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.
I have asked Crown Law if the BSA ever got a legal opinion from them over their decision.
If there is genuine ambiguity about whether an internet stream is “broadcasting” under the Act, NZBORA requires the interpretation that favours freedom of expression. The BSA’s favoured interpretation brings The Platform under a regulatory regime that can sanction or censor content after the fact. That certainly impacts freedom expression.
This is a key aspect, and affects not just The Platform. If I do a podcast, the BSA could try to censor what I say on a podcast, fine me for it, for even demand the podcast cease for a period of time.
Chris Lynch writes:
The BSA’s claim that it has jurisdiction over digital-only content is legally indefensible. In a provisional ruling, the Authority declared that “broadcasting receiving apparatus” now includes computers and mobile phones, and that “other means of telecommunication” includes the internet. In doing so, it has effectively rewritten the Broadcasting Act without the consent of Parliament.
It is Parliament’s job to change the law, not the BSA’s.
When this matter came to my attention it piqued my interest. I taught Law and IT as well as Media Law part-time for 18 years at Auckland Law School. This was familiar territory to me.
There are some problems with the approach that the BSA has adopted. …
The starting point in that discussion is the Law Commission report of 2013. I have indicated the relevant passages from the report after each statement
The report observed that the BSA has jurisdiction over traditional broadcast content, including radio and television, as defined under the Broadcasting Act 1989. (para. 8.6) However, its jurisdiction does not extend to online-only content, such as internet radio or on-demand streaming services, unless the content is also broadcast in a traditional format. (para 4.4)
So the decision by the BSA is contrary to the view of the Law Commission.
All radio transmitters in New Zealand must either be licensed by a radio licence, spectrum licence or general user licence, or have an exemption from licensing Broadcasting Standards Authority. You need a broadcasting licence if you want to broadcast on radio or television in New Zealand.
Does The Platform have a broadcasting licence? No, because they clearly are not a broadcaster.
From a procedural point of view the BSA has made a significant error. Although it describes its decision as a provisional interlocutory decision what it should have done was notified the Platform that it had received Mr Fanselow’s complaint which raised a jurisdictional issue. It should have called for submissions from the Platform as well as from Mr Fanselow (or perhaps an amicus curiae and indeed other interested parties) as to whether the BSA had jurisdiction.
After it had heard such argument it could have made an informed decision giving full reasons.
Yes, they made a secret in principle decision rather than call for submissions on the wider issue.
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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