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 passage 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?
Topics: General | Comments Off on AI lawsuits?
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?
Topics: General | Comments Off on Ad infinitum
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.
Topics: General | Comments Off on ASA gets this one right
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.
Topics: General | Comments Off on Another problem with the ASA’s election complaint process
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.
Topics: General | Comments Off on A few notes on the OIA scandal
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.
Topics: General | Comments Off on Stuff gagged – wrongly?
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.
Topics: General | Comments Off on Interesting Media Council splits
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.
Topics: General | Comments Off on BSA cop out?
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.
Topics: General | Comments Off on ASA cops out again
De-Platformed
August 20, 2026
The BSA has upheld the complaint against Sean Plunket’s internet broadcasting outfit, The Platform. (Of course, the bigger issue here is whether they had jurisdiction at all, but I’ve covered that elsewhere).
I had confidently predicted they wouldn’t uphold the complaint. I think they shouldn’t have.
The facts:
Plunket was discussing Fire and Emergency NZ’s Kaupapa Maori strategy. He said tikanga was “mumbo jumbo”. But the BSA said, he went further, and ridiculed at length the use of tikanga in relation to public sector organisations generally in a way that was “scornful, anti-Maori and one-sided”, calling it “nonsense”, “nuts”, “stupidity”, utter crap”, “Maorification rubbish” and “woke”. Some of this came from listeners, but Plunket encouraged and endorsed it.
The decision
The BSA held this breached the statutory standard requiring good taste and decency.
When Plunket went on to name the complainant, the BSA found this was a breach of standards protecting privacy and law and order (because it was “likely to promote illegal or anti-social behaviour”: listeners, predictably, had gone on to harass the complainant). The BSA suggested that Plunket may have breached – or at least encouraged the breach of – the Harmful Digital Communications Act.
I’m going to focus on the taste and decency finding, because that was at the heart of the complaint. The BSA’s decision is thoughtful and takes care to set out its reasoning at some length. It says it wouldn’t have upheld the complaint if it had just been Plunket calling tikanga mumbo jumbo a couple of times.
The significance of the discussion
I don’t think this was a breach. For one thing, although I think Plunket was being a bit of a dick about it, he was clearly exploring a range of significant issues. The BSA gives him some credit for this (see para [57](f)) – it raises the significance of the free speech issues. But it doesn’t give enough credit, I think. The BSA’s decision includes lengthy excerpts from the programme, including exchanges with listeners. Reading them, you can see that the programme makes arguments about:
— the importance of fire services
— the lack of salience of cultural values to the practice of fire-fighting
— the incoherence (and local variability) of tikanga
— the fact that it’s only Maori culture that is targeted by the policy
— the lack of democratic legitimacy of such a policy
— the failure of FENZ to agree to come onto the programme to defend it
— the fact that the policy is out for consultation
— people feeling they need to sign up to these values in order to advance their careers
— people being turned off a “quite beautiful” language by having it “rammed” down their throats, which we would not tolerate if it were a religion
— the “unsafe fire stations” and fire trucks “that they can’t afford to replace”, and yet “they waste money on this crap”.
— it might put people off giving money to their local fire departments
There’s more along those lines. I’m not saying I agree with it. I’m not sure there’s much evidence to support some of it. But it feels very largely like political speech. Mostly, they’re playing the ball not the man. And one principle of free speech is that regulators and courts should cut people slack for the way they choose to express themselves. (There’s a US Supreme Court case where it was held that a jacket with featuring the words “Fuck the Draft” is protected speech and can’t be penalised for offensiveness, even when worn in court). Another way of putting that is that regulators should be very leery of using offensiveness standards, which are inherently amorphous, to control political speech.
But some is ugly
To be clear: there are a few ugly moments in the programme, that are pretty racist or at least dog-whistly racism. One caller says “as we Maorify, we become more primitive in all our systems and methods”. Another says, “the cultural BS has not been pushed by everyday Maori, it’s woke-tarded, self-loathing white people and a select group of grifting Maori.” Again, there’s more like this, but not awfully much.
Wrong standard?
One problem is that we do have a broadcasting standard designed to deal with this sort of racism, and it’s the Discrimination and Denigration standard. But that has a very high threshold and exceptions for genuine analysis or opinion. The group attacked must be blackened as a whole. There usually has to be an element of malice. It’s not at all clear that this programme would have crossed that threshold. But the BSA didn’t apply that standard.
Why not? The complaint was expressly about “racism” and about “demeaning” Maori. The problem was that the BSA’s codebook was not drawn up to cover internet broadcasters. So the BSA went back to first principles and applied the Broadcasting Act directly. The Broadcasting Act is a bit weird: it specifies particular standards that broadcasters must observe (taste and decency, privacy, law and order, balance) and then sets up a process for determining other standards in consultation with broadcasters (the Act mentions things like accuracy, fairness and denigration, for example).
So the BSA could have said “you’ve complained about something that’s not an obligation directly specified in the statute” – denigration – “but we’ve got no applicable code so we can’t rule on this”. Or it could have said “The Platform is basically radio, so we’ll apply that code, including the denigration standard.” But it didn’t do either. It applied the statutory standards, but said it was okay for it to draw upon the codebook and its decisions in applying those standards. That’s awkward, because some of those codebook standards contain guidance and even wording that departs from the statute. “Taste and decency” has become “offensive and disturbing conduct”, for example. (Don’t get me started on the glosses the BSA has applied to the balance standard).
Anyway: this is a problem. The Act itself seems to contemplate a difference between taste and decency complaints and denigration ones. But the BSA has shoe-horned the complainant’s “denigration” complaint into a “taste and decency” pigeonhole, then redefined it as an “offensiveness” standard. Worse, it has stretched the “offensiveness” standard to cover opinions, even political ones.
Traditional interpretation of taste and decency standard
The BSA has almost always applied the taste and decency standard – lately interpreted as offensiveness – to cover things like swearing, sex and nudity. I think that’s clearly what the standard is about. The only things in this broadcast that get close to the traditional approach to the standard are a listener calling these policies a “wankfest” and another saying fire fighters “like playing with their hoses”. It’s not enough. Very occasionally, the BSA has found that opinions can be offensive, as when it penalised Radio Pacific talkback host for calling some unnamed Ministry of Education officials designing a new curriculum “child molesters of the mind”. I have said, and still think, that’s a wrong use of that standard. I think the BSA is making the same mistake here.
I can conceive of opinions that are so thoroughly offensive/tasteless that they breach the standard. But not many. And there will always be the danger that the regulator will be tempted to (perhaps unwittingly) take sides in the debate. Extreme language or views will seem worse because they go against prevailing values.
Free speech under the Bill of Rights
The BSA is required to interpret and apply its powers consistently with the Bill of Rights Act. That means, I think, that they needed to do a better job of recognising the political salience of this programme, and the limited scope of the applicable restrictions. Interestingly, they found that if the programme was a bit shorter or contained a little bit of balance, it may not have been held to be offensive. (There are some good points here that show how unfair, unbalanced and possibly inaccurate Plunket’s show was: Maori are overrepresented in fire deaths; they’re important partners in risk reduction relating to their communities and forest ownership; they make up ten percent of front-line fire fighters. In other words, there’s a case to be made that fire-fighting could benefit from an understanding of Maori culture that helps communication and understanding, builds relationships and fosters fire safety. But Plunket didn’t seem interested in any of that.)
You can see the BSA’s point. If listeners had just been given a sniff of the opposing views, the whole thing wouldn’t have been so offensive. But I think this just shows that the BSA is applying the offensiveness standard to what it’s calling offensive ideas (or, to be more fair, offensive expression of ideas). Offensiveness shouldn’t turn on the content of the ideas, and it definitely shouldn’t turn on the viewpoint being expressed. It’s hard to escape the impression that this is what’s happening.
And again, I think this confuses different standards and points up the dangers of using offensiveness to address complaints that belong under different standards. It’s ironic that the BSA has interpreted the balance standard so that it is almost impossible for it to apply to talkback, but then tries to introduce it via the back door in an offensiveness complaint. (Okay, so I did get started on that).
The BSA’s own guidelines
A final point: even if you accept that it is legitimate for the BSA to apply its Codebook’s guidance on the Offensiveness and Disturbing Content standard, almost all of it tells against upholding this complaint. The violation of community norms must be serous; context is crucial; audience expectations and the host’s reputation are important – people can choose what to listen to; and particular care must be taken in upholding complaints about talkback.
Penalty
The BSA imposed no penalty (time is past, case is novel), which makes the impact on free speech less. But I still think that the decision is an unjustified restriction on The Platform’s freedom of expression.
Topics: General | Comments Off on De-Platformed
« Previous Entries