‘Soviet-era Stasi’ or defender of media freedoms? The battle for the Broadcasting Standards Authority

The decision by the Broadcasting Standards Authority (BSA) to formally consider a complaint about something Sean Plunket said on The Platform has now spun well beyond the complaint itself.

At the centre of the controversy is not so much the question of whether it was racist for Plunket to refer to Māori tikanga as “mumbo jumbo”, but whether the Broadcasting Act affords the authority jurisdiction over online content providers like The Platform.

Plunket insisted he would not be “censored” by “corrupt or incompetent […] Orwellian bureaucrats”, and rejected the claim that The Platform could be considered a broadcaster under the act.

Various sympathisers offered their support. NZ First leader Winston Peters accused the BSA of acting “like some Soviet-era Stasi”. Kiwiblog’s David Farrer accused the BSA of a “secret power-grab” and called for its abolition.

And ACT MP Todd Stephenson called it “a textbook example of a public agency trying to rewrite its own job description […] dismissing freedom of choice, and disregarding the boundaries of its democratic mandate”.

The criticism hinged on how the 1989 Broadcasting Act defines broadcasting. Now outdated, this is what makes the BSA’s manoeuvre unprecedented and therefore so contentious.

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”. But it excludes on-demand services and public performances.

Thus far, this has limited the BSA’s jurisdiction to radio, free-to-air TV, pay-TV, and online content that has also been broadcast (including some material on Sky’s Neon).

The Platform’s provision of live online audio streaming (plus video for subscribers), much in the style of a radio broadcast, seems to be the pretext under which the BSA considers it potentially within its jurisdiction.

The Platform as test case

Efforts to overhaul the legislation go back two decades. But successive governments have failed to implement more than incremental amendments.

The BSA itself undertook a consultation with broadcasters in 2019 to explore how to respond to online content, then published its response in 2020.

More recently, the Ministry for Culture and Heritage consulted on a range of media reforms, including a proposal for modernising professional media regulation. In theory, this could extend the BSA’s oversight to some online media. As the BSA has explained:

Our published policy since 2020 has been that, if we receive a relevant complaint and there’s no other applicable standards body or regulator, and if the complaint raises issues of public interest or a risk of harm, we may accept the complaint and engage with the parties using our established processes.

Rightly or wrongly, the BSA’s “draft interlocutory decision”, issued to The Platform for comment, follows from this policy.

So, has the BSA decided to unilaterally rewrite the Broadcasting Act? Or is it trying to fulfil its legitimate remit by interpreting the purpose of the act in the modern digital context?

By advancing its claim to hear the complaint about The Platform, the BSA may be seeking to set a legal precedent that will establish its jurisdiction over broadcasting-like online services.

Or, if it is denied that, it might still increase pressure on the government to expedite its proposed revisions of the act.

The Platform’s displeasure at becoming a test case is perhaps understandable. But calling for the abolition of the BSA is surely misconstruing what is really at stake.

Holding media power accountable

The BSA is not a censor. In fact, suppressing or deleting illegal material falls under the purview of the Classification Office. The broadcasting standards regime is actually intended to uphold freedom of expression within a framework of standards to minimise harms.

As the BSA confirms, only 7% of complaints over the past three years were upheld, and very few have merited a fine or other sanction (the maximum fine is NZ$5,000, not $100,000 as Plunket has suggested).

Consider the standards covered in the Broadcasting Code: offensive and disturbing content, children’s interests, promotion of illegal or antisocial behaviour, discrimination and degradation, balance, accuracy, privacy and fairness.

Far from being the tools of a Stalinesque state, these are the principles upon which a functional media system in a democracy is premised. In fact, the BSA standards are developed and reviewed in consultation with industry and the public.

The specific codes evolve over time in response to changing audience attitudes (for example, tolerance for strong language), media practices and technologies.

The BSA standards are therefore not randomly imposed by an “Orwellian” bureaucracy. They reflect professional industry practices, community values and the public interest.

Regulatory measures that uphold fundamental standards such as balance, accuracy and fairness do not undermine democracy and freedom of expression, but underpin it. One might disagree with the BSA’s decisions, but such standards should not be discarded lightly.

Those who decry any and all media regulation as an affront to personal liberty and free speech need to consider the alternative – a commercial free-for-all in which the powerful interests which control media platforms can employ them to disseminate propaganda, disinformation or hate speech with impunity.

The BSA may not be perfect, but the principle that media operators should be held accountable – not to government, but to the public interest – is sound.