Mediawatch: What is broadcasting - and who decides?

Last Tuesday, a change in the law passed in Parliament to allow broadsters to air ads between 6am and noon on Sundays and some public holidays.

Media and Communications Minister Paul Goldsmith said he'd levelled the playing field a little for commercial media, because no such restrictions applied to online media outlets, which didn't exist when the Broadcasting Act came into being more than 35 years ago.

And all it required was a 73-word amendment to the act. Pretty low-hanging legislative fruit.

But the very next day, the Broadcasting Act was at the heart of a new headache for him - one which could become a 'culture war' political problem too.

BSA pokes the bear

The Broadcasting Standards Authority (BSA) upholds standards broadcasters are obliged to abide by, and the Broadcasting Act gives it the power to sanction them for serious breaches.

Last Wednesday, Sean Plunket - founder and boss of alternative streaming service the Platform - read aloud a letter he'd had from the BSA telling him someone had objected to Plunket describing Māori tikanga as "mumbo jumbo" earlier this year.

At the time Plunket had called the complainant "a plonker" for approaching the BSA, because he believed it had no authority over its online content.

But this week the BSA said The Platform is "an online broadcaster of a nature we consider clearly falls within BSA jurisdiction".

The BSA letter was marked 'confidential' and 'not for broadcast', but Plunket aired the details live on The Platform, before condemning "Orwellian bureaucrats coming for us".

"It is a hill I'm prepared to die on," he told listeners.

(Sean Plunket was appointed to the BSA board himself in 2017, but resigned later that year after tweeting: "Anyone else feeling for Harvey Weinstein?"

"I wish the board well in its important work in ensuring that the broadcast media in this country adhere to practices which do not harm society in general or individuals in particular," he said in a statement).

Winston Peters' claim of 'Soviet era Stasi-style' censorship hit the headlines later that day - and so did a letter by ACT MP Todd Stephenson, [https://www.thepost.co.nz/politics/360858104/act-considers-bill-abolish-broadcasting-standards-authority acquired by The Post on Friday.

Stephenson urged Goldsmith to ponder "its potential abolition" and said he was pondering a private member's bill to "get the issue resolved".

Why does the BSA say it has the power?

BSA chief executive Stacey Wood told RNZ the BSA had received a complaint that "clearly meets the requirements of the Act" and they were obliged to consider it.

"Everyone wants to have a reaction, but it seems like nobody wants to read the Act. Broadcasters broadcast programmes that are transmitted to the public by any means of telecommunication, not limited to TV or radio," Wood told RNZ.

Under previous leadership, the BSA had already reviewed the definition of 'broadcasting' for online services.

In a 2019 letter to broadcasters the

"Programmes that are transmitted online in a linear form (ie playing continuously) are broadcasting and not on-demand" and "programmes that are livestreamed by a company over the internet for reception by the general public in New Zealand… fall within the definition of broadcast," the BSA concluded in 2019.

Examples cited were music channel Edge TV and subscription service Spark Sport, but the Platform - which launched in 2021 - would also meet those definitions.

At the time the BSA said the act does not apply to "content provided purely on demand." User-generated content placed on platforms like YouTube or Facebook could not be considered as broadcasting subject to their oversight - and neither would podcasts available for download online.

"Our view is that online broadcasters that resemble traditional TV or radio stations clearly fall within the scope of the act," Wood told The Post this week.

"We do not believe individuals livestreaming via their social media accounts can be considered broadcasters as defined by the act."

In a post headed 'The Broadcasting Standards Authority is right', barrister and media commentator Steven Price described claims it would lead to the regulation of podcasts and social media as "bollocks".

"This has triggered a cascade of tizzies from Sean Plunket, Winston Peters, David Seymour, the Free Speech Union, David Farrar and others. This isn't a power-grab. It's limited to livestreams to general audiences, and it's what the BSA is required to do under the Broadcasting Act," he wrote.

But David Harvey, a retired judge and commentator on media law, told The Post he thought the BSA had got it wrong.

"They're talking about internet-based platforms like The Platform and Reality Check Radio... sort of traditional broadcasting, plugged into the internet. What happens if I decide that I'm going to run a livestream of me working, and people can phone in and say, 'What are you working on?' Arguably, it could amount to a broadcast and I would have to submit myself to a Wellingtonian bunch of bureaucrats."

Policy plans

In February, the media minister released a discussion document outlining five polices.

One was 'Modernising professional media regulation' and it mirrored the language of the BSA two years ago: "Revise the broadcasting standards regime (including the BSA) with platform-neutral and system-level regulation of professional media."

The discussion paper also said: "Our intention is to capture organisations that commission, produce, or directly pay for media content and distribute it as their primary business: including New Zealand broadcasters and streaming platforms, global streaming platforms, online text-based media, newspapers, and magazines."

The paper said it would not include "online platforms that primarily host user-generated content or provide access to others' content, such as social media (like Facebook and TikTok) and search engines (like Google)".

Is the BSA now doing what the government had in mind anyway?

"That's in the media reform package that went out for consultation… and the government's yet to make final decisions. But in the meantime the BSA is out there with what it considers is within its current ability to do," Goldsmith told Mediawatch this week.

"There's a lot of noise about it at the moment. Of course if you're in the sector you want to draw attention to yourself and so a lot has been said. I don't think our democracy is under threat, but it's an interesting little exercise."

"I think there's a very small group of people in that category. They're within their rights to test that and it may well go before the courts. I'm happy to let that flow through the system and see how it goes."

Plunket told The Platform listeners he feared the move would attract "a tsunami of woke complaints".

Legal challenges and activism from free speech groups could make Goldsmith the target of criticism for allowing censorship of the internet.

"I don't think free speech in New Zealand is going to collapse if we address change in the nature of how the media operates and then consider what the impact is on the BSA."

"One of the things about being in politics is from time to time, one is the subject of criticism. And if I worried about that, I'd never get out of bed in the morning."

What would Labour do?

In last week's debate in Parliament about advertising on Sunday mornings, Goldsmith's Labour Party shadow Reuben Davidson criticised the minister's achievements in his first year in the job.

"The issue here is what happens when you don't move fast enough. There is the potential for online platforms to be considered as broadcasters depending on how they're sharing and distributing their content," Davidson told Mediawatch.

"Otherwise we've got two completely different sets of rules for what… broadcast or traditional media - and news and current affairs content that chooses to only sit on online platforms. There's a real disconnect if there's two sets of rules for what could be seen as the same content."

"Legislation needs to catch up quickly. People are choosing and consuming news and current affairs in an entirely different way 1989 when the act was written. We need to find ways for that content to be regulated if it's originating out of New Zealand."

Labour wasn't exactly rapid with media reform in power until 2023. It had a plan for Safer Online Services but only made painfully slow progress before the current government scrapped it.

If he becomes the minister in 2026, would he be happy for the BSA to oversee online platforms like Reality Check Radio and The Platform?

"I think as an interim step… but it makes it clear how important it is that we get effective and updated legislation in place to allow for a regulator to be across the increasing content that is sitting in those online spaces - and currently a lot of it is going unchecked."

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