Council principles. It will sometimes have to check out what the expert said before writing it up, but other times, maybe not. But it will be a breach if RNZ doesn’t respond sufficiently promptly to a complaint that alerts it to a potential error.

For what it’s worth, that last point seems bang on to me. But this is a breach of the Corrections principle, not the Accuracy principle. But the MC upheld both. Why was it inaccurate, given that RNZ relied on an expert? Maybe it was breach from the outset because RNZ didn’t check it out before writing up the interview. Maybe it was only a breach after the complainant raised it. Dunno. But the former seems a bit unfair on Radio NZ given that the error was neither obvious nor all that significant. And the second seems a breach of the Corrections principle not the Accuracy one. Or… did it start off as not-inaccurate, and become inaccurate after RNZ was warned about it? That seems a bit weird, but perhaps justifiable – the circumstances for upholding an accuracy complaint did not come together until RNZ had reason to check it out, and then left it up.

What about the BSA? Not upheld. The mistake wasn’t material. It didn’t significantly affect listeners’ understanding of the story. The story was about a school programme to tackle problem gambling, not about banning loot boxes. The bit about loot boxes was peripheral and fleeting.

RNZ had tried to make the same argument to the MC – the mistake wasn’t “central to the story.” The MC said this is not relevant because publications have to be accurate “at all times.” I’m not sure that’s right. The MC has previously held that it’s only “material” errors that warrant upholding the complaint. The MC has often dismissed minor errors “that may not go to the heart of the story”. But you can still argue about whether the error was in fact material.

When I first read these decisions, I was inclined to applaud the robustness of the MC approach. But as I write them up I find I’m more convinced by the BSA’s decisions. (Though in general, I’m still inclined to think the BSA finds too many ways around upholding complaints relating to Accuracy and Balance).

Bottom line, though: it’s fairly clear that the MC and BSA take slightly different approaches to what are effectively identical stories. Both apply standards requiring accuracy but the MC is more likely to uphold complaints that the BSA sees as minor. This does not seem ideal in a regulatory system where complaints against exactly the same stories can go to both bodies.

The government’s latest recommendation about regulating a converging media (essentially self-regulation with a statutory appeal body, for “professional media” including things like Netflix and The Platform but excluding social media) seems like a pretty sensible reform to me.

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BSA is still right

October 21, 2025

This is PS to the post below.

I’ve now read what Judge Harvey and Liam Hehir have to say about this (and have had a chance to debate Judge Harvey on The Platform). I have to accept that the issue is not as clear-cut as I’ve suggested. But neither is it as clear-cut as they say it is. I still think the better argument is that the BSA has jurisdiction.

So I’m going to add a few more comments.

Provisional decision – prejudgment?

First up, there has been criticism, particularly from Judge Harvey and Sean Plunket, about the process the BSA has followed. They say that by issuing a “provisional interlocutory decision” about jurisdiction, the BSA has prejudged it. (“Interlocutory” just means a step taken in a dispute before the final argument and decision about the substance). They have a point.

But there’s another way of looking at it. The BSA twigged to this issue years ago, and did some work on it. They produced a memo and sent it to broadcasters in 2019. (The Platform and Reality Check Radio weren’t around then). The memo said they thought live-streaming internet broadcasts were included, but no such complaints had been raised, and if there was one, they’d give the broadcaster a chance to argue the toss before they made a final call.

The BSA’s provisional decision is, as you’d expect, very much in line with that memo. Had the BSA simply written to The Platform and said, “We’ve had a complaint about you. We can see there’s an issue about jurisdiction. We’d like your submissions. Oh, and we attach a memo we did in 2019 which you might like to address as part of your response” – then it would be hard to see how that was inappropriate.

What the BSA actually did was not so far from that. And as a general matter, some judges are willing to share their preliminary thinking with the lawyers arguing the case, and that’s invariably helpful. It’s good to know what you’re up against.

In fact, had the BSA not alerted The Platform to its earlier research, it could have been criticised for failing to do so. Imagine if it had just written to the parties seeking submissions and then reached a decision about jurisdiction that was in line with its earlier memo without telling The Platform about it. What’s more, the BSA would not have had the benefit of more direct engagement with its preliminary views.

Still. The process was not ideal.

On the other hand, it’s not impossible that the BSA, after hearing full argument, will reverse its provisional decision and hold that it does not have jurisdiction. That would also be entirely in accordance with the process it’s following.

Still, if you’re worried about constitutional propriety, it’s also very poor form, to say the least, for the PM and other Ministers to suggest that the BSA, a quasi-judicial authority, is unlawfully overreaching its powers. That seems to run against the spirit of the Cabinet Manual. If the BSA does reverse itself, we’re going to be left wondering whether it was political pressure that made them do it. Even if that’s not true, it’s not healthy.

What about the issue of jurisdiction itself?

Let’s put this in context. If The Platform and any other internet-based TV or radio platform are not subject to the Broadcasting Act, then they are not subject to broadcasting standards, and could do the following things:

These are all based on real cases. In most of these situations, those harmed couldn’t simply use other laws instead, even if they could afford them. I’m not saying The Platform would do all these things. But I am saying that broadcasters have done them, and been held accountable through broadcasting standards which would not apply to internet broadcasters, on the theory that they’re not covered by the Act.

That’s my point about the purpose of the Broadcasting Act. In resolving issues of interpretation, judges ask themselves whether the purpose of the law is clear (say, from a statement in the Act that says its purpose is “to provide for the maintenance of programme standards in broadcasting in New Zealand“) and then interpret any ambiguity so as to fulfill that purpose rather than frustrate it.

A more literal approach

That’s not the only approach to interpretation taken by judges. Judge Harvey focuses on a more literal and technical approach. He points out that the definition of broadcasting is about transmission by “radio waves or other means of telecommunication”. He says telecommunication is about a particular infrastructure set up by broadcasters. It doesn’t include the transmission via the internet, which occurs though a network, via protocols, none of which are set up by broadcasters. That’s what Parliament had in mind, and that’s what they described, and it doesn’t include internet radio. “Just because it looks like a duck, and quacks like a duck, that doesn’t mean it is a duck,” he says.

It’s a reasonable argument. It can be supported by reference to the right to freedom of expression in the Bill of Rights Act, which says ambiguous laws should be interpreted consistently with the right to free speech where possible and being subject to a complaints regime is definitely a restriction on your freedom of speech, although it’s a bit hysterical to describe it as “censorship”. I think the only programme the BSA has ever ordered off air is the Mighty Morphin Power Rangers, on the grounds that it taught kids that violence was the best response to their problems.

A court might decide that Judge Harvey’s approach is right. I think there might also be an argument that it’s odd to call a computer a “broadcasting receiving apparatus” and that the proper meaning of that phrase is a bespoke TV or radio set.

The comeback

My response is that, if it looks like a duck, and quacks like a duck, it’s probably just another breed of duck that we didn’t know about before, and we should treat it the same.

I think “transmission of programmes” is a broad concept. Programmes are defined as sounds or visual images intended to inform, enlighten, entertain or promote someone’s product or interests. That’s… also broad. The phase “by means of radio waves or other means of telecommunication” seems to recognise that traditional broadcasts are only one way of transmitting programmes, and Parliament was contemplating others that might not be in existence yet. It’s allowed to do that! I don’t think “telecommunication” (also broad!) needs to be tied down to infrastructure the way Judge Harvey would.

It’s not uncommon for a law to apply to things or circumstances that weren’t around when the law was passed, as long as they can properly be said to fit within it. In fact, as the BSA has pointed out, there’s another law that orders judges to do that. For example, if a law says that vehicles have to travel on the left hand side of the road, and at the time it was passed, there were only diesel vehicles, then that law would also cover petrol vehicles after they came to be invented. Even though, when the law was passed, no-one had a clue that such a thing might come to exist.

The comeback to the comeback

Judge Harvey (and others) make another argument, and quite a good one. It’s based on another principle of statutory interpretation (are you starting to get the feeling that this statutory interpretation gig is a bit more complicated than you thought? Different approaches to interpretation can point toward different results. Welcome to Laws 101!)

This principle says that judges faced with ambiguous wording in a statute should avoid the meaning that leads to absurd, unfair, oppressive, etc results. So Judge Harvey says, wouldn’t it be ridiculous if I set up a livestream at my workplace and made it publicly accessible – and was then subject to a whole complaints regime! Liam Hehir makes a similar point. Are publicly accessible Zoom meetings all broadcasts subject to the complaints regime?

I tip my hat to this argument. In some ways, it’s the flip-side to my “wouldn’t it be ridiculous if an internet broadcaster, doing news and talkback the same as traditional broadcasters, with a similar audience size, and possibly doing the same harms, wasn’t subject to the same standards regime?”

And yet.

The comeback to the comeback to the comeback

One response is that these might not be “programmes”.

Another is that there are lots of small broadcasters, such as radio stations targeted at particular ethnic groups, who are subject to the regime.

Another is that even a Zoom call or workplace livestream could attract a large audience and start doing the sorts of harms that traditional broadcasters do.

One or more of those responses might work. But I’m not at all sure about that. I’m inclined to think that those sorts of transmissions don’t fall within the scope of what Parliament thought it was doing, even at a conceptual level. I also think such an interpretation would breach the Bill of Rights Act.

So that seems to be a big problem – two big problems – for my argument. The heat’s on me to explain why they don’t sink it.

The Bill of Rights Act

I’ve said Bill of Rights protects freedom of expression. The BSA hears complaints against broadcasters’ speech, and sometimes upholds them. It can order broadcasters to air a corrective statement. That’s a direct infringement of the broadcaster’s right to decide what to broadcast. It can (effectively) fine them. That’s a punishment for speech. It can simply uphold the complaint and publish its decision. That also restricts speech by setting boundaries on what can and can’t be said. It can order them off-air for up to 24 hours (though it’s only done that once as far as I know). That obviously restricts speech.

But the right to free speech, even under the Bill of Rights Act, is not absolute. The Bill of Rights permits restrictions that are reasonable, prescribed by law, and are demonstrably justified in a free and democratic society. That’s why we can have laws regulating defamation and advertising and trade secrets and porn.

A court would almost certainly say that our broadcasting standards regime – as it applies to traditional broadcasters – is a demonstrably justified restriction on broadcasters’ speech.

I think it’s a small step to say that applying that regime to internet broadcasters who are performing virtually exactly the same activities, with the same potential harms, to similar public audiences, is also demonstrably justified.

But is it demonstrably justified to apply that regime to the livestream of work, or to a Zoom call? I don’t think so.

But I think the courts could readily get around this. I think the courts can say that The Platform is broadcasting, but the Zoom call isn’t. I think they will interpret the definition of broadcasting so that it doesn’t apply to those small-fry things. They will add a gloss that says the definition only applies, say, to broadcasters that reach substantial public audiences, or who are conducting commercial activities, or are in a position to do significant harm to the standards the Act is designed to protect, or to broadcasts that are the primary activity of the person doing the broadcasting.

That’s not in the language of the definition of broadcasting. But courts do that sometimes. I think it’s a fair argument that such a reading-down is in keeping with the context and purpose of the Broadcasting Act. It would avoid an overly expansive interpretation. It would solve the problems of purpose and free speech set out above.

So… aren’t I saying that courts won’t or shouldn’t read in Judge Harvey’s notion of telecommunication infrastructure, but they can and should read in my gloss that weeds out small, private transmissions that would otherwise be caught? Yes I am. I think mine is in keeping with the purpose of the Act, and addresses the problem of leaving significant internet broadcasters unregulated, and is a demonstrably justified restriction. (Of course, Judge Harvey’s is also demonstrably justified under the Bill of Rights, as it creates no restriction on the speech of internet telecommunications).

Levies

Sean Plunket has noted that he’s never been approached by the BSA to pay levies. In fact, the Broadcasting Act doesn’t make that the BSA’s job. It’s the job of broadcasters subject to the Act to provide a return setting out their revenue so the BSA can calculate the levy. (That levy is about $250 per half a million dollars of revenue, so I doubt it would be very high).

Actually, it’s an offence for The Platform not to submit such a return. But under the prosecution guidelines, I’m confident that no-one will be interested in prosecuting in these circumstances.

Still, there’s an argument (another principle of statutory interpretation!) pointed out to me by Graeme Edgeler that, when a statute is ambiguous, the courts usually won’t adopt an interpretation that creates unexpected criminal liability. Stack that one up beside Judge Harvey’s argument.

There’s more to say, but that’s plenty, I think.

I was wrong to say below that the counter-argument is bollocks. It’s clearly arguable. But I still think the BSA’s provisional view is right.

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The Broadcasting Standards Authority is right

October 16, 2025

The BSA has agreed to consider a complaint against internet-based radio station The Platform. This has triggered a cascade of tizzies from Sean Plunket, Winston Peters, David Seymour, the Free Speech Union, David Farrar, and others. Plunket called the complainant an ignorant “plonker”. Peters accused the BSA of “acting like some Soviet era Stasi”. Farrar says they should resign. Plunket says the BSA might “take and investigate complaints on anyone who puts anything on the internet.”

Bollocks.

The BSA is just doing its job. The Broadcasting Act regulates broadcasters. Here’s the definition:

broadcasting means 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

That’s a bit technical, but seems clearly to include an internet-based station that livestreams to a large audience. It does not include podcasters that require downloads. It doesn’t include videos posted on YouTube for download. It doesn’t include anyone on the internet who’s not livestreaming to a public audience.

As a matter of policy, The Platform is effectively a radio station. It bills itself as an “independent media organisation focussed on developing open and reasoned exchange”. It fits entirely within the legislative purpose of the Broadcasting Act. It’s conducting the same functions, serving the same good, and creating the same potential harms as NewsTalk. Why wouldn’t it be subject to the same standards – like accuracy, fairness, and privacy?

Bear in mind that the BSA’s oversight of talkback radio is extraordinarily light-touch. It rarely upholds a talkback complaint. The balance standard effectively does not apply to talkback. The BSA doesn’t apply the accuracy standard to people who call in and seldom applies it to hosts. The BSA is happy to interpret most of what goes on there as opinion or analysis. Talkback gets a lot of leeway under the fairness standard. It’s almost impossible for a public figure to bring a talkback complaint, for example. On top of that, the BSA has to consider the effect of the right to freedom of expression in the Bill of Rights Act whenever it contemplates upholding a complaint. Overall, its uphold rate in recent years is only about 6% of all complaints (not just talkback). Its standard punitive powers (usually, just publishing a decision upholding the complaint, sometimes ordering the broadcast of a corrective statement) are not a major incursion into free speech.

It’s true that internet radio wasn’t around when the Broadcasting Act was passed. But the definition of broadcasting isn’t restricted to old-style formats.

I was aware of the BSA’s view about internet radio, which they didn’t try to hide. They had considered in advance what they might do if someone complained about an internet station. You’d think that was sensible. They’d looked at the definition and reached the obvious conclusion. They said if and when the situation occurred they’d give the broadcaster a chance to make submissions about whether they should hear the complaint. I assume that’s what’s happened.

This isn’t a power-grab. It’s limited to livestreams to general audiences, and it’s what the BSA is required to do under the Broadcasting Act.

I can’t see any reason why the BSA’s general Codebook wouldn’t apply to The Platform. But the BSA is going out of its way to be fair to The Platform, which didn’t have any say (as other broadcasters did) in the development of the standards in the Codebook. So it’s only applying the standards specifically set out in the Broadcasting Act, which include taste and decency. Weird, yes. The Act lists a series of standards that broadcasters have to adhere to – taste and decency, privacy, balance, law and order – and then says the BSA can develop other standards and put them in a code (which they’ve done – adding accuracy, fairness and children’s interests, for example).

For what it’s worth, I doubt that Sean Plunket calling tikanga “mumbo jumbo” in the context of a political critique in a radio programme with a philosophy that is well known to listeners will be found to breach standards of taste and decency.

Still, I guess it’s time now to develop a codebook that applies to internet broadcasters. (Are you paying attention, Reality Check Radio?) My guess is that it will be much the same as the existing Codebook.

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