Yesterday the Broadcasting Standards Authority upheld its
first complaints against an online broadcaster. The
broadcaster was The Platform, and the host was its founder,
Sean Plunket, who has disputed the Authority’s jurisdiction
for a year. No orders were made.
The Authority found
that a talkback discussion of a Fire and Emergency New
Zealand restructure proposal breached the good taste and
decency obligation in the Broadcasting Act 1989. There is no
code of standards for online content. The Authority has
never written one.
It accepted that there is no right
not to be offended, and that the remark at the centre of the
complaint would not on its own have breached any standard.
It upheld the complaint on the tone of the broadcast as a
whole, which it found denigrated Māori and was one sided,
and on its view that the broadcast did not “advance the
public’s understanding of an important issue”.
“A
board appointed by the Government has weighed criticism of a
government agency and found it wanting,” said Jillaine
Heather, CEO of the Free Speech Union. “Public commentary
does not have to prove its worth to a regulator. That is the
whole point of protecting it.”
The Authority
declared its own limit justified
The Authority says
freedom of expression is its “starting point for every
complaint”, and that it may uphold a complaint only where
the harm makes a limit on that right “reasonable and
justified”. On this broadcast it found itself “unable to
identify any value” sufficient to outweigh the harm, and
concluded that the result was “a lawful, reasonable and
justified limit on the right to freedom of
expression”.
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“Before the state limits what people
may say, it has to show that the limit is justified,” said
Heather. “The Authority declared its limit justified but
never showed us the rights analysis.”
Judged
against a standard that does not apply to them
There
is no balance standard for online broadcasters, and no
fairness standard either. The Authority said as much in this
decision, then marked the broadcast down for being one
sided. Publishers have no rule to follow and no way to know
what the Authority wants.
A regulator that calls its
own model obsolete
The decision opens by saying the
case shows “the limits and obsolescence of the current
regulatory model”, and the Government announced in May
that the Authority will be abolished. Nothing about online
speech should be decided under that model while Parliament
works out what replaces it.
The Free Speech Union is
asking the Minister for Media and Communications, Hon Paul
Goldsmith, to legislate that the Broadcasting Act applies to
radio and television only. We are asking the Authority to
accept no further complaints about online publishers, and to
pause any it is holding, until Parliament has settled the
question.
“If New Zealanders want online speech
regulated, that is a decision for Parliament, with the Bill
of Rights Act in front of it,” said Heather. “The
regulator will be gone, and its reading of the law will
still be there.”
Notes:
- Decision
2025-063A-B, WK and The Platform Media NZ Ltd, released 11
August 2026. The 22 July 2025 broadcast was upheld under
section 4(1)(a) of the Broadcasting Act 1989, good taste and
decency. The 15 October 2025 broadcast was upheld under
sections 4(1)(b) and 4(1)(c), law and order and privacy. No
orders were made. - Jurisdiction was decided
separately in interlocutory decision ID2025-063, published 1
April 2026, the first time the Authority has claimed
jurisdiction over an online broadcaster. The limits it
placed on that jurisdiction appear at paragraphs [60] and
[61]. The reason given for excluding individuals posting
online is at [61](a): that the Act’s annual return and levy
requirements were not directed at them. - In the 11
August decision the Authority sets out its freedom of
expression approach at paragraph [48], finds itself
‘unable to identify any value in the broadcast discussion
sufficient to outweigh the potential harm’ at [70], and
concludes at [74] that the outcome is ‘a lawful,
reasonable and justified limit on the right to freedom of
expression’. In the jurisdiction decision of 1 April it
had declined to undertake a New Zealand Bill of Rights Act
analysis at all, at paragraph [55] of ID2025-063, finding
there was not ‘sufficient ambiguity to invoke an NZBORA
analysis’. - Fairness was held to be outside the
scope of section 4 for an online broadcast at paragraph
[111] of the 11 August decision. The finding that the
broadcast did not ‘advance the public’s understanding of
an important issue’ is at paragraph [70]. At paragraph [1]
the Authority states that the case demonstrates ‘the
limits and obsolescence of the current regulatory
model’. - The Government announced its intention to
abolish the Authority in May 2026. The Free Speech Union has
campaigned on the jurisdiction question since August 2025,
including a petition to the Minister and an options paper on
reform of the Broadcasting
Act.
