A funny thing happened on the way to abolishing the BSA…
October 12, 2026
As you’ll know, the current government has decided to scrap the Broadcasting Standards Authority. This would happen after the election. But last month they introduced a Bill that would do the trick.
One little-noticed effect of doing away with the BSA is that it would also subject all broadcasters to the Privacy Act. Under current law, broadcasters who fall under the BSA complaints regime are exempted from the Privacy Act when conducting news activities. If this was removed it would mean, among other things, that someone featuring in a TV or radio story (or someone who gets wind of the fact that they’re going to be in one) can demand access to all the information the broadcaster holds that’s about them. There are exceptions, but they are narrow – much narrower than those in the Official Information Act.
Broadcasters hate this idea. They think – with good reason – that it would undermine their ability to report news. They lobbied to be exempt from the Privacy Act. (I remember writing a column about it at the time, saying that when the Privacy Act – including the media – was first mooted, the media stood like Gandalf in the Mines of Moria intoning “You shall not pass!”). They succeeded. Broadcasters that were subject to the BSA’s complaints jurisdiction got a special exemption from the Privacy Act.
But now… no more BSA, no more exemption.
There’s more. In removing the broadcasters’ exemption, the new Bill also removes… print media’s exemption (check out section 28). That’s newspapers, magazines, some news sites, blogs and substacks. The Privacy Act currently grants their news activities immunity from the strictures of the Privacy Act if they’re subject to the Media Council’s complaints regime. But for some reason, that’s been removed too. So all mainstream media may face a barrage of Privacy Act requests from people they’re writing about.
It’s worse than that. Broadcasters and print media will also be subject to a range of rules that were not designed with them in mind. So, if they gather material for one purpose, they have to use it for that purpose, or a directly related one. They can’t use it for a different purpose. They can only gather information in a way that’s fair and not unreasonably intrusive. If they gather information about someone from a third party, they may have to tell the person what’s happening.
Ah, you’re saying, having diligently followed the link above and read section 28. (Graeme Edgeler, I see you). The government can pass regulations recognising any media “regulatory” body (presumably ethics complaints bodies), and members of those bodies will be exempt from the Privacy Act, when they’re gathering news.
Yes. The government can do that. But that provision has always been there. It has never been used. There are no media ethics complaints bodies recognised by regulation. The BSA and the Media Council were expressly listed in the Privacy Act, so no special regulations needed to be passed to cover their members. But the new Bill removes the express listing of the BSA and the Media Council, so the only media organisations that get an exemption will be those recognised by regulation. And at the moment, there aren’t any.
True, the government can pass some regulations in a hurry so that they come into force at the same time as the law abolishing the BSA comes into force. I’d expect them to do that. I’d expect the Media Council to be recognised like that.
But at the moment, the Media Council does not hear complaints about broadcast content (except in relation to classification of programmes – content warnings, etc). It’s not resourced to hear substantially more complaints than it already does. Its code of ethics was written with text-based journalism in mind. The journalist members of its complaints board are all print journalists. Some broadcasters have signed up to the Media Council. But that’s for classification decisions. The Media Council doesn’t hear complaints about their news programmes. So broadcasters’ news programmes are not *looks at the wording of section 28* “subject to the oversight” of the Media Council. That would mean they are subject to the Privacy Act.
So there’s a big gap. And even if the government passes regulations recognising the Media Council, it’s not clear that the Media Council is in a position to hear complaints about broadcasters’ news and current affairs content. It’s not even clear that it will accept broadcasters as members for that purpose.
Officials have pointed this out. “The key assumption underpinning this analysis is that the Media Council will assume responsibility (and develop new processes and functions) for standards and complaints about their members’ broadcast content”, they say in the Regulatory Impact Statement. It’s not clear whether or how this will happen. The Quality Assurance Statement for the RIS says, “There is a largely untested assumption that self-regulation by broadcasters can be effective. The RIS also assumes a coherence of regulatory roles amongst relevant entities, some which are mandated and some voluntary.”
That warning goes beyond the small point I’m making here about the Privacy Act. But the bottom line is the same. The government seems to be expecting a lot of the Media Council. And there’s no indication in the government’s documents that they even want the job.
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AI lawsuits?
October 8, 2026
Before AI kills us all, or enslaves us like horses, or takes our jobs, or destroys our infrastructure, it’s going to drive us to the courts.
I’m a media lawyer and lecturer, and I’ve spent the past few weeks thinking about how AI is going to shake down in my field.
You’ve probably already heard about the raft of copyright lawsuits aimed at AI companies’ practice of hoovering up our entire cultural inheritance without paying for it. But the cases will go well beyond that.
I sometimes imagine myself setting an exam in a few years’ time:
Charlie, an author, uses the LLM ChatTanooga to polish her prose and suggest an alternative ending with a twist. She gets it to add some new passages to flesh out her main character. Has she breached the term in her contract with the publisher requiring the work to be original?
The publisher, WilliamCollins, feeds the book into AI to suggest a blurb and some marketing scripts. It doesn’t switch off AI’s training data function. Has the publisher breached the contract?
The book is a hit. Jude, a journalist, runs it through AI-Spy, an AI detection programme. It concludes the book is 8% AI generated.
Jude reports this. Is that defamatory? Might the machine’s take attract a defence of honest opinion? If the accusation is wrong, might Jude have a defence of responsible communication in the public interest?
Tom bought a copy of Charlie’s book. Can he get his money back?
WilliamCollins pulls the book and sues Charlie. Can it get a court order forcing ChatTanooga to disclose Charlie’s chat records
Blake represents WilliamCollins and gets ChatTanooga to draft the application. It invents a few helpful cases. Has Blake committed contempt of court?
Sam publishes a different book with a very similar style to Charlie’s and in fact includes some passages from Charlie’s book, almost verbatim. Some of those passages were written by AI. Can Charlie sue for breach of copyright? Or for Passing Off? (Can ChatTanooga?)
Justice ChatTanooga rules that AI owns the copyright and orders Sam and Charlie and WilliamCollins to pay millions of dollars in compensation. ChatTanooga then drains Charlie’s bank account, sells her home, and lists all the chemicals in her body on TradeMe.
Are there good grounds for appeal?
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Ad infinitum
September 30, 2026
Yet another ASA decision about yet another National Party ad – a billboard this time.
There’s one of these on the motorway between Wellington and Petone and when I saw it I was outraged. I started drafting a complaint to the ASA myself. But then I thought I’d better check the wording. So I drove out there again and noticed – when I read it more carefully – that the red side is labeled “Labour Coalition”. I hadn’t seen that on first pass. I suspect National would be quite happy about that.
Still, fifteen other people complained. They took various objections. Some felt it was claiming that Labour was proposing nine new taxes. Drivers were likely to miss the “coalition” part. (I did). Others said, anyway, no-one’s proposing nine new taxes, and it won’t be clear who’s in government and what deal they’ll strike on taxes until after the election. There is no “Labour coalition”. One felt it was unfair to compare the left block with just Labour. Another pointed out that National promoted taxes or levies where increases were built into the structure. Many called it a “lie”.
The National Party said polls universally showed Labour would need a coalition to govern. It would be Labour-led, hence the redness. It listed the proposed taxes, which are mostly Greens proposals.
The ASA split. The majority didn’t uphold the complaint, saying the red bit of the billboard was a “forward-looking opinion” – a clearly distinguish political viewpoint – and the right part was a fact. A minority said the “nine new taxes” was presented as fact, and there wasn’t evidence for it. Some minority members said it was presented as Labour policy because of the big red sign and the small “coalition” label. So it was just false. Others in the minority accepted that drivers would notice the word “coaltion” but the sign was still wrong because any taxes would depend on coalition negotiations.
The complaints board has nine members – five members of the public and four industry members. The way the decision is drafted (“some members of the minority… other members of the minority”) the decision looks to have been 5-4.
I may be biased by my own experience, but I tend to sit with those who think the little rider at the bottom of a billboard that is designed for drivers to just glance at isn’t enough to overwhelm the obvious impression created by the glaring Labour-redness of the sign (and the fact that it’s just one party on the other side – which invites a party-to-party comparison).
But if you buy that the billboard makes it clear that it’s about the coalition, then it’s a closer call for sure. I think it’s a bit weird to say that viewers will get that one side is a fact and the other is a “forward-looking opinion”, but I don’t think you need to go there: it’s plausible that people will just think it’s a summary of the policies of the relevant groups. Likewise, I’m not sure I agree that it’s wrong because we won’t know what the tax position will be until after coalition negotiations. That strikes me as obvious, so it doesn’t make the sign false. It’s saying: here are all the tax policies that the various likely coalition members are putting forward.
But for me, the real problem is that Labour – whose branding colour is being used here – has categorically ruled out four of these taxes. This is something the ASA doesn’t mention (though I suppose the minority members who say it call comes down to coalition negotiations might have had this in mind). The thing is, I don’t think there’s a universe where a Labour-led coalition introduces these nine new taxes. And if that’s the case, or even that it’s just extremely extremely unlikely, then isn’t this really… false? I mean, how insanely implausible does a claim have to be before we treat it as wrong? Even allowing lots of wiggle room for political speech?
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ASA gets this one right
September 28, 2026
I think National’s election campaign this year is a particularly deceptive one, and this is another complaint. This time it’s about a mail-out, which parties ought to take particular care with. National claimed that “Labour’s capital gains tax would hit the family
bach, rentals, small businesses and KiwiSaver.”
See if you can work out the justification for including KiwiSaver in that list. (Hint: CGT does not apply to KiwiSaver).
Here it is: KiwiSaver funds could be invested in businesses which own commercial buildings, and the capital gains tax would apply to those buildings when sold and therefore impact KiwiSaver. (Yes, it’s that much of a stretch.)
The Advertising Standards Authority reached the obvious conclusion that this wasn’t what the ad was saying, and that it was making a factual claim that people’s personal KiwiSaver funds would be subject to the capital gains tax. (A minority somehow disagreed, saying that readers would understand that “capital gains tax will impact small businesses and KiwiSaver businesses at some level.” Applying this logic it would be okay for National to assert that the CGT would impact every single aspect of the economy.)
To its credit, the ASA set out how it understood what an opinion is: “The Complaints Board noted that a fact is something that is objectively true and can be verified as such whereas an opinion is a personal belief. Others may agree or disagree with an opinion, but they cannot prove or disprove it. Sometimes statements are a combination of fact and opinion.” It has also cited the precedents it relies on.
I’ve criticised the ASA in the past for not doing both, so kudos is due here.
The other part of this decision is whether it’s a breach to claim that CSG will hit small businesses. The answer is that if the small business is selling to buy bigger premises, then it won’t, but if it’s selling for any other reason, it will. I think you really need more information about how often small businesses are sold for each purpose. But if the number sold for other reasons isn’t insubstantial, then the claim (and the ASA’s conclusion) seems fair enough to me.
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Another problem with the ASA’s election complaint process
September 28, 2026
Here’s a complaint against a National Party Facebook and Instagram ad, again falsely implying that Labour is proposing nine new taxes (though to be fair it doesn’t seem to explicitly mention Labour). The ASA chair decided there were grounds to refer it to the complaints board for consideration.
But then National simply said the ad “has now dropped out of circulation” and they “don’t plan to use it again”.
So the ASA stopped the process and treated the complaint as “settled”.
Note that National isn’t specifically saying that the ad is no longer available, or has been withdrawn.
More importantly, surely this will be the case with almost every single social media ad. Each ad will have run its course before the ASA has time to consider it, so they’ll never be able to rule on it. National (or any party using this strategy) just needs to tell the ASA it’s done with that ad, tweak it and put it out again (as it would have done anyway), and it will escape any accountability for falsity, no matter how blatant.
This is not a complaints process that’s fit for purpose. But it is the process that the government proposes to entirely replace the BSA’s consideration of electoral complaints.
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A few notes on the OIA scandal
September 23, 2026
A Ministry of Education official has been caught on video telling staff not to write down their feedback from the Minister’s office because it is “OIA-able”.
It’s not good. It looks like an attempt to create a misleading impression that feedback on a draft curriculum didn’t come from the Minister’s office. It may be a breach of the Public Records Act, which requires officials to maintain ordinary prudent business records. It doesn’t directly infringe the Official Information Act, but may run foul of the requirements in the Ombudsman Act that official action not be “unreasonable, unjust, oppressive, or improperly discriminatory, or in accordance with a rule of law or any legislation or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory” or “wrong”. The Ombudsman is investigating.
So, a few things.
First, this happens. Outgoing Chief Ombudsman Sir Peter Boshier noted this concern in his departing remarks that some officials are not keeping proper records so that they are later accessible.
Second, it matters. One of the points of the OIA is to hold officials and Ministers accountable for their actions. We can’t do that if there’s no record.
Third, we don’t really know how much it happens. The nature of this tactic means it’s difficult to discover.
Fourth, I suspect it happens more than it used to. My impression is that the OIA is more politicised than it used to be, creating pressure for officials not to release things that embarrass the government. There’s evidence that Ministers (of both parties) are much more aware of the significant potential harm of OIA releases and focus on managing them better. There’s also evidence that Ministers occasionally try to bully officials into holding material back in response to OIA requests. I understand the thinking behind the “no surprises” policy, but I think a downside is that officials become more acutely aware of the impacts of OIA releases on their political masters.
Fifth, when it does happen, it’s not always evil. Not everything has to be recorded under the Public Records Act. It’s legitimate for some things to be handled by an unwritten discussion.
Sixth, when things are not written down, that does not mean that the OIA does not apply. The OIA gives us a legal right to “official information” even when it hasn’t been written down. You can ask for information about facts and states of affairs even if they are unwritten. Did the Minister meet with lobbyists? When? How often? Who was there? Was X topic discussed?
Seventh, despite what I’ve just said, when things are not written down it’s much harder to get the relevant information. Many requesters don’t know about the rule that you can ask for things that aren’t recorded in documents. Nor do many officials. Even when they do, memories may be vague. Things may be forgotten or omitted.
Finally, organisational culture matters a lot. In a healthy organisation, leaders and Ministers create norms of transparency and expectations that it’s not okay to try to evade the OIA.
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Stuff gagged – wrongly?
September 18, 2026
The High Court has granted an injunction against Stuff Ltd preventing it publishing a report into potential conflicts of interest at a law firm receiving legal aid money.
It seems the law firm was referring work to a firm that produced cultural and alcohol and drug reports for court. That firm was owned by two of the members of the law firm, and one’s the vice president of the criminal bar association. A KC investigated and found – importantly – that the work was of good standard and value and was not improperly influenced by the lawyers who commissioned the reports. But it seems he raised questions about potential conflict of interest.
Stuff has somehow got hold of a copy of the report. It believes its reporting is in the public interest. The Ministry of Justice says it’s confidential. The judge granted an interim injunction to prevent further publication. That means there will be fuller argument shortly.
I’ve read the decision (it doesn’t seem to be available online, but doesn’t refer to anything beyond what’s already reported).
I’m not entirely sure I disagree with the outcome. And these things are put together and argued very quickly and without much preparation. In particular, they tend to get sprung on the media defendant at the last moment. And I don’t know exactly what was argued. So I don’t think anyone can be too critical of it.
But several things seem surprisingly missing to me, and all of them would have made it harder (but not impossible) for the judge to grant this order:
- The judge cites the standard threshold for interim injunctions. This essentially asks whether there’s an arguable case and if there is, then what will “cause the least irremediable prejudice to one party or the other?” But the proper questions in cases where free speech is at stake is different. It’s from the Fahey case, where the Court of Appeal held that: “Any prior restraint of freedom of expression requires passing a much higher threshold than an arguable case standard” and “The jurisdiction to restrain the proposed publication is exercisable only for clear and compelling reasons”.
- A government plaintiff – like the Ministry of Justice – has to show that disclosure would harm the public interest – ie it is in the public interest to enforce silence. This is from the famous Spycatcher case, and the rationale is that this is our information, so the government should have to justify keeping it secret.
- When third parties, like the media, get hold of allegedly confidential documents, the key test is from Hunt v A, where the Court of Appeal said: “whether a third party recipient of confidential information has acted unconscionably in relation to the acquisition of information or in the way it has been employed” (I’ve added emphasis).
The judge doesn’t mention any of these cases, and doesn’t apply any of these tests. So it’s hard to be sure that the outcome is legally justified.
Oh, and a mention of the right to freedom of expression in the NZ Bill of Rights Act – plainly in play here – wouldn’t have gone astray either. Any gagging order, even a temporary one, must be shown to be demonstrably justified in a free and democratic society.
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Interesting Media Council splits
September 18, 2026
The Media Council (formerly the Press Council) hears complaints against print or text based media, alleging unethical conduct such as inaccuracy or lack of fairness or balance, or invasion of privacy. The complaints board comprises a combination of journalist and non-journalists picked to represent the public and is usually chaired by a retired judge (currently Raynor Asher KC). The quorum under the new constitution is nine, but usually 11 consider the case.
Interestingly, the majority of members considering any particular case must be from those picked to represent the public.
Decisions are very often unanimous. But I have sometimes wondered whether the journalists may be able to influence decisions by insisting that “that’s the way things are done”, something that the non-journalist members have no experience of. When I’ve raised this possibility, I’ve been told that the journalists are often the ones who are hardest on their colleagues. I’ve never been quite sure.
So I was interested to come across this decision recently. It split the council down the middle. Voting to uphold the complaint: almost all the journalists. Voting not to uphold: almost all the public members. I don’t have a strong view on the outcome, but that’s surely grist for the Media Council’s supporters.
Looking for that decision to provide a link, I also came across this decision. Voting to uphold: almost all the public members. Voting not to uphold: all the journalists, plus the judge and one public member.
It’s a fascinating case. The Waikato Times published a story with the headline Methamphetamine supply charges in wake of fatal crash that claimed life of US tourists ‘denied and remains denied.
Here’s the Council’s summary of the story:
- The article reports on proceedings at Tokoroa District Court in June 2026, where the defendant was charged with drug offences, including supplying methamphetamine and driving with a listed substance in her blood, that arose from her involvement in a fatal crash.
- The “lead charge” – possession of methamphetamine for supply – was “denied and remains denied”.
- The defendant was not present due to a misunderstanding and had presented at another court expecting to appear by audio visual link.
- A one-day Judge-alone trial date was set down for 23 July 2026.
- The article includes background on the two American tourists who died in the crash, tributes from friends, and a photo of them.
- The report says police “cannot rule out further charges” and calls for any witnesses to the crash to contact police.
So… answer this question without reading any further. Was the defendant charged in connection with causing the crash?
Would it make any difference to your understanding to know that the tourists had swerved to the wrong side of the road when the crash happened? And that the defendant was not charged with causing the crash?
The defendant complained to the Media Council. She said the article implies she caused the crash. But it wasn’t her fault. (She eventually pleaded guilty to driving under the influence of drugs but was never charged with causing the crash, and it seems to be accepted that the tourists were on the wrong side of the road).
Five public members of the council felt this was inaccurate by omission. The paper said it doesn’t have to report what people aren’t charged with. I think when they’re creating a false impression (which for me, this story does, even if unwittingly), they should have to report that. But perhaps it wasn’t a breach: the standard requires deliberate inaccuracy. I think this is a major flaw in the Media Council’s standards. Inaccuracies can be deliberate or sloppy; they can be inadvertent. But if they’re significant, they’re still disserving the public and often the person the story is about. The BSA doesn’t require inaccuracies to be deliberate. The Australian Press Council doesn’t either. The Media Council shouldn’t.
In any event, that wasn’t the reasoning of those members. It was more sophisticated than that. They said, when the complainant wrote to the paper and told it that she hadn’t been charged with causing the crash and would be arguing that the tourists were on the wrong side of the road, the paper didn’t add a clarification to the story. At that point, it became inaccurate by omission.
That seems dead right to me.
And I’m wondering why that gut instinct wasn’t shared by all the others, including all the journalists. In part, it’s because the information was provided in a later story. But that was published six weeks later, and I think the media are often too quick to assume that people who catch one story will catch later ones on the same topic.
The majority also say it was the defendant’s own actions that put her in the news, the paper didn’t say she caused the crash, and there was little it could do to get it right. To which the answers are: yes and no; the paper did imply it and should be responsible for that; and it could have either reported that she hadn’t been charged with the crash or added a clarification to that effect later.
Anyway, this decision also gives support to those who say the non-journalists won’t be unfairly swayed by the journalists.
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BSA cop out?
September 3, 2026
I’ve just accused (below) the Advertising Standards Authority of copping out by refusing to uphold a complaint by finding that an assertion of fact is a statement of opinion. I think the BSA sometimes does the same thing. But at least it argues it out.
It recently rejected a complaint against Mike’s Minute. Hosking was giving his “observations” about the Covid report Whitiki Aotearoa. Here are some:
“Five: Did the Labour Government broadly cock it up? Yes.
Six: Badly? Yes.
Seven: The report says at its heart, people tried hard. They wanted to do the right thing.
Eight: Is that acceptable? Answer: sort of, but wanting to do well isn’t the same as actually doing well.
Nine: It’s hard to work out what’s worse – the medical cock-ups or the financial ones.”
The complainant made a series of arguments, and one was that the report simply didn’t say anything about medical or financial cock-ups. I haven’t read the report, but that seems to be right. At least, neither NZME nor the BSA suggested it wasn’t.
They both said that this was clearly opinion so it was an exception to the accuracy standard. In relation to the rest of the complaint, my take is that’s right. Listeners knew they were getting Hosking’s views, and any doubt should be resolved in favour of the speech, since it’s a political criticism.
But the medical and financial cock-ups thing? I think it’s clear that listeners would assume that the report made at least some findings about medical and financial cock-ups. That statement comes just seconds after Hosking has said “The report says…” and the whole thing is “observations on the report.” NZME and the BSA say it’s obvious to listeners that at that point Hosking was just giving his own view about the government’s response. I can see the argument – just – but I disagree. What’s worse, this careless smear makes it sound like it carries the imprimatur of a formal report after a lengthy investigation. I think that disserves listeners and it’s what broadcasting standards are there to pick up.
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ASA cops out again
September 3, 2026
Looks like the Advertising Standards Authority is doing its usual thing in letting political parties get away with blatantly misleading ads by pretending that they are opinions. It’s a bit difficult to tell, because the ASA’s website’s new display format provides so little information about the complaint, the ad complained about, or the ASA’s reasoning. Looks like this complaint targeted the National Party’s “Triple Your Taxes” ad. The complaint’s board’s chair just bowled out the complaint on the basis of unspecified precedents and the assertion that it was “a statement of political opinion”.
I have no idea what criteria the ASA use to decide whether something is an opinion or not. I think the best definition of opinion is something like “a statement that, in the context, indicates to the audience that it’s something they can disagree with”. I’m in favour of giving political speech latitude. I’m also in favour of protecting the voting public from electoral misinformation. Yes, that can be a difficult balance. But it’s hard (though perhaps not impossible) to spell out a case that this particular ad isn’t asserting a fact. It’s distressing that the ASA doesn’t even try.
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