Peter Thompson
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 Now outdated, this is what makes the BSA’s manoeuvre unprecedented and therefore so contentious.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 a 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 $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.
Peter Thompson is an Associate Professor in Media and Communication at Te Herenga Waka — Victoria University of Wellington
The above first appeared in The Conversation and is republished with permission.
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The preliminary decision in the Platform complaint has raised a question of jurisdiction. Suggesting that the best approach to dealing with this jurisdiction question, which arises at a systemic level, is by using a complaint as a ‘test’ case is misconceived. Moreover, it cannot be justified by referring to the BSA’s statutory function to uphold media standards, since that is to put the cart before the horse.
The BSA did not have to wait for a complaint if, as it seems from its 2020 review, it has thought for some time that the scope of its jurisdiction in the context of on-line content is uncertain.
Solutions would be for it to resort to parliament again, or to apply under the Declaratory Judgments Act 1908. Section 3 of the Declaratory Judgments Act contains its own threshold for jurisdiction: it provides that any person who has done or desires to do any act, the legality of which depends on the construction of any statute or any regulation or to have a right under any statute or regulation or to be otherwise interested in the construction or validity of a statute or regulation, may apply to the High Court for a declaratory order determining any question as to the construction or validity of the statute or regulation. The Supreme Court held in Mandic v Cornwall Park Trust Board Inc [2011] NZSC 195 that “access to the jurisdiction does not depend on there being an existing dispute. Nor is it necessary that there be a lis”. Such an application could involve interveners, and the question could be given a full airing.
Making a free speech martyr out of The Platform is all the BSA is going to achieve (particularly as it is acting on what can fairly be described, in the context of the scope of media freedom of opinion, to be a flimsy complaint). If someone described a set of western, say British or Irish, cultural rituals and beliefs as mumbo jumbo would the BSA show the slightest interest? I doubt it.
Where a regulator questions its own jurisdiction at a fundamental and systemic level it seems quite wrong for it to inflict the cost of this uncertainty on a particular party, particularly when the regulator has been consistently thought to lack jurisdiction of such on-line content.