The BSA Has Logged On

Why wait for Parliament when you can simply empower yourself?

Photo by Nopparuj Lamaikul on Unsplash

The Broadcasting Standards Authority has indicated to talkback host Sean Plunket that his online platform, which is called, uh, The Platform falls within its jurisdiction. In other words, the BSA believes he engaging in “broadcasting” as defined by law, even though it operates via the internet.

The move is not out of the blue. It is a stance the BSA first outlined in 2019, when it argued that certain internet-based content can be treated as broadcasting under the Broadcasting Act 1989. Now that it seems to want to act on this expanded conception of its mandate, it is worth questioning whether the BSA is correctly applying the law’s purpose to new technology, or whether it is stretching definitions in a self-serving bid to expand its powers to control (and censor) content.

The Broadcasting Act 1989 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.

Back in 2019, the BSA emphasised the “other means of telecommunication” part and took it to encompass internet delivery.

What kind of online content did the BSA have in mind? The 2019 paper sketched out examples. It concluded that linear or livestreamed programming delivered over the internet (essentially, content that “plays” continuously to an audience, as opposed to being individually selected on-demand) should be considered a broadcast. The best examples of this would be an internet-only radio stream running live talkback shows, or a webcast of scheduled video programming. The BSA contrasted this with on-demand content (like a Netflix show or a YouTube video you click to play).

The BSA expressed concern that as technology evolves, more content would be delivered online in ways similar to traditional broadcasts. And to justify its position on this, it argued that the “always-speaking” principle of statutory interpretation then set out in s 6 of the Interpretation Act 1999 applies.¹ In other words, the idea of what is a “broadcast” should not be frozen in 1989 so that if you operate something akin to a radio or TV service over the internet you will be considered a broadcaster for legal purposes.

This brings us to The Platform, which Sean Plunket launched in 2022 explicitly as an online-only talkback station, free from traditional media oversight. In fact, it has been a selling point that, unlike Plunket’s old employers, it operates without interference from government regulators.

Recently, however, a listener’s complaint about The Platform forced the issue. The complainant, unhappy with something said on Plunket’s show, attempted to invoke broadcast regulation. The Platform’s initial response was dismissive, reflecting the common understanding that an internet stream isn’t a regulated broadcaster.

But it seems the BSA takes a different view. In a provisional decision on that complaint, Plunket says the BSA is of the view that it does have jurisdiction over The Platform’s content.² The Authority reasoned that The Platform’s live, linear talkback meets the Broadcasting Act’s definition of ‘broadcasting’ if one takes a “purposive” approach the Act.

This means The Platform would be obliged to comply with broadcasting standards and could face BSA sanctions if it breaches them.

Now, the Broadcasting Act’s purpose (broadly speaking) is to maintain standards in broadcasting and protect the public from harmful or offensive content on the airwaves. The BSA argues that this purpose would be undermined by a narrow reading of “broadcasting” that only covers legacy technology (traditional radio and TV) and therefore we should take the word to mean “the conveyance of information to a wide range of recipients.”

In other words, they see “broadcasting” as a technology-agnostic concept. If you’re distributing content to a broad audience simultaneously, you are broadcasting. Whether it’s via a radio transmitter, satellite feed or internet stream is irrelevant.

This approach is called a purposive interpretation, which refers to reading the law in light of its purpose or objective, rather than strictly literally or in the narrow context of when it was passed. The BSA says that Parliament’s expectation was that its standards would apply to “content that is made readily available to a wide public audience”.

In their view, excluding internet broadcasts would create a loophole undermining the law’s intent (more on that later).

The BSA noted that the Act’s definitions do not explicitly limit broadcasting to radio or TV and that therefore, “it is incumbent on the BSA to ensure we take a purposive approach” in interpreting our responsibilities.

However, what is claimed to be a purposive reading often proves to be a tendentious one. Entities like the BSA have an interest in expanding their domain. As I have written before, there is a serious humility deficit in New Zealand when it comes to servants of the state interpreting their own mandates.

It is also important to remember that in recent years there have been policy discussions about whether New Zealand’s media regulators should be reformed or merged to cover digital media (since more people get content online now, and the lines between traditional and online media have blurred). The previous government floated a “one-stop-shop” regulator for all media, for example. Ultimately it did not enact it, however, in part due to public concern about overregulation of online speech.

So lawmakers have looked at the gap and thought about the fact that what you watch or listen to on the internet may not be subject to any official standards regime. And, so far, they have decided to leave that gap in place. If the legislature considered and declined to extend the Broadcasting Act to the internet, should an appointed Authority do it via creative interpretation?

Against that backdrop, the BSA’s unilateral move to assert authority over internet content really does look like it’s driven by policy rather than any compelling legal reasoning.

But if push comes to shove, who should prevail?

Everything hinges on definitions in the Broadcasting Act 1989. Circling back to that remember that “broadcasting” (in part) is defined as: “any transmission of programmes… by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus.”

On first glance, this does seem broad. After all, it explicitly mentions “other means of telecommunication” beyond just radio waves.

However, the definition also refers to “reception” by “broadcasting receiving apparatus”. Accordingly, to be a broadcast, the transmission needs to be intended for reception on such apparatus. The Act does not define “broadcasting receiving apparatus” but we can quite naturally assume it meant a television set or a radio set, which are devices with tuners capable of picking up broadcast signals through the air.

Of course, in 1989 such devices were capable of receiving transmissions via cable and satellite. That would neatly explain the reference to “other means of telecommunication” and cut against the idea that Parliament intended a completely open-ended definition.

On the other hand, the BSA’s approach is to interpret “broadcasting receiving apparatus” in an extremely open-ended way. In short, if a device can receive any one-to-many transmission is a broadcasting receiver then any smartphone or laptop falls within the definition. Which means that any Zoom webinar or Twitch stream open to the public could be seen as a broadcast.

To support this expansive view of its own authority, the BSA looked beyond the statute to general definitions. In the 2019 document, the BSA cited a generic definition of “to broadcast” from a tech marketing firm website glossary. The Authority’s paper footnoted the definition “to broadcast (verb) is to cast or throw forth something in all directions at the same time.”

While that is indeed the broadest conceivable definition of “broadcast,” it’s telling that the BSA reached for it. More authoritative sources, like common dictionaries, often define broadcasting in a way that ties it to radio and television contexts.

For example, Collins English Dictionary says: “To broadcast a programme means to send it out by radio waves, so that it can be heard on the radio or seen on television.” The Cambridge Dictionary similarly defines “broadcast” as “to send out a programme on television or radio.” The Wikipedia entry on broadcasting notes that it typically involves “distribution of audio or audiovisual content to dispersed audiences via an electronic mass communications medium, typically using the electromagnetic spectrum (radio waves).”

These plain meaning definitions reflect the prevailing understanding of “broadcasting” around the time the law was made, which was an era when broadcasting was inherently linked to the use of the electromagnetic spectrum (radio waves) to reach the public.