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BSA PS

May 7, 2026

Just a reminder of what’s at stake here. As I wrote earlier this year:

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.

Oh, and when you hear people crowing about what a massive victory for free speech this is, bear this in mind too. Although there was a technical argument about whether the BSA had jurisdiction over live-streaming internet broadcasters, which stemmed in part from some antiquated language in the 1989 statute, there was no doubt at all that subjecting The Platform to standards regulation like other broadcasters would not have been regarded as a breach of the right to freedom of expression in the Bill of Rights Act.

Here’s Paul Goldsmith in Stuff from October last year:

Online radio stations and video news shows could soon be regulated in the same way as terrestrial broadcasters currently are.

Media and Communications Minister Paul Goldsmith said the likes of The Platform, Reality Check Radio, and Herald Now are currently not covered by the Broadcasting Standards Authority (BSA), even though some competitors are.

“It’s not obvious to me why one group of people who are broadcasting in a very similar way should be subject to the BSA and another group shouldn’t be,” he said.

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BSA to go

May 6, 2026

So the government has decided to abolish the BSA. Various people are crowing about it. They are pointing to the BSA’s decision to hear a complaint against internet broadcaster The Platform. ACT says this was an attempt to “police the internet… to stretch a law written for rabbit-ear TVs over podcasts and livestreams”.

It’s hard to know whether this is deliberately misleading scaremongering or just garden variety ignorance. But of course, the BSA decision had nothing to do with podcasts, or in fact any part of the internet that was not a live-streaming New Zealand broadcaster. That seems to be a category of one… The Platform. Which, of course, was doing exactly what other broadcasters were doing, minus only the discipline that broadcasting standards might have brought to … I don’t know, a decision to phone someone up and put them on air without telling them.

But you can read my take on the BSA’s decision below (short version: I think their interpretation of the law requiring them to hear the complaint was correct and would likely have been upheld by the High Court).

But for now, what should we make of the government’s decision?

First thing: it’s not clear to me whether this will be passed by the election. I’m inclined to think it shouldn’t be, in part to give time for proper debate, and in part because it would make sense to make this an election issue. Also, they have jurisdiction to hear complaints about the falsity of election advertisements.

Let’s say they do pass it, under urgency I imagine. I still have questions. Apparently the Media Council is supposed to just pick up the slack here. How do they feel about this? Another hundred plus complaints a year? Where will they get the resources? The members are volunteers. They have one staff member. There’s no government funding.

Might they need to tweak the standards so that they work for broadcasters too? And why would you choose them to do this? The members of the Media Council are members of the public, a judge, and print media types. What do they know about broadcasting?

Another thing: will the broadcasters join? It’s not mandatory. The Platform isn’t a member.

Also, guess who’s more likely to uphold a complaint? Hint: it’s not the BSA. At present, the Media Council is two or three times more likely to uphold any given complaint than the BSA.

That’s partly because (irony alert) the BSA takes the right to freedom of expression under the NZ Bill of Rights Act very seriously. The Media Council … not so much. At least, they barely mention it (though the media’s right to freedom of expression is part of its Statement of Principles). They have no process to follow to ensure that any upheld complaint amounts only to a proportionate restriction on free speech. They are in a legal grey area where they are not part of the government, but are performing government-like functions. Does the Bill of Rights even apply to them? (I think it does, but I’m not sure the Media Council agrees).

The BSA’s jurisprudence provides a pretty clear set of guidelines for what can be broadcast and what shouldn’t be. The Media Council’s Statement of Principles is much more vague, and its decisions (which are generally good!) are wafflier. It’s harder to extract useful guidance from them.

There’s no appeal from a Media Council decision.

It’s possible that this will produce other unwelcome consequences too. If you are treated unfairly by a broadcaster (including The Platform), your first instinct might be to go to a complaints body. But if there isn’t one, your only alternative might be to sue. There will not always be a remedy (there isn’t a general law requiring fairness, for example) but defamation might often be available. (I have often advised clients thinking of defamation to consider the BSA or Media Council instead).

One defamation case is likely to cost a media defendant far more than the sum total of all the annual costs of handling BSA cases.

That’s also bad for another reason. Not many people have the wherewithal to bring a lawsuit. So many of the breaches will just go unaddressed.

What is likely to happen, I expect, is that a non-member broadcaster will do something terrible and it will be a scandal that there’s no standards regime and the government will have to reinvent one.

PS

Oh, for God’s sake. The Free Speech Union is calling on the Minister to “direct the Authority to drop those cases [three live complaints against The Platform] immediately. The process cannot keep being the punishment for a power that’s about to be removed.”

The Minister can’t do that. Read Fitzgerald v Muldoon. “The process” in fact must keep going until Parliament removes it. It’s called the Rule of Law.

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Attempt to de-Platform the BSA fails

April 1, 2026

The BSA has ruled that it has jurisdiction to receive complaints against the online media company, The Platform. “Using an unduly technical interpretation to exclude online broadcasters would create a significant gap in the protections available to New Zealanders”, it wrote. “We consider the standards regime logically, and appropriately, includes online broadcasters such as The Platform.”

Read the decision. It’s an orthodox exercise in statutory interpretation. I think it’s right. You might disagree with the conclusion (there are some quite good arguments both ways) but you’d have to be pretty unhinged to describe it as, say, “bordering on fascist“.

This ruling presumably applies to Reality Check Radio too (it was invited to make submissions, and did so), but I’m not sure it goes any further. UPDATE: I gather that Reality Check Radio is purely a download model. That means that this decision does not apply to it.

The BSA is at pains to note that its decision “solely concerns the Act’s application to a New Zealand entity which (a) during its hours of operation is streaming online, in a linear form (ie playing continuously), content readily accessible to the New Zealand public via any smart phone, smart television, computer or other internet connected telecommunications device, [and] (b) is a company, holding itself out as a media outlet… and deriving revenue from its operations, including via advertising.”

So, no Zoom calls. No individual streaming their own workplace. No ad hoc content sharing. No Netflix, Apply TV, Prime, Disney Plus, You Tube and similar systems generally likely to be covered by the on-demand exception (though it seems the door is still open for argument about, say, live streaming over YouTube).

Sean Plunket famously described the man who made the complaint as a “plonker” for not knowing that The Platform was not subject to the BSA’s jurisdiction. He may have been overly hasty.

I would not be surprised to see an appeal to the High Court. My money’s on the High Court – that well-known hotbed of fascist activists – upholding this decision.

PS

Oh, for God’s sake. The Free Speech Union is calling on the Minister to “direct the Authority to drop those cases [three live complaints against The Platform] immediately. The process cannot keep being the punishment for a power that’s about to be removed.”

The Minister can’t do that. Read Fitzgerald v Muldoon. “The process” in fact must keep going until Parliament removes it. It’s called the Rule of Law.

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Batchelor losing party

March 25, 2026

Julian Batchelor has lost his defamation lawsuit against TVNZ and former Disinformation Project director of research Dr Sanjana Hattotuwa. They’d accused him in an online article of racist rhetoric, inciting hate and real-world harm.

Batchelor says this struck at his character and integrity, and that he didn’t believe or claim that Maaori are racially inferior.

He had quite a bit to say about character, in fact. When asked about it in cross examination, he said:

Batchelor: Character is a cluster of deep internal characteristics that people hold which helps them to succeed in or fail in life if they don’t have them and I’ll name a few of them, things like integrity, perseverance, ability to handle failure, ability to be self-disciplined, honesty, the ability to work hard when things are very hard, the ability to discipline oneself and study or work, generosity, altruism, showing kindness and love to people who can’t give you anything in return. Those are some of the characteristics of a person with great character and the more you have of those the more likely you are to succeed in life and the less you have of them the less you are going to be predicted as being a success and it doesn’t apply just to Māori, it applies to every cultural group on the earth. If you are a human being and if you have character you will succeed, if you don’t you won’t.

QUESTION: And you’re saying on your definition of that that this particular race lacks character?
Batchelor: Correct.
QUESTION: All right, but you say that’s not racist on your definition of the word racism?
Batchelor: Correct.

Um.

The judge held that it was true to say that Mr Batchelor uses racist rhetoric. He also held that TVNZ and Dr Hattotuwa were protected by defences of honest opinion and responsible communication in the public interest.

Mr Batchelor’s lawyer warned that treating Mr Batchelor’s views as “racist” “sets a precedent that criminalises political opposition”.

Now, no doubt much of what Mr Batchelor says about Treaty principles and co-governance can be regarded as political speech. But let’s get a grip here. This case was an attempt to punish and thereby deter someone’s speech. But it wasn’t Mr Batchelor’s. Mr Batchelor (and, one has to assume, the man who bankrolled his case, Jim Grenon) was trying to use the law to attack the free speech of Mr Batchelor’s critics. He wasn’t being punished for being a racist, and in fact there’s no law specifically against that. All the court held was that it wasn’t unlawful to call him out.

Of note for defamation trainspotters:

— here’s a case where the judge found the article was both factually true and conveyed as an opinion. This has always been at least theoretically possible – the evidence for some opinions can be so clear that they are defensible as true. But it’s pretty rare.

— Despite TVNZ’s inclusion of Mr Batchelor’s denial, the judge still held that the story accused him of harmful and racist rhetoric. TVNZ argued that, taken as a whole, the article really only meant that there were reasonable grounds to believe his rhetoric was racist. This is a different meaning and not so defamatory. (It’s also easier to prove as true). The judge didn’t buy it, perhaps because of TVNZ’s perfunctory summary of Mr Batchelor’s denial. This is the opposite approach to that taken by Jagose J in the Talley’s case, where (I thought) the judge focused on a whiff of balance included in the story and used it to conclude that the allegations weren’t there at all.

— This is another case where an expert in journalism was used to try to show that the programme was unethical and irresponsible. Here, Peter Williams described it as a “hit piece”. The judge put little weight on his evidence, which also happened to Bill Ralston in the Cato case. (Here, the judge said Mr Williams’ evidence was premised on some claims by Mr Batchelor that the judge found were wrong).

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Talley’s source of contention

February 10, 2026

An overlooked part of Talley’s Group’s defamation case against TVNZ is its attempt to get TVNZ to disclose its confidential sources. It applied to court to make TVNZ give them up.

This was a real test of our journalist source protection regime. In the two leading cases up to now, the courts had (effectively) refused to protect journalists’ promises of confidentiality. (I use the word “journalists” loosely; one was Cameron Slater, which may help explain why his claim to protect sources failed. The other, though, was John Campbell, who was trying to protect the identity of one of the Waiouru army base medal thieves).

Talley’s was after the identities of people TVNZ described as whistleblowers, some of whom were still working for Talley’s. They had made serious allegations about the inadequacy of safety protections for workers at Talley’s factories.

In litigation, the parties have to exchange relevant documents. Talley’s complained that TVNZ had withheld 145 documents that showed how it prepared its programmes. “Consequently,” said the judge, “there are virtually no contemporaneous documents to challenge what TVNZ chose to record.”

TVNZ was claiming a public interest defence, which meant that it had to show it behaved responsibly. How could Talley’s contest that if it didn’t have access to documents showing how TVNZ dealt with its key sources, and whether those people might be unreliable or malicious?

For its part, TVNZ admitted it had been “very conservative” in choosing which documents to keep back. After all, Talley’s had lots of information about its own staff and might well be able to piece together information and work out who the informants were. Talley’s thought this unfair and self-serving. But Justice Andrew accepted it was appropriate. Interestingly, he said he could have ordered TVNZ to deliver up the documents so he could decide for himself whether they should be withheld. But he didn’t think it was necessary here.

The case is helpful in bedding down the importance of source protection. In particular, the judge cites a few foreign decisions that say, in summary:

The greater the legitimate public interest in the information, the greater the importance of protecting the source. If the purpose of the disclosure is to bring wrongdoing to public notice, the Court have held that it will deserve a higher degree of protection.… especially as they approach a category of source that is akin to an informer.

The judge said repeatedly that source protection is vital to the proper functioning of a liberal democracy. The flow of significant information hinges on “trust in the integrity of journalists’ promises, and their ability to keep them”. (I can’t resist pointing out that, to truly display integrity, journalists would have to let their sources know that their promises might be overruled by a judge, but I suspect journalists tend not to have that conversation).

The judge accepted that not knowing the sources’ identities would hamper Talley’s in its arguments. He said there was a “very direct connection” between those sources and the defamatory allegations. He noted that diligent verification is at the heart of the responsible communication/public interest defence, and that’s hard for a plaintiff to attack when it doesn’t know the sources. The judge admitted that the sources might be malicious, which should have put the heat on TVNZ to check their allegations more carefully. But how does Talley’s get at that?

But the judge said these concerns should not be overstated. The onus is on TVNZ to prove its responsible conduct, and TVNZ too may be hampered by not being able to call its sources. (I didn’t see the trial, but I’m guessing that TVNZ’s evidence was that the confidential sources all seemed extremely genuine and had close and direct experience with what was happening in the factories; that TVNZ questioned them hard, and that their stories seemed to stand up. I don’t want to be too cynical about this. But that sort of evidence is predictable and very hard to challenge.)

The judge said that TVNZ displayed its responsibility in a variety of ways that were open to challenge: it obtained documents, including photographs; it interviewed safety experts and people with knowledge of Talley’s health and safety practices; it provided viewers with some information about the whistleblowers, such as where they worked; it gave Talley’s the opportunity to respond. That’s surely right. There must be lots of room there for plaintiffs to argue that TVNZ could have done that better or differently.

I won’t go into all the statutory factors the judge considered. Suffice to say, they seemed to lead the judge to ask just the right questions – What are the issues in the case? How relevant is the identity of the whistleblowers to resolving those issues? Would the whistleblowers suffer harm if their identities were revealed? (On that one: yes, said the judge, and not just because Talley’s might retaliate against them. They might also suffer socially for being revealed as narks!) How important is the information provided by the sources? Are other sources likely to be deterred from coming forward with important information in future if they are revealed? I think this is a credit to the designers of our source protection law. Take a bow, Law Commission!

The judges themselves have fleshed the law out in sensible ways. This decision, and that of Assoc. Judge Sussock in Christian v NZME in 2020 (which also upheld source protection after a thoughtful analysis), show that we’ve got a pretty robust and effective source protection regime that seems well adapted to getting the balance right.

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A note about data breaches

February 9, 2026

It’s becoming a regular thing to see hackers get hold of reams of private data and threaten to leak it. (See recently: Manage My Health and Neighbourly leaks. And in recent years: Commerce Commission and Te Whata Ora.)

Courts readily grant injunctions to prevent the disclosure of such purloined information, usually on the basis of breach of confidence; sometimes privacy or copyright or a combination of these. It’s not hard to make the case that the information is confidential and the leak unauthorised. Most agencies don’t need to prove any detriment to anyone, though it’s usually obvious. There’s rarely any public interest to factor in. And injunctions against unidentified defendants are readily available now.

A couple of points though. First, you have to wonder about the utility of such orders. Criminals gonna do crime, you know? If you are resourceful, brazen and immoral enough to steal wads of private data, you’re hardly going to quaver at a court injunction. But I guess the agencies have to be seen to be doing something.

My other point is more technical. I don’t have a problem with these injunctions. But the courts routinely apply tests that are outdated, I think. They apply a general test for injunctions that asks, Is there a serious question to be tried, who does the “balance of convenience” favour, and where does the “overall justice” lie? But in the Fahey case in 1999, the Court of Appeal has said: “Any prior restraint of freedom of expression requires passing a much higher threshold than the arguable case standard.”

That case is never cited in these data cases. (To be fair, they usually involve everyone scrambling to put together evidence and submissions in a day or two. I guess it’s also easy to overlook the free speech rights of hackers who’ve ripped off sensitive data). But these cases are about free speech. That is what is being restrained, nothing else.

When privacy is alleged, the applicants also routinely overlook the passage in our leading privacy case, Hosking v Runting, that says: “The general position, then, is that usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.” This is intended to hike the threshold in cases where the court is granting an injunction restraining someone’s speech on the basis of a necessarily preliminary and partial look at the relevant evidence.

To be clear, in almost all these cases, that higher threshold would be satisfied, so injunctions would still be granted. But I still think it’s important that they ask the right question.

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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.

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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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