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BSA is still right
By Steven | October 21, 2025
This is PS to the post below.
I’ve now read what Judge Harvey and Liam Hehir have to say about this (and have had a chance to debate Judge Harvey on The Platform). I have to accept that the issue is not as clear-cut as I’ve suggested. But neither is it as clear-cut as they say it is. I still think the better argument is that the BSA has jurisdiction.
So I’m going to add a few more comments.
Provisional decision – prejudgment?
First up, there has been criticism, particularly from Judge Harvey and Sean Plunket, about the process the BSA has followed. They say that by issuing a “provisional interlocutory decision” about jurisdiction, the BSA has prejudged it. (“Interlocutory” just means a step taken in a dispute before the final argument and decision about the substance). They have a point.
But there’s another way of looking at it. The BSA twigged to this issue years ago, and did some work on it. They produced a memo and sent it to broadcasters in 2019. (The Platform and Reality Check Radio weren’t around then). The memo said they thought live-streaming internet broadcasts were included, but no such complaints had been raised, and if there was one, they’d give the broadcaster a chance to argue the toss before they made a final call.
The BSA’s provisional decision is, as you’d expect, very much in line with that memo. Had the BSA simply written to The Platform and said, “We’ve had a complaint about you. We can see there’s an issue about jurisdiction. We’d like your submissions. Oh, and we attach a memo we did in 2019 which you might like to address as part of your response” – then it would be hard to see how that was inappropriate.
What the BSA actually did was not so far from that. And as a general matter, some judges are willing to share their preliminary thinking with the lawyers arguing the case, and that’s invariably helpful. It’s good to know what you’re up against.
In fact, had the BSA not alerted The Platform to its earlier research, it could have been criticised for failing to do so. Imagine if it had just written to the parties seeking submissions and then reached a decision about jurisdiction that was in line with its earlier memo without telling The Platform about it. What’s more, the BSA would not have had the benefit of more direct engagement with its preliminary views.
Still. The process was not ideal.
On the other hand, it’s not impossible that the BSA, after hearing full argument, will reverse its provisional decision and hold that it does not have jurisdiction. That would also be entirely in accordance with the process it’s following.
Still, if you’re worried about constitutional propriety, it’s also very poor form, to say the least, for the PM and other Ministers to suggest that the BSA, a quasi-judicial authority, is unlawfully overreaching its powers. That seems to run against the spirit of the Cabinet Manual. If the BSA does reverse itself, we’re going to be left wondering whether it was political pressure that made them do it. Even if that’s not true, it’s not healthy.
What about the issue of jurisdiction itself?
Let’s put this in context. If The Platform and any other internet-based TV or radio platform are not subject to the Broadcasting Act, then they are not subject to broadcasting standards, and could do the following things:
- Wax falsely about the benefits of a new product’s ability to cure cancer
- Phone up someone and put them on air without telling them they’re on air
- Call for gay people to be executed
- Broadcast a music festival live, and set up a screen crawl displaying viewers’ texts, then drunkenly fail to monitor those texts so that named people’s private parts are unflatteringly discussed
- Criticise someone, then interview them and edit the interview so that it leaves out the important parts of their response
- Broadcast a dispute between a couple about whether the guy is the father of their six year-old daughter, then reveal the results of a paternity test, in the presence of that daughter, live and before a studio audience.
These are all based on real cases. In most of these situations, those harmed couldn’t simply use other laws instead, even if they could afford them. I’m not saying The Platform would do all these things. But I am saying that broadcasters have done them, and been held accountable through broadcasting standards which would not apply to internet broadcasters, on the theory that they’re not covered by the Act.
That’s my point about the purpose of the Broadcasting Act. In resolving issues of interpretation, judges ask themselves whether the purpose of the law is clear (say, from a statement in the Act that says its purpose is “to provide for the maintenance of programme standards in broadcasting in New Zealand“) and then interpret any ambiguity so as to fulfill that purpose rather than frustrate it.
A more literal approach
That’s not the only approach to interpretation taken by judges. Judge Harvey focuses on a more literal and technical approach. He points out that the definition of broadcasting is about transmission by “radio waves or other means of telecommunication”. He says telecommunication is about a particular infrastructure set up by broadcasters. It doesn’t include the transmission via the internet, which occurs though a network, via protocols, none of which are set up by broadcasters. That’s what Parliament had in mind, and that’s what they described, and it doesn’t include internet radio. “Just because it looks like a duck, and quacks like a duck, that doesn’t mean it is a duck,” he says.
It’s a reasonable argument. It can be supported by reference to the right to freedom of expression in the Bill of Rights Act, which says ambiguous laws should be interpreted consistently with the right to free speech where possible and being subject to a complaints regime is definitely a restriction on your freedom of speech, although it’s a bit hysterical to describe it as “censorship”. I think the only programme the BSA has ever ordered off air is the Mighty Morphin Power Rangers, on the grounds that it taught kids that violence was the best response to their problems.
A court might decide that Judge Harvey’s approach is right. I think there might also be an argument that it’s odd to call a computer a “broadcasting receiving apparatus” and that the proper meaning of that phrase is a bespoke TV or radio set.
The comeback
My response is that, if it looks like a duck, and quacks like a duck, it’s probably just another breed of duck that we didn’t know about before, and we should treat it the same.
I think “transmission of programmes” is a broad concept. Programmes are defined as sounds or visual images intended to inform, enlighten, entertain or promote someone’s product or interests. That’s… also broad. The phase “by means of radio waves or other means of telecommunication” seems to recognise that traditional broadcasts are only one way of transmitting programmes, and Parliament was contemplating others that might not be in existence yet. It’s allowed to do that! I don’t think “telecommunication” (also broad!) needs to be tied down to infrastructure the way Judge Harvey would.
It’s not uncommon for a law to apply to things or circumstances that weren’t around when the law was passed, as long as they can properly be said to fit within it. In fact, as the BSA has pointed out, there’s another law that orders judges to do that. For example, if a law says that vehicles have to travel on the left hand side of the road, and at the time it was passed, there were only diesel vehicles, then that law would also cover petrol vehicles after they came to be invented. Even though, when the law was passed, no-one had a clue that such a thing might come to exist.
The comeback to the comeback
Judge Harvey (and others) make another argument, and quite a good one. It’s based on another principle of statutory interpretation (are you starting to get the feeling that this statutory interpretation gig is a bit more complicated than you thought? Different approaches to interpretation can point toward different results. Welcome to Laws 101!)
This principle says that judges faced with ambiguous wording in a statute should avoid the meaning that leads to absurd, unfair, oppressive, etc results. So Judge Harvey says, wouldn’t it be ridiculous if I set up a livestream at my workplace and made it publicly accessible – and was then subject to a whole complaints regime! Liam Hehir makes a similar point. Are publicly accessible Zoom meetings all broadcasts subject to the complaints regime?
I tip my hat to this argument. In some ways, it’s the flip-side to my “wouldn’t it be ridiculous if an internet broadcaster, doing news and talkback the same as traditional broadcasters, with a similar audience size, and possibly doing the same harms, wasn’t subject to the same standards regime?”
And yet.
The comeback to the comeback to the comeback
One response is that these might not be “programmes”.
Another is that there are lots of small broadcasters, such as radio stations targeted at particular ethnic groups, who are subject to the regime.
Another is that even a Zoom call or workplace livestream could attract a large audience and start doing the sorts of harms that traditional broadcasters do.
One or more of those responses might work. But I’m not at all sure about that. I’m inclined to think that those sorts of transmissions don’t fall within the scope of what Parliament thought it was doing, even at a conceptual level. I also think such an interpretation would breach the Bill of Rights Act.
So that seems to be a big problem – two big problems – for my argument. The heat’s on me to explain why they don’t sink it.
The Bill of Rights Act
I’ve said Bill of Rights protects freedom of expression. The BSA hears complaints against broadcasters’ speech, and sometimes upholds them. It can order broadcasters to air a corrective statement. That’s a direct infringement of the broadcaster’s right to decide what to broadcast. It can (effectively) fine them. That’s a punishment for speech. It can simply uphold the complaint and publish its decision. That also restricts speech by setting boundaries on what can and can’t be said. It can order them off-air for up to 24 hours (though it’s only done that once as far as I know). That obviously restricts speech.
But the right to free speech, even under the Bill of Rights Act, is not absolute. The Bill of Rights permits restrictions that are reasonable, prescribed by law, and are demonstrably justified in a free and democratic society. That’s why we can have laws regulating defamation and advertising and trade secrets and porn.
A court would almost certainly say that our broadcasting standards regime – as it applies to traditional broadcasters – is a demonstrably justified restriction on broadcasters’ speech.
I think it’s a small step to say that applying that regime to internet broadcasters who are performing virtually exactly the same activities, with the same potential harms, to similar public audiences, is also demonstrably justified.
But is it demonstrably justified to apply that regime to the livestream of work, or to a Zoom call? I don’t think so.
But I think the courts could readily get around this. I think the courts can say that The Platform is broadcasting, but the Zoom call isn’t. I think they will interpret the definition of broadcasting so that it doesn’t apply to those small-fry things. They will add a gloss that says the definition only applies, say, to broadcasters that reach substantial public audiences, or who are conducting commercial activities, or are in a position to do significant harm to the standards the Act is designed to protect, or to broadcasts that are the primary activity of the person doing the broadcasting.
That’s not in the language of the definition of broadcasting. But courts do that sometimes. I think it’s a fair argument that such a reading-down is in keeping with the context and purpose of the Broadcasting Act. It would avoid an overly expansive interpretation. It would solve the problems of purpose and free speech set out above.
So… aren’t I saying that courts won’t or shouldn’t read in Judge Harvey’s notion of telecommunication infrastructure, but they can and should read in my gloss that weeds out small, private transmissions that would otherwise be caught? Yes I am. I think mine is in keeping with the purpose of the Act, and addresses the problem of leaving significant internet broadcasters unregulated, and is a demonstrably justified restriction. (Of course, Judge Harvey’s is also demonstrably justified under the Bill of Rights, as it creates no restriction on the speech of internet telecommunications).
Levies
Sean Plunket has noted that he’s never been approached by the BSA to pay levies. In fact, the Broadcasting Act doesn’t make that the BSA’s job. It’s the job of broadcasters subject to the Act to provide a return setting out their revenue so the BSA can calculate the levy. (That levy is about $250 per half a million dollars of revenue, so I doubt it would be very high).
Actually, it’s an offence for The Platform not to submit such a return. But under the prosecution guidelines, I’m confident that no-one will be interested in prosecuting in these circumstances.
Still, there’s an argument (another principle of statutory interpretation!) pointed out to me by Graeme Edgeler that, when a statute is ambiguous, the courts usually won’t adopt an interpretation that creates unexpected criminal liability. Stack that one up beside Judge Harvey’s argument.
There’s more to say, but that’s plenty, I think.
I was wrong to say below that the counter-argument is bollocks. It’s clearly arguable. But I still think the BSA’s provisional view is right.
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