Is the BSA going too far — or just doing its job?
Thursday, 16 October 2025
A former District Court judge and media law expert says the Broadcasting Standards Authority would be wrong to assert its jurisdiction over internet media networks, and should be stopped by the Government.
But it’s clear the issue won’t go away anytime soon, with free speech groups and politicians - including the deputy prime minister - weighing in to condemn the media watchdog.
It was revealed yesterday that the BSA had issued a draft decision claiming authority to consider a complaint against The Platform, a digital broadcaster founded by Sean Plunket.
The BSA told The Post this was the first time it had considered a complaint against a digital provider, but believed its actions were within the bounds of the Broadcasting Act.
David Harvey, a retired judge and former University of Auckland media law lecturer, said he thought the BSA had got it “absolutely” wrong.
“If you're going to set up a regulatory structure, the legislature [parliament] should do it. It shouldn't just be assumed by the Broadcasting Standards Authority, who adopt what they describe as a purposive interpretation of their act, which, of course, to me, means the words mean what I say they mean. It’s real Humpty Dumpty, Alice in Wonderland stuff,” he told The Post.
Harvey believed the decision could set a precedent, and would open up a can of worms that needed to be tidied up.
“At the moment, they're talking about internet-based platforms like The Platform and Reality Check Radio … that is sort of traditional broadcasting, plugged into the internet. But … what happens if I decide that I'm going to run a live stream of me working, and people can phone in and say, ‘what are you working on’?
“Does that amount to a broadcast? Arguably, it could. And all of a sudden I would have to submit myself to the tender mercies of a Wellingtonian bunch of bureaucrats. No, thanks.”
The BSA’s chief executive, Stacey Wood, pushed back saying the authority did not “agree” that this complaint would set a precedent binding on every producer of video and audio content in New Zealand.
“Our view is that online broadcasters that resemble traditional TV or radio stations clearly fall within the scope of the Act,” Wood said.
“We do not believe individuals livestreaming via their social media accounts can be considered broadcasters as defined by the Act.”
However, Wood acknowledged that how the Act could apply to some other forms of online media would be less clear-cut.
“For example, there’s nothing in the Act that says it applies only to broadcasters in New Zealand – but we have no intention, or ability, to apply our jurisdiction in a blanket fashion to broadcasters worldwide.”
A grey area
While Harvey was of the view that the BSA would be overstepping its boundaries by asserting jurisdiction over internet broadcasters, not all legal experts shared that belief.
The BSA, in a response to questions by The Post, shared a link to an alternative opinion by media law expert Steven Price.
On his Media Law Journal blog, he wrote that the BSA was “just doing its job” by considering the complaint against The Platform.
“I can’t see any reason why the BSA’s general Codebook wouldn’t apply to The Platform,” he wrote.
“It’s true that internet radio wasn’t around when the Broadcasting Act was passed. But the definition of broadcasting isn’t restricted to old-style formats.”
But Harvey believed the Government may have to intervene if the BSA pushed ahead with its proposal.
“I think it would have to, in some way, because it would have to set some kind of metes and bounds to it.”
Wider reform in the spotlight
The wider issue at play is whether the BSA in its current form is fit for purpose.
Wood told The Post that the “best and clearest solution” to the current issue was wider legislative reform of media regulation.
“Several proposals have come and gone over the years but we still hope to see a legislative solution that delivers modern, platform-neutral and system-level regulation of professional media,” she said.
“People accusing us of targeting The Platform are missing a key principle of the Act. We can only investigate if a complaint is made to us, and the Act says we have to take on every complaint that comes to us if it meets the requirements.
“Is that the best and most efficient system of media regulation? Perhaps not, but it is what the Act says.”
The Taxpayers’ Union said the Government should be looking at whether the BSA remained necessary “in its current form”.
“Spending $1.6 million a year on just nine staff is a big price tag for a small agency,” a spokesperson said. “Expanding its reach to online media would not only threaten free speech, it would double up on what’s already covered by the Media Council and the Harmful Digital Communications Act. Taxpayers shouldn’t be footing the bill for another layer of bureaucracy we don’t need.”
Politicians, too, have weighed in. Wood confirmed that Broadcasting Minister Paul Goldsmith was alerted to the draft decision in line with the no surprises policy, though Goldsmith wasn’t willing to say much due to this being an “operational matter” for the BSA.
However, ACT leader David Seymour and New Zealand First leader Winston Peters both took issue with the BSA’s move. Seymour said parliament had “never asked” the BSA to police the internet, while Peters accused the authority of “Soviet era stasi” censorship.
(On LinkedIn, Wood said that call was a “tad on the dramatic side”).
Labour’s media spokesperson, Reuben Davidson, told The Post that legislative reform was necessary.
“The existence of social media platforms was not factored in when ‘broadcast’ was defined in various Acts. Legislation needs to be updated to ensure current affairs programmes are covered by standards no matter where the play button may be – on a remote, a podcast or a screen.”
Wood said politicians were welcome to have a view on the authority and “we’re open to discussing our position with them while maintaining a focus on carrying out our duties as a responsible independent regulator in applying the legislation, as it stands, to the current environment”.
David Harvey said the BSA appeared to be leaning towards incorporating aspects from a proposed plan to establish a one-stop shop regulator that would have oversight for all forms of media, including on the internet.
The Safer Online Services and Media Platforms proposal was abandoned by the DIA last year.
Said Harvey: “If [the BSA] widen the scope, then what they're doing is introducing significant aspects of the Safer Online Services and [Media] Platforms paper by the back door. The Government said that's not going ahead, but the BSA is saying, ‘Oh yes, it is’. It mightn't be quite as wide as the DIA proposed, but it's still going ahead in a certain way, and we're going to assert jurisdiction and we're going to enforce it.”
Free speech debate
Meanwhile, battlelines have been drawn over the issue of free speech.
Plunket, speaking to The Post on Wednesday, said he would not be censored by the BSA and suggested it was an effort to control free speech - an assertion strongly rejected by the authority.
“You will not censor me, and you will not rob me, my hosts, my audience and my guests of their rights under the Bill of Rights of association and freedom of speech,” Plunket said.
Paul Thistoll, the chief executive of Rights Aotearoa, commended the BSA for taking action to close a “regulatory gap” that had allowed “hate speech and discriminatory content to flourish unchecked”.
He continued: 'This isn't about limiting free expression – it's about ensuring broadcast standards apply equally regardless of transmission method.
“Trans, non-binary, and intersex New Zealanders deserve the same protections from harmful broadcast content that encourages discrimination against them, whether it reaches them via television or internet stream.“
In a statement on Wednesday Jillaine Heather, chief executive of the Free Speech Union, called the BSA’s actions “mission creep” to police types of broadcasting it was never designed to monitor.
“Who gave the Broadcasting Standards Authority the power to determine what Kiwis can and can’t say online?”
A question that politicians, academics and experts will no doubt be forced to further grapple with in the weeks ahead.