Summary
In a landmark decision, the Broadcasting Standards Authority found its jurisdiction to enforce broadcasting standards extended to content transmitted via the internet.
Background
The Platform NZ Ltd regularly streamed an internet livestream which involved commentary on topical political issues. In a segment of the programme in July 2025, programme host Sean Plunket made comments about tikanga. An individual complained to The Platform under the Broadcasting Act 1989 (“Act”) alleging that the statement was racist. The Platform dismissed the complaint on the basis that it was not subject to the Act because it was not a broadcaster.
The complainant subsequently referred the complaint to the Broadcasting Standards Authority (“BSA”). In a provisional decision, the BSA held that The Platform was a broadcaster, and that it therefore had jurisdiction to determine whether the statement complied with broadcasting standards under the Act (which include requirements for good taste and decency, and political balance).
In submissions, The Platform disputed that it was a broadcaster subject to the Act. It was joined by interested party Reality Check Radio (“RCR”)
On 31 March 2026, the BSA issued its final decision on jurisdiction. It concluded that The Platform was a ‘broadcaster’ and it therefore had jurisdiction to determine the complaint. It has yet to determine the complaint as to whether the statement breached broadcasting standards.
The case
The definition of ‘broadcaster’ in the Act is defined by reference to the separate definition of ‘broadcasting’. Broadcasting means “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”. However, transmissions of programmes on the demand of a particular person for reception only by that person are excluded from the definition (“On-Demand Exception”)
Are internet transmissions an “other means of telecommunication”
The BSA held that internet transmissions were clearly a form of ‘telecommunication’ based on dictionary meanings of the term, as well as usage in other legislation. The key issue was whether it was an ‘other means of telecommunication’ for the purposes of the Act.
In submissions, The Platform and RCR argued that Parliament intended to limit broadcasting to traditional radio and television transmission. It argued that the Act was made in 1989 before the internet existed, and that the standards were relics of a bygone era where programme standards were the corollary of state licensure of the radio/television spectrum. The Act, they submitted, was not technology neutral and could not be read to extend to the internet without adopting an artificial and impractical interpretation of the legislation.
The BSA disagreed. The purpose of the Act did not relate to licensing of the radio/television spectrum. Instead, it determined (erroneously) that the purpose of the Act was to “maintain programme standards for the New Zealand public". This interpretation required a broad and generous approach to determining the meaning of ‘broadcasting’. The fact that the internet post-dated the Act was not a hindrance, with the BSA relying on the interpretation principle that legislation applies to circumstances as they arise.
Accordingly, transmission of content via the internet would be subject to the Act (including the BSA's jurisdiction in respect of programme standards), unless an exception applied.
On-Demand Exception
The Platform and RCR both argued that the On-Demand Exception applied because its internet content inherently required active user engagement – users needed to seek out and click on the content, rather than passively receiving it by activating a receiving apparatus (as would be sufficient with television and radio broadcasts). Both disputed the BSA’s view that traditional broadcasts were functionally equivalent to internet livestreams. They argued the Act could not be read as technology neutral, and that technological differences meant that radio/television broadcasts were conceptually distinct from transmissions via the internet.
The BSA acknowledged that the scope of the On-Demand Exception was unclear. It relied on tangential comments by the Royal Commission preceding the Act, as well as a definition from the Copyright Act 1994, to hold that the exception was narrow. It only applied where there was a "subscription element", which implied that a user could be assumed to have a foreknowledge and choice about the nature of the content to be consumed. It dismissed the extensive technological distinctions argued by The Platform and RCR as “technical arguments” which were inconsistent with the BSA’s broad conception of the purpose of the Act.
Relevance of freedom of expression
The Platform argued that a broad definition of 'broadcasting' that extended to the internet was an unjustifiable limit on the right to freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990 ("NZBORA"), in that it would subject a large swathe of new content to what was essentially a state censorship power. Section 6 of the NZBORA requires that wherever legislation can be given a NZBORA consistent interpretation, it must be given that meaning.
The BSA dismissed the relevance of the NZBORA, holding that the meaning of 'broadcasting' was so clear that a rights-consistent interpretation could not apply. It went on to state that, if this conclusion was incorrect, the broad purpose of the Act (which it had erroneously concluded was "the maintenance of programme standards in New Zealand") was inherently to limit expression on the internet. Any such limitation was therefore deemed by Parliament to be reasonably justified.
Practical impacts
If the BSA’s interpretation was applied according to its terms, it would extend application of the Act to every person transmitting content via the internet. This meant not only application of broadcasting standards, but also requirements to file annual returns and, for broadcasters with revenue over $500,000 per year, to pay broadcasting levies. These requirements are mandatory under the Act.
Conscious of this, the BSA sought to confine its broad principle only to services like The Platform – namely those that stream in linear form (ie: continuously) content readily accessible via the internet and that are companies holding themselves out as media outlets and deriving revenue from their operations (including advertising). It purported to exclude from its jurisdiction individuals sharing content online 'ad hoc', content delivered by streaming services like Netflix, Disney+, and Youtube, and overseas entities streaming content in New Zealand. The statutory basis for this distinction was not made clear in its decision and will need to be further developed in subsequent complaints.
Result
The BSA concluded that The Platform was a broadcaster and therefore that it had jurisdiction to hear the complaint.
The practical ramifications of the decision are problematic. While the BSA purported to confine the decision to entities like The Platform, statutory rules are of general application. The reasoning in the decision supports a broad approach to the definition of 'broadcasting' (and a narrow approach to the On-Demand Exception) that potentially subjects broad swathes of internet content creators to the BSA's de-facto censorship powers.
For further information, please contact Director Brigitte Morten
Franks Ogilvie represents The Platform in the BSA proceedings.
