Abstract

This article develops five main lines of criticism of the BSA decision

1. “Telecommunication” is not a blank cheque. The BSA’s plain-meaning reading of the term is superficially plausible but ignores the coordinated legislative architecture of the Broadcasting Act and Radiocommunications Act, enacted together as a system for regulating spectrum-based content. The “always speaking” doctrine (relied on by Lowndes Jordan) requires conceptual similarity — and RCR’s submissions expose the weakness there.

2. The On Demand Exception is interpreted out of existence. The BSA acknowledges a “technical argument” supports The Platform’s position and then dismisses it on purposive grounds alone. The article argues this inverts the proper approach: The Platform correctly argued the exception concerns the transmission, not the programme, and each internet transmission is individually user-initiated — which is the textual trigger for the exception.

3. The NZBORA analysis is perfunctory. Drawing on The Platform’s Hansen v R argument, the article contends that the Authority failed to properly ask whether extending the regime to online speech by interpretive expansion — rather than legislation — is a demonstrably justified limitation under s 5 NZBORA.

4. Institutional legitimacy. The BSA’s own conduct over two decades (no levies, no online code, paused reviews) is difficult to reconcile with its claim that jurisdiction was always clear. A High Court declaration would have been the appropriate vehicle.

5. The regulatory gap belongs to Parliament. The article acknowledges the public interest case for regulation but argues only legislative action can legitimately resolve it.

Introduction

The Broadcasting Standards Authority’s interlocutory decision in WK v The Platform Media NZ Ltd (Decision No. ID2025-063, 31 March 2026) has attracted controversy for good reason. In finding that it has jurisdiction to regulate The Platform’s internet livestream under the Broadcasting Act 1989, the Authority has made an interpretive leap that is difficult to reconcile with the text of the Act, its legislative history, and basic principles of statutory interpretation.

The decision is not, as some have portrayed it, a straightforward application of a purposive approach to a technologically evolving medium. It is a significant — and arguably ultra vires — expansion of regulatory power that raises serious questions about institutional overreach, rule of law, and the proper role of an administrative tribunal.

This article argues the Authority’s decision is wrong on three principal grounds: its treatment of the term “telecommunication”, its dismissal of the On Demand Exception, and its casual handling of the New Zealand Bill of Rights Act 1990 obligations. There are two related grounds for objection – the whether the BSA had the legitimacy to make the decision that it did and finally that the issue of jurisdiction is a matter for Parliament rather than the BSA acting as a Judge in its own cause.

This article draws on the decision itself, submissions of The Platform (through Franks Ogilvie) and the intervener NZ Media Holdings 2023 Ltd (trading as Reality Check Radio), as well as the legal opinion commissioned by the Authority from Lowndes Jordan — a document that, ironically, itself illustrates some of the weaknesses in the Authority’s reasoning.

1. The Plain Meaning Problem: “Telecommunication” Is Not a Blank Cheque

The Authority’s first analytical task was to determine whether internet livestreaming constitutes transmission by “other means of telecommunication” within the Broadcasting Act’s definition of broadcasting. It concluded it does, relying on a plain English reading of “telecommunication” as a broad, expansive term.

This approach is more superficially appealing than it is analytically rigorous.

The Authority correctly notes that the Broadcasting Act 1989 was enacted alongside the Radiocommunications Act 1989 and was preceded by the Telecommunications Act 1987.

But it then uses this statutory family to argue that “telecommunication” must be read broadly enough to encompass internet packet delivery. This reasoning glosses over a fundamental point made by RCR in its submissions: the Broadcasting Act and the Radiocommunications Act were enacted together as part of a coordinated reform package precisely to separate spectrum regulation from content regulation.

The Radiocommunications Act regulated the resource — radio spectrum — while the Broadcasting Act regulated what was delivered through that resource. The definition of “broadcast” in the Radiocommunications Act cross-references the Broadcasting Act for good reason. The two Acts were conceived as a system.

The Authority dismisses the significance of spectrum, noting that the word does not appear in the Broadcasting Act and that “radio waves” in the definition is followed by the disjunctive “or other means of telecommunication.”

But this reasoning proves too much. The absence of the word “spectrum” does not mean the Act was indifferent to transmission technology; it means Parliament used a different vocabulary. The broadcasting definition in the 1976 Act was expressly confined to “wireless transmission... by means of Hertzian waves.”

Parliament deliberately broadened this language in 1989 — but to encompass cable, satellite and other then-emerging wired/wireless technologies, not the internet, which was barely a concept in New Zealand in 1989.

The Lowndes Jordan opinion, on which the Authority leans heavily, argues that “other means of telecommunication” must extend beyond radio and television because the Telecommunications Act 1987 regulated both wired and non-wired networks.

But this conflates the regulatory scope of the Telecommunications Act — which governed the infrastructure of telecommunications services — with the narrower question of what Parliament intended to bring within the broadcasting standards regime.

A fibre optic cable used to transmit a telephone call is a “means of telecommunication” in the infrastructure sense. That does not mean everything transmitted through such infrastructure is a “broadcast” within the Broadcasting Act.

RCR made the further point, not adequately addressed by the Authority, that internet content delivery is fundamentally different in architecture from traditional broadcasting.

It relies on packet-switched IP protocols, content delivery networks, and individualised stream delivery — a one-to-one model at the technical level, even when many users receive similar content. The Authority’s response — that technical complexity does not alter the “essential nature or purpose” of transmission — is precisely the kind of conclusory assertion that statutory interpretation is supposed to interrogate, not assume.

The “always speaking” doctrine under section 11 of the Legislation Act 2019 does not license a tribunal to collapse meaningful technical and functional distinctions simply because a similar result (public consumption of content) is achieved.

As the Court of Appeal noted in R v Misic [2001] 3 NZLR 1 — relied upon by Lowndes Jordan — the doctrine requires conceptual similarity between the matters being compared. Spectrum-based linear broadcasting and internet content delivery are not conceptually identical. They share a consumer outcome, but differ fundamentally in their architecture, access model, and regulatory history.

The Authority also places weight on section 69(1) of the Act, which provides a narrower definition of “broadcaster” for Electoral Broadcasting purposes confined to television and radio broadcasters.

The argument is that this narrower definition would have been unnecessary if the main definition were itself limited to traditional broadcasting.

But RCR offered a compelling counter: the narrower electoral definition was inserted in 2017 to protect freedom of political speech in the electoral context, not because the drafters believed the main definition already swept in the internet. The significance of the electoral context — where speech restrictions are most sensitive — readily explains the more restrictive definition without supporting the inference the Authority draws.

2. The On Demand Exception: Interpreted Out of Existence

Perhaps the most analytically vulnerable aspect of the decision is the Authority’s treatment of the On Demand Exception.

Broadcasting, under the Act, excludes “any transmission of programmes made on the demand of a particular person for reception only by that person.” The Authority acknowledges there is “a technical argument” that internet transmissions are inherently on-demand — they require a user to navigate to a site and initiate a stream. It then dismisses this argument as inconsistent with the Act’s purpose.

This is an extraordinary piece of reasoning. The Authority has, in effect, acknowledged that a textually available interpretation supports The Platform’s position, and then set it aside on purposive grounds alone. That is not how statutory interpretation works, particularly when a restrictive or exclusionary provision is at issue.

The Platform’s submission through Franks Ogilvie put the point clearly: if the transmission (not the programme) is made on the demand of the recipient, it falls outside the broadcasting definition.

Internet architecture works precisely on the basis of user-initiated requests. When a user navigates to The Platform’s livestream and clicks “play,” they trigger a request to a server which then delivers a stream to their device.

This is not a passive receipt of a transmission that was already occurring regardless of their presence — it is a demand-initiated transmission.

The Authority’s response, that this is “functionally equivalent” to tuning a radio, confuses the consumer experience with the technical reality of how each medium operates.

In addition, the use of the “functionally equivalence” argument is a lazy and intellectually unsound way of disposing of a strong technical argument. In essence, “functional equivalence” is a multi-syllabic way of expressing the “if it walks like a duck and quacks like a duck it must be a duck.” This, of course, is an entirely fallacious approach which avoids the necessity of a deep and rigorous technical analysis.

RCR pressed this point further, noting that “each engagement remains an individual, user-initiated transaction” even where many users access similar content simultaneously.

The Authority counters that The Platform’s listeners “receive the same content as every other member of the public who is listening.” But this is a description of the programme, not the transmission.

The On Demand Exception, as The Platform correctly argued, concerns the transmission, not the programme. Each transmission to each user is individually requested and individually delivered. The content may be identical, but the transmission architecture is fundamentally different from a broadcaster sending a single signal into the ether.

The Authority seeks support in the Copyright Act 1994’s definition of “cable programme service” — which contemplated transmissions “in response to requests by different users” — suggesting the On Demand Exception was designed for subscriber-based cable, not internet delivery.

But this interpretive move, while ingenious, cannot bear the weight placed on it. The Copyright Act’s cable definition is not a contemporaneous gloss on the Broadcasting Act.

And the Authority’s further observation that Netflix and similar services are “likely” captured by the On Demand Exception (though declining to decide the point) makes the decision’s reasoning all the more unstable: if individual on-demand streaming of movies falls within the exception, it is not obvious why a user’s individual demand-initiated access to a livestream should not.

The Authority, in essence, has produced a reading of the On Demand Exception that renders it applicable only to truly private transmissions — emails and the like — while treating all publicly accessible internet content as broadcasting.

This is, as The Platform warned, an exceptionally expansive result with profound implications. YouTube creators, Twitch streamers, podcast producers and independent news websites would all, on this logic, be potential “broadcasters” subject to BSA jurisdiction along with livestreams of church services, funerals and indeed Parliament itself – although Parliament would invoke Parliamentary privilege to avoid the jurisdiction of the BSA. That said, given the BSA’s assumption of interpretative power in this case, one wonders if it would assert jurisdiction nevertheless.

The Authority waves this concern away by suggesting the number of entities in its new jurisdiction will be manageable — but that is a policy observation, not a statutory interpretation. The Act either applies or it does not. The Authority cannot invoke legislative purpose to expand the definition and then rely on its own discretion to contain the expansion’s consequences.

3. The Bill of Rights Act: A Perfunctory Analysis

The Authority devotes little analysis to its obligations under the New Zealand Bill of Rights Act 1990. It concludes there is “insufficient ambiguity” to invoke a NZBORA analysis, and that even if there were ambiguity, a reading that extends the broadcasting regime online would be a justified limitation on freedom of expression given Parliament’s documented intent to maintain robust standards.

This reasoning is inadequate.

The Platform’s submissions, drawing on the sequence of steps in Hansen v R [2007] NZSC 7, correctly note that a NZBORA analysis is not simply a tiebreaker to be invoked where ambiguity exists and then set aside because the Act was generally designed to restrict expression.

The orthodox approach requires the Authority to consider whether the particular application of the provision — extending a broadcasting standards regime to online speech — constitutes a justified limitation under section 5 of NZBORA.

The question is not whether the Act in general limits expression (of course it does), but whether extending that limitation to a new domain, through interpretive expansion rather than legislative enactment, is demonstrably justified.

This is a meaningful distinction. Parliament has not chosen to extend the broadcasting standards regime to internet content despite having had every opportunity to do so.

Successive governments from 2013 onwards have been aware of the “regulatory gap” identified in Law Commission reports and have not legislated to close it. The Authority itself paused its 2019 jurisdiction review in 2020 and has spent years calling for Parliament to update the Act.

In that context, the Authority’s unilateral resolution of the question — by interpretive fiat in the context of a single complaint — raises acute rule of law concerns that a NZBORA analysis cannot brush past.

The Lowndes Jordan opinion argues that because the BSA already balances NZBORA considerations in its decision-making, there is no need to read down its jurisdiction on rights grounds.

This circular logic would insulate any statutory expansion from NZBORA scrutiny, provided the body exercising the expanded power is itself bound by NZBORA. That is not how the rights analysis operates.

4. Institutional Legitimacy and the Limits of Quasi-Judicial Power

Beyond the doctrinal problems, the decision raises broader concerns about institutional legitimacy.

The Authority has been calling on Parliament to update the Broadcasting Act for over twenty years. It openly acknowledges there is currently no code of broadcasting standards for online content. It has not sought levies from online content providers. It has not issued any guidance specifically applicable to internet broadcasters.

And yet it now asserts jurisdiction over an online media entity based on an expansive reading of a 1989 statute — in the context of a specific, politically contentious complaint, after the complainant’s name was released and he received threats. But a tribunal’s jurisdiction cannot expand or contract based on the sympathetic nature of the complaint before it.

The Authority’s motivation to assert jurisdiction in this particular case is understandable although it would be reasonable to suggest that there is an element of peevish frustration that the Legislature has ignored requests for clarity.

The Authority’s reply to this concern — that it is simply applying the law as it finds it — is precisely the problem.

If the law genuinely covered internet broadcasting, one would expect the Authority to have acted on that position consistently over the past two decades.

Instead, it explicitly declined to seek levies from online providers and described its 2019/2020 position as provisional and subject to legislative reform. The now-abandoned policy of waiting for Parliament is difficult to reconcile with the claim that jurisdiction over online content was always clear under existing law.

The Platform’s submission put it plainly: the BSA should have sought a judicial determination on jurisdiction before proceeding, rather than resolving a major question of statutory interpretation through its own complaints process.

This critique has force. The High Court would have been the appropriate forum to determine whether internet livestreaming falls within the Broadcasting Act — with the benefit of full adversarial argument, access to expert evidence, and the authority to produce a ruling binding on all parties.

Instead, the Authority has produced an interlocutory decision on jurisdiction in the course of a specific complaint, with all the limitations that entails.

5. The Regulatory Gap Belongs to Parliament

None of this is to say that there is no public interest in regulating online broadcasting. The Platform’s talkback content reaches a substantial audience. The comments that prompted this complaint — described as “unacceptable racist” — are precisely the kind of content that broadcasting standards are designed to address. And the complainant’s experience, including having his name published and receiving threats, illustrates the real-world harm that can flow from unmoderated online content.

But the remedy for a regulatory gap is legislation, not interpretive expansion by a statutory tribunal.

Parliament has had the tools and the opportunity to bring internet broadcasting within the BSA’s jurisdiction. The Law Commission identified the gap in 2013.

Subsequent reviews — including the Department of Internal Affairs’ Safer Online Services process — engaged with it. The Government has signalled policy work is underway.

In that environment, the Authority’s decision to resolve the jurisdictional question through its own complaints process is, at best, premature, and at worst, an exercise in institutional self-aggrandisement dressed up as faithful statutory interpretation.

The Broadcasting Act 1989 was enacted for a different technological era. Its language reflects that era’s assumptions about how content reaches audiences. Applying it to a 2025 internet livestreaming operation requires the kind of legislative recalibration that only Parliament can legitimately provide.

The Authority’s decision, however well-intentioned, substitutes the Authority’s policy preferences for Parliament’s role — and in doing so, undermines the institutional foundations on which its own authority rests.

Declaration of Interest: I have been involved in the Law and IT area from the mid-1980’s although most of my academic focus has been upon the legal implications arising from the arrival of the Internet. I taught Law and IT at Auckland Law School for 18 years, authored the text “Internet.law.nz - Selected Legal Issues for the Digital Paradigm” now in its 5th edition and a monograph entitled “Collisions in the Digital Paradigm: Law and Rule Making in the Internet Age” which is used as a text in law schools in the UK. I have authored numerous articles on law and technology and presented at Conferences locally and internationally on Law and IT topics. It will probably come as no surprise therefore that I wrote the submissions for Reality Check Radio.