Broad Overcast

If the BSA Wants Jurisdiction Over the Internet, It Has to Take the Whole Act With It.

The Broadcasting Standards Authority has concluded that livestreamed online content can fall within the definition of “broadcasting” under the Broadcasting Act 1989. By remarkable coincidence, the interpretation extends just far enough to reach the broadcaster the Authority wanted to regulate. How lucky for the BSA!

But the BSA’s reasoning is also somewhat weaselly because there are some logical consequences of its finding that it plainly does not want to live with. The trouble is that the Act does not invite regulators to selectively expand its reach while suspending inconvenient consequences.

It creates a complete statutory scheme. That scheme operates as a whole. And if broadcasting now includes classes of technologies not available in 1989, it opens quite the can of worms.

Sections 30A to 30G of the Broadcasting Act 1989 impose mandatory obligations on every “broadcaster”. Those obligations include filing an annual return of revenue and, above a threshold, paying a levy. Failure to comply is an offence and is punishable by a significant fine.

The language used is not soft or discretionary. Section 30A states that every broadcaster shall provide a return by a specified date. Section 30B requires that, where revenue exceeds $500,000, that return shall be accompanied by a levy. These are not policy options for the BSA to impose or waive based on vibes.

They are legal requirements.

Once that is understood, the real issue becomes unavoidable. The Authority’s logic does not stop at The Platform. It extends to anyone transmitting live audiovisual content to the public over the internet.

To see why, the statutory definition must be confronted in full. Section 2(1) of the Act defines “broadcasting” as “any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus”. Two exceptions are provided. The first excludes transmissions “made on the demand of a particular person for reception only by that person”. The second excludes transmissions “made solely for performance or display in a public place”.

There are no other exceptions.

“Broadcaster” simply means “a person who broadcasts programmes.” It does not require a licence, a studio, a frequency or a media company. It requires only that a person transmit programmes. No distinction based upon such things is grounded in the text of the legislation.

The Authority has decided that “other means of telecommunication” includes sending live content over the internet.

This means that a funeral director who livestreams on a public link is a broadcaster. A church that streams Sunday mass is doing the same. So is a business running a live webinar, a community group streaming an event, or a school doing the same for a prize-giving for parents who cannot attend.

None of these transmissions are made “on the demand of a particular person for reception only by that person”. They are scheduled, live and available to anyone who navigates to them.

The first exception does not apply. Nor does the second. The Act provides no further exclusion.

The phrase “for reception by the public” is the only remaining candidate in the statutory text for a limiting principle. But “the public” in broadcasting law has never been confined to mass audiences. A congregation is a segment of the public. So is a group of mourners, or a webinar audience.

Unless a stream is genuinely restricted to named individuals by private invitation, it is impossible to read “for reception by the public” as excluding it. And even password protection would not necessarily assist, since the Act covers encrypted transmissions expressly.

One further textual element deserves mention. The definition requires that programmes be received “by means of broadcasting receiving apparatus”. It might be argued that a laptop or smartphone is not such apparatus. But that argument is fatal to the Authority’s position as a whole. If a phone is not broadcasting receiving apparatus, then The Platform is not caught either.

However much it may wish to do so, the BSA cannot rely on a broad reading of that phrase to capture the entity it wishes to regulate and a narrow reading to exclude those it does not.

Let’s think this through.

Section 6(1)(ba) of the Act requires every broadcaster to broadcast notices publicising the complaints procedure. This must occur at least once per day of broadcasting, at different programming times including prime time. A funeral director who livestreams services would, on the Authority’s logic, be required to interrupt or accompany those streams with complaints procedure notices.

The absurdity of that outcome is not a reason to dismiss the argument. It is a reason to doubt the interpretation that the BSA has adopted.

The Authority appears to recognise the implications of its reasoning. It attempts to soften them by suggesting that “personal online content posted or livestreamed by individuals” falls outside its jurisdiction. The statement is offered without analysis or statutory footing.

It is not, in truth, an exclusion. It is a conclusion asserted without reasoning. Nothing in section 2(1) turns on whether a broadcaster is an individual or an organisation, or whether the content is “personal” or editorial. The Act defines a “broadcaster” as “a person who broadcasts programmes”. “Person” in New Zealand legislation includes both natural persons and bodies corporate.

The definition does not distinguish between media companies and personal online content. Both are persons broadcasting programmes. And the distinction would offer no comfort to churches, schools, or funeral directors — they are not individuals posting personal content, yet they are equally far from the kind of media outlet the Authority plainly has in mind.

The decision does not identify any limiting principle in the Act that would separate The Platform from any of the other examples I have given.

Instead, the Authority says it “has not found” jurisdiction over individuals. Notice the double negative. It didn’t say it “does not” have such jurisdiction. There is no actual suggestion that the statute draws a boundary so much as that the Authority has chosen not to pursue the question.

But that is not how statutory interpretation works. If the Act means what the Authority says it means, then the distinction between different forms of livestreaming must be grounded in the text. If no such distinction can be identified, then the interpretation is too wide.

The problem deepens when the Authority turns to the consequences of its decision. It asserts jurisdiction over online livestreaming as “broadcasting”, but says it will not seek to extend levy and publicity requirements to online providers “at this time”. That is presented as a pragmatic, transitional approach.

What? The Authority does not have the power to switch parts of the Act on and off like a fuse box. Parliament has enacted a scheme that attaches obligations to the status of being a broadcaster. Nowhere in the Act did Parliament say these obligations would be subject to the whims of the BSA.

No one doubts that regulators may exercise judgment in how they allocate enforcement resources. Every regulator prioritises. A decision not to investigate a particular complaint, or to focus limited resources on the most serious breaches, is an ordinary and lawful exercise of discretion.

That is not what appears to be happening here. The Authority is not saying it will deprioritise enforcement of the levy provisions against smaller online broadcasters. It is saying it will not apply those provisions at all “at this time”.

That looks less like prosecutorial discretion and more like a blanket suspension of statutory obligations for an entire class of entities that, on the Authority’s own reasoning, are subject to them.

That point was settled long ago. In Fitzgerald v Muldoon, the Prime Minister announced that a statutory scheme would not be enforced pending repeal. The Court held that this amounted to an unlawful suspension of the law, contrary to the Bill of Rights 1688.

The principle is this: Parliament makes the law, and the executive must apply it. It cannot suspend or dispense with statutory requirements because they are inconvenient or impractical.

The Broadcasting Act is no different. If an entity is a broadcaster, it must comply with the reporting and levy provisions. The Authority has discretion in how it enforces those obligations (which complaints to prioritise, where to focus its resources, how firmly to pursue compliance in any given case) but it has no power to determine that those obligations will be suspended as a matter of principle.

It really looks like the BSA just wants to enjoy the benefits (as it sees them) of an expanded jurisdiction without accepting the burdens that Parliament has attached to it.

The Authority may well be right that the Broadcasting Act is outdated. Many have said so for years. But the remedy for an outdated statute is amendment by Parliament, not reconstruction by a regulator. And certainly not like this.

If online livestreamers are to be brought within a regulatory regime, that regime should be clearly defined and democratically enacted. It must specify who is covered and what obligations they bear. It must also confront the practical consequences of regulating a vast and diffuse category of speakers.

Until that happens, the Authority faces a straightforward choice:

Either its expanded definition is correct, in which case the full statutory machinery applies, awkward parts included; or the definition is wrong, in which case its jurisdiction does not extend as far as it claims.

What it cannot do is assert a sweeping interpretation of “broadcasting” while assuring the public that the consequences of its finding will be selectively ignored.

This whole time, the Authority has said that it is merely trying to apply the Act to new technologies by adopting a purposive interpretation. A genuinely purposive approach would appropriately weight the consequences of the interpretation. All of them.

It would confront the fact that its reading of the statute draws churches, funeral directors, and school principals into a regulatory regime designed for television and radio networks. It would consider whether that might indicate the law was aimed at the regulation of scarce broadcasting spectrum rather than a decentralised, boundless medium that anyone can easily use. And, at the very least, it would explain why the statutory language supports a distinction between those entities and The Platform, or it would acknowledge that no such distinction exists and accept what follows.

But instead we have what looks like the work of a regulator that has identified a particular form of media outlet it wishes to bring within its reach and has tailored its reasoning narrowly to achieve that end, ignoring the inevitable consequences.

Not good.

Coda: I have always had a certain fatalism about what elected politicians can realistically be expected to do. But I have never been closer to asking “why bother voting for National?” than at moments like this. The government could put the BSA back in its box tomorrow. A one-line amendment clarifying that internet streaming is not broadcasting under the 1989 Act would do it.

It would also fire a warning shot across the bows of other administrative empire-builder tempted to stretch an old statute beyond recognition rather than wait for Parliament to act. Instead, we get silence. It is dispiriting.