How A 1989 Broadcasting Law Became An Internet Speech Rule - with Steven Franks

We break down the Broadcasting Standards Authority’s claim that it can regulate online platforms under the Broadcasting Act 1989, even though Parliament never updated the law for the internet. We talk through why that change threatens open debate, why the standards are so subjective, and why we think this fight matters for free speech in New Zealand. 
• the BSA asserting jurisdiction over online speech via an old statute 
• why broadcast standards existed in a scarce spectrum era 
• how the internet breaks the logic of compulsory audiences and balance rules 
• the subjectivity of “good taste and decency” and why it becomes a power tool 
• Tikanga flashpoints and the idea of modern “heresy trials” 
• inconsistencies in targeting small outlets while excluding major platforms 
• the practical mess of defining audiences and applying on-demand exceptions 
• the chilling effect of complaints, process costs, and potential fines 
• political and international risks if New Zealand is seen to censor platforms 
• why we say we have to fight and what could come next 
If you enjoyed this episode, please subscribe and consider sharing the podcast with others. We release new episodes regularly, and subscribing is the easiest way to stay up to date. If you have any questions, feedback or suggestions, you can contact us at podcast at fsu.nz. If you want to find out more about the New Zealand Free Speech Union, visit fsu.nz. 

Transcript

Welcome And The Big Claim

SPEAKER_00 0:00

Welcome to Free to Speak, the New Zealand Free Speech Union podcast. If you enjoy the show, subscribe for uncensored conversations and free speech news from New Zealand and beyond.

SPEAKER_02 0:31

This is the play for the internet that they've been hinting at, and it's arrived, really. I might just read from our media release today, which is good gives us some good context here. So the Broadcasting Standards Authority has claimed jurisdiction over the platform and online media outlet under the Broadcasting Act 1989. No law was changed, no bill was passed. The BSA simply interpreted a statute written before the internet existed and decided it now regulates online speech. So, Stephen, take it away. What are the implications here?

Balance Rules Meet The Internet

Subjective Standards And Abolishing BSA

SPEAKER_01 1:08

Well, first is that the it's surprising that it's done it because it's a 1989 act. Uh it clearly did not anticipate uh a world where there is no rationing of broadcasting. Essentially, the justification for the broadcasting act's um standards was people are pretty much uh mandatory compulsory consumers. There's a limited uh bandwidth. A few people had the privilege of licensing to use bandwidths, and the argument was it was a kind of um commons that was being used and the converse of the privilege was that they could not offend people, they couldn't use that platform in a way that, in the words of the act, offend against uh good taste and decency, uh, the privacy of the individual, uh, and particularly the principle that when controversial issues of public importance are discussed, reasonable efforts are made to present significant points of view either in the same program or in other programs within the period. In other words, that's the obligation of balance. And so um public broadcasters, it it and meaning not just the government broadcasters, they were all obliged to be balanced. Well, you have a a completely different world when uh in the internet um people will seek out the information they want. Uh there are highly niche specialized providers, publishers who couldn't, even if they wanted to, present balanced content. And it's the consumer, if you want balance, or if you if you don't like uh a perspective, you go somewhere else. Consumer is now in charge of what they hear, for good or for bad. I mean, it does mean that we may no longer have a uh public marketplace of ideas where everyone uh has an idea of what others are hearing, and we can all go to work in the morning after listening to the news or a a program the previous night and debate the common issues. It it may be that we're much the poorer for it, but it's not the world we're in now. And the Broadcasting Standards Authority was set up for a world where uh it was the backs it was the backstop for complaints against the breach of those standards, which are sort of quaint, even in the language, good taste and decency. They're so plainly subjective. Uh what you might think as um decency will probably be very different from what I think of as decency, Dane. Um you're you're just even generationally, you're a you're a couple of decades different from me. Um and it's now mainstream to call for abolition of the BSA. Um the former Deputy Prime Minister um and the the veteran um member of parliament, Winston Peters, this morning described it as near fascist for them to be asserting their authority or their jurisdiction now.

SPEAKER_02 4:31

So what why now? We have uh touched on it before in an earlier podcast, but uh with uh has anything shifted in your mind as to why it's I I I see it as pretty typical of what the I call it the prof or not just me, but the MPC, the professional, managerial professional class.

Tikanga, Mockery, And Heresy Trials

SPEAKER_01 4:51

Uh others will say it's the Wellington blob, it's the the class comprised of um the academic, media, uh, lawyer, politician, elite, have a consensus about ideas that ought to be mocked and those that should be beyond mockery. They've got a strong consensus about the views that we should all publicly express, even if privately they'll joke about them. So, for example, the the thing that triggered this, which was Sean Plankett referring to the fire service's uh announcement of a cop up a Mari um uh um program, uh which Sean mocked in in succinct term of mumbo jumbo. I I know um senior junk senior lawyers, judges, senior judges who've used that description about tea kanger, because everyone's tikanger, every every ewe's tikanger is different, it's not necessarily written down. To call it law has always been ludicrous, but it has become an article of faith, a tribal identity badge for members of the MPC, and an almost universal um obligation on Wellington public servants to um to pretend that somehow Tikanga has always been part of New Zealand law and even is can even be dignified with the name law. So, of course, when someone says mumbo jumbo, they are insulting their faith. And the reaction is essentially to start a heresy trial, uh, which is what the BSA is doing. They are worthy uh representatives of their class, and uh there's nothing like a heresy trial to prove um that that you're one of the faithful and that you're out there trying to scourge the wicked.

SPEAKER_02 7:00

And the inconsistencies, too, that in their statement, like they're not gonna touch Netflix, they're not gonna go, which is more streaming content.

Why Target Small Outlets

SPEAKER_01 7:09

Or or YouTube, where huge numbers of of uh broadcasts are may. That's that's to be fair to them, the first five or six pages of their decision are a reasonably uh orthodox and perfectly respectable set of legal reasons why this old act may have caught um broadcasting, if you call it that, of the kind that that that the platform and RCR and a number of regular podcasters do. And it may be your call, uh Dane. This, if if this podcast is regular and uh it has a wide audience and it's all sent out at the same time, which I'm sure you will advertise it and it will be, uh, it would probably fall within that definition on a broad interpretation. What we argue was an off-ramp for them. Uh, when I say we free speech unionists have taken an active interest in this and said, look, um you have a way of avoiding asserting your jurisdiction hopelessly because you simply cannot regulate the internet. If you if you're not regulating YouTube and Instagram and the and the platforms, um, the big platforms, why on earth are you going off a minority after a minority uh group when there's all an infinite range of heresies being promoted on other platforms? Um you could argue that you're obliged to, if the law does extend to cover it, you're obliged to go there, and they have argued that. But if you do go there, then you have really big problems in applying the rest of the act. For example, the the consensus on what offense against um you know what is a breach of good taste and decency depends very much on the target audience. So for every every potential broadcaster you want to catch, you're gonna have to define their audience. How do you do that? Even the broadcaster doesn't know.

SPEAKER_02 9:26

Because because when they when they if they were looking at television, they would have taken into account if something was to screen at nine at night or ten at night. And but they can't do that now, can they?

SPEAKER_01 9:38

No, not with these. Um and and and it the act had a an exception, which said that it didn't apply where the um broadcast was on demand. And in a sense, or at least if they'd wanted to avoid being ridiculous, they could easily have recognized that when people log into the platform or RCR or any podcasts or these other broadcasters that are now caught by this assertion, um it's on demand. People are actually asking for it to be sent to their device, whichever device it is that they're using. The statute didn't intend to cover this. Sorry about that.

SPEAKER_02 10:27

That's all right.

On Demand Loopholes And Audience Tests

SPEAKER_01 10:28

It's the free speech union um chief executive. If you're broadcasting live, Dane, she's just about to have a go at us.

SPEAKER_02 10:42

We have someone looking at our standards too, people. So there you go.

SPEAKER_01 10:45

Well, well, we we we may get complaints. You see, uh I've referred to this as mumbo jumbo several times, and I've tried to justify it. So I'm afraid you're gonna be in the gun. And you could be fined$5,000 and you'd have a$5,000 cost of ward against you. And if you don't respond respectfully to the process um and it goes further, you could get a$100,000 fine for non-compliance with the order. So um just be careful, Dane.

SPEAKER_02 11:13

Well, okay, so so what if what if Sean, I don't know what Sean's gonna do, um, but but what if he extends the middle finger to to the process now? Can he do that? Is he is he likely to do that to force the case?

Fines, Non-Compliance, And Workarounds

Political Stakes And Global Blowback

SPEAKER_01 11:27

They've got some pretty substantial those powers I mentioned can be asserted whether or not he accepts that that he's bound. And his if if they do decide to just persecute him, and and there are many bodies now that make the process the punishment. Well, they know that they're on dodgy ground and they're just abusing power, but they'll they'll they'll put people through the process because it's so expensive and scary. Uh, and uh whether the BSA does that or not, I don't know. But it's a pretty bizarre situation for them to be going after him on on this complaint, meanwhile saying, but we're not going after the big platforms or the overseas providers. I mean, there's some pretty obvious things he could do. He could incorporate and run this um from an overseas company, and on on their uh current reasoning, well, that would take him out, take him out of the out of their jurisdiction. I mean, there are the second half of their decision is has got some pretty laughable elements in it because they're trying to they're turning um backflips to try and avoid applying the logic of the first half. The logic of the first half says Parliament's language covers this, um, therefore we must do it. But the second half says, but we're not going after the ones that are also obviously covered, um, because because so Paul Goldsmith, what what what's he likely to do here? Uh he could because he was warned. He was warned, the free speech union we went and saw him in his office and said, This is awkward. I mean, one of the awkwardnesses that he should be thinking about is how how easy, how casually New Zealand could be damaged by a sidewind from Trump. Because Trump has has um backhanded um the United Kingdom and Starmer, which are much bigger and and tougher targets than Bill New Zealand, for their attempts to um to censor X to censor Elon Musk's platform. There's it it's it wouldn't be beyond calculation for the US government, perhaps at the urging of Meta or one of the other platforms, to give us a whack. Just and can and it can be done in a completely unrelated area. Trump sticks up tariffs on countries that he doesn't like. And he doesn't like countries that inhibit free speech.

SPEAKER_02 14:13

But so, okay, so Paul Goldsmith may be passive.

SPEAKER_01 14:17

What will we do? What are we likely to do? Oh, we don't have any choice. We have to have to fight this. I mean, it's it's part of a bigger fight. Around the Anglo world now, other than the US, free speech is in retreat. New Zealand's been very, very lucky. We we fought three years ago, we started fighting against the attempt to write hate speech into our law because it just, as we all know, speech is the speech that gets prohibited is speech that um the loves hate. And the loves hate anything that's contrary to their views.

SPEAKER_02 14:54

The class divide here, uh very pronounced, I think. Um, so anyway, we we will we've talked about 26 minutes.

SPEAKER_01 15:02

Um you're uh you're allowed to express your Marxism on this podcast.

The Fight Ahead And How To Help

SPEAKER_02 15:08

Oh, when I'm speaking to an old Marxist, then you bring it out of me. No, but uh but yeah, well, we'll um have a non-Marxist campaign coming your way very, very soon to deal with the BSA. Um, so look out for that. Uh yeah, this is a big one. It's gonna be a very, very big fight. Could be the fight of the year or one of them. Um, we just can't let this happen. Because uh, you know, once people know they could complain, you they'll be our numbers will go up because people will be watching this and making their notes.

SPEAKER_01 15:41

If one recently cleared from a law society fine and sent fine and censure uh for example for expressing a client's heresy on uh puberty blockers, I'm I'm I'm feeling I've had fellow feeling with uh Sean Plunkett and with the others who could be in the in the firing line. Thanks for the time, Dane.

SPEAKER_00 16:05

Thank you for listening to Free2Speak. If you enjoyed this episode, please subscribe and consider sharing the podcast with others. We release new episodes regularly, and subscribing is the easiest way to stay up to date. If you have any questions, feedback or suggestions, you can contact us at podcast at fsu.nz. If you want to find out more about the New Zealand Free Speech Union, visit fsu.nz.