I asked the BSA if they had ever asked an Internet based media outlet (such as The Platform or Reality Check Radio) to file an annual return with them, or broadcast a daily message of 15 seconds about the BSA complaints procedure. These are both statutory (ie mandatory) requirements of broadcasters under the Broadcasting Act. They replied (and credit to them – within 24 hours, not the 20 days they had) and said they have not.
This is not defensible. If the BSA thinks these platforms are broadcasters they should have years ago approached them and told them of these requirements. The BSA is basically saying they will define these platforms as broadcasters for the purposes of complaints, but not for other purposes. You can’t pick and choose.
Their “policy” of waiting for a complaint to then decide is a legal nonsense. The Broadcasting Act requires compliance regardless of complaints. Not filing an annual return is a $100,000 fine.
So not only is the BSA on shaky grounds legally, they are on even worse grounds in terms of fairness. The BSA has never reached out to Internet platforms to say we consider you bound by our codes. But now they are saying we may consider a complaint which finds you in breach of them – and we could fine you or order you off the “air”. This is basically entrapment.
If a media outlet knew they were bound by the BSA codes, then they might operate quite differently. But to not tell them in advance you consider them bound by the BSA codes, and then decide in a secret meeting that they are bound and you will consider if they are complaint is again against all natural justice.
Now the leaders of ACT and NZ First came out and made very clear they were appalled by what the BSA is trying to do. But sadly the Minister is not only not appalled, he even seems to be supporting them. Mediawatch reported:
“That’s in the media reform package that went out for consultation… and the government’s yet to make final decisions. But in the meantime the BSA is out there with what it considers is within its current ability to do,” Goldsmith told Mediawatch this week.
“There’s a lot of noise about it at the moment. Of course if you’re in the sector you want to draw attention to yourself and so a lot has been said. I don’t think our democracy is under threat, but it’s an interesting little exercise.”
“I think there’s a very small group of people in that category. They’re within their rights to test that and it may well go before the courts. I’m happy to let that flow through the system and see how it goes.”
So the Minister has said he sees no problem with the BSA taking an Internet media company to court to test things. Never mind that the $100,000 cost of defending this power grab in court would probably bankrupt the media organisation which run on a smell of an oily rag.
And here is where the politics is daft. trust in legacy media keeps dropping. Those on the centre right of politics especially thinks they do not get a fair go from legacy media. Taxpayers fund state broadcasters such as Radio NZ and Maori TV which are overwhelmingly hostile to centre right beliefs. But there has been some light for those on the centre right – the Internet. The Platform, Chris Lynch, RCR etc have found a niche where issues that are taboo for other media can get reported on and discussed. And now we have a government quango, with the apparent support of the Minister, doing their best to destroy them. Because make no mistake bringing them under the BSA would destroy them. They would face scores of complaints every week from activists who hate the fact they exist.
And this is (in my opinion) part of why National is losing support to other parties on the centre right. They simply don’t seem to care. How do you explain to a National Party voter who likes listening to The Platform why they should still vote National instead or NZ First or ACT, when those two parties are saying no to the BSA power grab, and National is a silent accomplice?
National needs to focus on improving the health system, schools, the economy etc to win centre votes. But unless they want to be in a government where they have no List MPs because they lose so much support to ACT and NZ First, they need to not be dismissive of issues like this.
In no way should National be making the BSA issue a major issue they spend a lot of time on. But what they could do is simply have a senior MP or Minister clearly state:
- It is up to Parliament to change the definition of a broadcaster, not the BSA
- That as the BSA has never asked any Internet based media outlet to file annual returns or publicise the BSA complaints procedure, they can’t suddenly declare via a secret decision that such an organisation is in fact a broadcaster
UPDATE: Good news. I missed it yesterday but it seems the PM was asked about this issue at his post cabinet press conference and three times he said that he thought this was overreach by the BSA. Great to see the PM aware of this issue, and being very clear that he sees it as overreach. I hope the BSA is listening – this now means the PM, Deputy PM and NZ First Leader have all said this is overreach.
David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders
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