BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary 

[This summary does not form part of the decision.] 

The Broadcasting Standards Authority found it has jurisdiction to consider a complaint about The Platform’s Live Talkback programme on the basis transmission of the programme meets the Broadcasting Act’s definition of ‘broadcasting’. It found programme transmissions via the internet fall within the definition’s reference to transmission by ‘telecommunication’, applying a plain English and purposive interpretation of the term. It also found such transmissions were not captured by the definition’s exception for transmissions ‘made on the demand of a particular person for reception only by that person’. The Authority acknowledged a technical argument existed for application of the exception but, based on the exception’s wording and the Legislation Act 2019 obligation to apply legislation to circumstances as they arise, the Authority found it did not apply. It noted exclusion of The Platform would be inconsistent with the objectives and purpose of the Act, which was designed to provide for the maintenance of programme standards in New Zealand broadcasting at a time of deregulation and rapidly evolving technology. This interpretation of the ‘broadcasting’ definition was found to be consistent with rights to freedom of expression under the New Zealand Bill of Rights Act 1990. The definition’s wording should not be automatically read down to avoid any impact on rights to freedom of expression when it is part of a regime intended to place justified limits on such rights. As there is currently no code of broadcasting standards specifically addressing the online broadcasting context, relevant complaints will be considered with a view to determining the broadcaster’s compliance with its obligations under section 4 of the Act.

Jurisdiction accepted

Background 

The Authority’s jurisdiction review

[1]  In 2019, in light of the increasing use of internet platforms for distribution of content in New Zealand, the Broadcasting Standards Authority (the Authority) undertook a review of the potential application of the Broadcasting Act 1989 (the Act) to content transmitted over the internet. The preliminary conclusions of this review were published and feedback invited.¹ 

[2]  In 2020, we paused the review for reasons including the then Government’s signalled intention to progress a broader review of content regulation. However, we indicated we would adopt the following approach in the meantime:²

a)  If complaints were received about content within our interpretation of ‘broadcasting’ under the Act:

i)  If the complaint related to content addressed by another standards body or regulator, we would refer the complainant to that entity.

ii)  If there was no other relevant standards body or regulator, and the complaint raised issues of public interest and/or presented a risk of harm, we would direct the complainant to the content provider to respond to the complaint in the first instance. We would also advise the complainant they could come back to us if unsatisfied with the provider’s response or lack of response, and we would engage with the provider as to how the matter could be resolved using our process.

b)  We would not seek to extend the Act’s levy or publicity notice requirements to providers of online content.

[3]  Since 2020, we have worked with successive governments on different proposals for the review of the Act and New Zealand content regulation more generally. However, the wording of the Act remains as considered in our 2019 review. 

WK’s complaint

[4]  WK’s complaint relates to concerns about what the complainant alleges were ‘unacceptable racist comments’ in the 22 July 2025 programme of The Platform Media NZ Limited (The Platform).

[5]  As contemplated under the Act, the complaint was first referred to The Platform. The Platform responded, ‘You Plonker we aren’t subject to the Broadcasting Standards Authority.’  

[6]  The complaint is the first received by the Authority that meets the terms of our 2020 policy, as well as the Act’s requirements for referral of formal complaints to the Authority.³

[7]  On 14 October 2025, the Authority issued to the parties a provisional decision addressing its jurisdiction to consider WK’s complaint against The Platform and sought the parties’ feedback. Both parties provided submissions.

[8]  NZ Media Holdings 2023 Ltd, which carries on business as Reality Check Radio (RCR), sought and was granted leave to intervene and make submissions on the question of jurisdiction. On grant of that application, and with a view to informing any further submissions, the Authority provided RCR and the parties with an 8 December 2025 legal opinion it had obtained from Lowndes Jordan (LJ) on the jurisdiction issue (the LJ Opinion).

[9]  RCR has now provided its submissions on jurisdiction, and the parties have had the opportunity to reply.

Submissions received on jurisdiction

[10]  Key aspects of the detailed submissions received are summarised below and in the analysis which follows.

WK’s submissions 

[11]  WK said:

a)  The jurisdiction question is important because ‘as the reaction to my simple act of complaining shows, there are some serious issues about this kind of media outlet’. WK said his complaint led to his being ridiculed on air and to ‘release [on The Platform] of my name leading to threats and abuse’.⁴

b)  The need for the Act and its standards is likely to have arisen because ‘the main media of the time were seen as having a sizable listenership and viewing reach, and some level of common decency is required. The Platform and its sizable supporting cast seem to be saying that things have moved on and with the internet anything goes – a free fire zone of insults and threats.’

c)  The Platform is a broadcaster for its content broadcast on Radio Aotearoa.

d)  Submissions on behalf of The Platform focus on the issues of extending the Act to ‘the internet’ but that is not what is proposed.

The Platform’s submissions 

[12]  The Platform submitted the Act does not apply to transmission of content via the internet for the following reasons:

Definition of ‘broadcasting’

a)  When the Act was passed, broadcasters ‘sent content into the ether’ and the audience were mostly ‘passive recipients’.

b)  The distinguishing factor between content intended and not intended to be covered by the Act is whether the interaction with the technology is one-way or two-way:

i)  ‘Television and radio are one-way: while users have control of the frequency they select (and thereby indirect control of the content they consume) they do not select the content they receive.’ 

ii)  Publishing through the internet is two-way. The user chooses the content they consume. There are active steps needed to select and engage with it, beyond turning on the device.

c)  The exclusion of transmissions ‘made on the demand of a particular person for reception only by that person’ demonstrates Parliament’s intent. If the transmission (rather than the programme) is made on the demand of the recipient, it is not a broadcast.

New Zealand Bill of Rights analysis required

d)  The Authority must consider its obligations under the New Zealand Bill of Rights Act 1990 (NZBORA) in interpreting the Act, including addressing any ambiguities with a view to applying meanings which best uphold NZBORA rights (including freedom of expression).

Simulcasting

e)  Previous decisions⁵ do not provide a basis for extending the Authority’s jurisdiction to the internet based on the concept of ‘functional equivalence’.

LJ Opinion as advocacy

f)  The interpretation of the Act’s ‘broadcasting’ definition, which was drafted in, and for, a bygone age, is not clear and unambiguous as suggested by the LJ Opinion. 

g)  The principled answer to the interpretation issue (based on the technological features of the different media, as well as the manner of their consumption) is that Parliament did not intend the definition to extend to ‘two-way’ content published on the internet.

h)  Suggesting the interpretation task is simple indicates the provision of an ‘advocacy opinion’, rather than the objective and impartial legal advice appropriate for a tribunal. A statutory tribunal should have instructed counsel that its role is to help the tribunal be fair and properly advise on the legal risks and uncertainties.

Lowndes Jordan interpretation

i)  Parliament may have intended the phrase (‘other means of telecommunication’) to apply broadly. However, the issue is whether Parliament intended it to apply to content delivered via the internet, when the legislation has an express exception that appears intended to refer to the interactive mode of the internet.

j) There is no ‘functional equivalence’ between traditional broadcasting methods and internet publication which can be used to extend the definition of broadcasting to the latter and:

i)  If the two are not within the same conceptual category, the ‘always speaking’ approach from s 11 of the Legislation Act 2019 cannot apply.

ii)  Even if s 21(1)(e) of the Act⁶ is equivalent to the purpose of the Act (which is not accepted), that section only applies to regulating ‘broadcasters’ and does not assist in interpreting who is a broadcaster.

k) The label adopted by an entity (eg iHeartRadio) does not determine whether it is a ‘broadcaster’. The issue requires a principled statutory interpretation analysis.

l)  The LJ Opinion peremptorily dismisses the application of the right to freedom of expression under s 14 of NZBORA in interpreting the scope of the BSA’s jurisdiction:

i)  The definition of ‘broadcasting’ is not so clear and unambiguous that there is insufficient ambiguity to invoke an NZBORA analysis. 

ii)  LJ suggest that because the Act inherently operates as a restriction on freedom of expression, extending it to a new field of communications must necessarily be a justified limitation under s 5 of NZBORA. This does not reflect the orthodox approach to ss 4–6 of NZBORA set out in Hansen v R.⁷

iii)  There has been insufficient analysis of why the regime should apply to restrict free expression online. Without such justification, interpreting ‘broadcasting’ in a way that extends the Act’s reach to the internet is an unjustified limitation on the right to freedom of expression.

Implications of the on-demand exception’s interpretation

m)  The LJ Opinion’s analysis of the on-demand exception suggests any audio/visual content transmitted over the internet is a broadcast unless transmitted pursuant to a private transaction (eg email). This would make content published by individuals on Facebook, YouTube, TikTok, Twitch and other video sharing platforms subject to the Act. 

n)  Section 21 of the Act imposes duties on the Authority in relation to broadcasters. If the statutory definition extends as far as suggested, the Authority is required to undertake those duties rather than pragmatically drawing the line at livestreamed content that is similar to traditional broadcasting. This includes applying the Act’s levies provisions to such entities. 

o)  The ramifications of applying the Act to such a wide group demonstrate this cannot have been Parliament’s intention.

Regulatory gap is for Parliament to address

p)  The standards regime is ‘not susceptible to intellectually coherent or disciplined application’ to online content. The Authority is required to determine the boundaries of what is appropriate at a particular time, knowing audience views are always changing. ‘Criteria and powers to require conformity with shifting norms might be defensible when applied in a regime of self-regulation [where participating broadcasters rely] on a body that is pooling and seeking the consensus experience and judgment of member broadcasters in touch with and responding to the common denominator values or norms of their mainstream audiences.’ However, there is no practical way for the Authority to establish what the ‘multiple minority and specialist audiences of an infinity of internet voices’ would consider to be good taste or decency.

q)  Proposals to extend the Authority’s jurisdiction today would likely explore the significance of broadcasters’ market proportions or sizable reach, as well as the desirable standards for the circumstances.

r)  Any extension of the Act to such entities should be through Parliament. Upholding the provisional decision risks accusations of bias and regulatory overreach that may undermine the Authority’s social and statutory licence.

Intervener’s (RCR’s) submissions 

[13]  RCR submitted the Authority’s jurisdiction is confined to traditional, linear, spectrum-based broadcasting for the following reasons:

Definition of ‘broadcasting’

a)  Broadcasting requires spectrum use/licencing:

i)  The Authority’s jurisdiction is historically linked to licensed broadcasters transmitting over spectrum licensed under the Radiocommunications Act 1989.

ii)  One of the purposes of the Radiocommunications Act was to regulate access to a limited and scarce resource. The activity of broadcasting must be seen within that context.

iii)  The definition of ‘broadcast’ in the Radiocommunications Act is cross-referenced to that in the Broadcasting Act. 

iv)  ‘The Radiocommunications Act regulates the resource and means of delivery via the spectrum – the technology side – whereas the Broadcasting Act regulates what is delivered via that technology – the control side.’ The relationship between these two Acts, enacted in the same year, suggests ‘broadcasting’ cannot take place without spectrum or a licence.

b)  The ‘broadcasting’ definition does not extend to internet-delivered content which relies on different technologies and protocols:

i)  The Act uses technical terminology associated with telecommunications networks, not internet protocols. ‘Telecommunications’ in the Act refers to ‘real-time transport protocols such as RTP/RTCP used in telephony’.

ii)  Traditional broadcasting operates on a one-to-many model with simultaneous uniform signal delivery, using electromagnetic spectrum.  

iii)  Internet content delivery operates on a one-to-one customised streams model optimised for each user’s device and bandwidth conditions. It does not require spectrum licensing but relies on packet-switched IP protocols, content-delivery networks, web-based streaming technologies and ISP-provided general internet connectivity. It is incorrect, and an oversimplification, to suggest the internet is made up of a series of interconnected telecommunications networks.  

iv)  The Telecommunications Act 2001 defines ‘telecommunication’ as the conveyance of signs or information from one device to another by electromagnetic means. Internet radio does not typically use telecommunications services in this sense. 

v)  International and domestic regulatory regimes distinguish between telecommunications services (regulated) and information services/OTT services (generally unregulated).⁸ Internet content delivery is more akin to information services. This explains why services like WhatsApp, despite being superficially similar to telephony, are not regulated under the Telecommunications Act. They rely on internet access provided by ISPs but are not telecommunications providers.

vi)  The LJ Opinion refers to the narrower definition of ‘broadcaster’ for the purposes of the Electoral Broadcasting regime, saying, ‘The only conclusion that can be drawn from this is that a narrower definition was needed because the main definition of broadcaster in section 2 of the [Broadcasting] Act extended beyond traditional radio and television transmission.’ However, ‘[t]he importance of freedom of speech and the exchange of ideas as an underpinning of the democratic process represented by the electoral regime explains the reason why a separate definition is required.’

c)  A device connected to the internet is not, without more, a ‘broadcasting receiving apparatus’.

d)  The only common element between the two transmissions – consumer reception – is irrelevant for jurisdictional purposes, as the Act regulates how content is delivered, not how it is received.

e)  A purposive reading of the Act (which was directed at establishing rules for the ‘scarce’ spectrum resource) does not support the interpretation.

f)  The ‘always speaking’ doctrine does not apply:

i)  Authorities on this doctrine require conceptual similarity between the matters being compared, which is not the case with spectrum-based linear broadcasting and internet-based content delivery.⁹

ii)  ‘It cannot extend the reach or scope of the statute beyond what was originally intended by the Legislature, nor can it create a different purpose beyond that intended by the Legislature.’

Contradicts long-recognised orthodox position

g)  The Law Commission’s 2013 report, and multiple subsequent policy and regulatory reviews, recognised there is a ‘regulatory gap’ with regard to content delivered via the internet, and it is not covered by the Act.

h)  Subsequent regulatory reviews or initiatives did not reference or endorse the Authority’s 2019/2020 position or suggest the Authority had jurisdiction over online broadcasting.

i)  The Authority did not assert it had any jurisdiction over online content in its submission on the Department of Internal Affairs’ Safer Online Services and Media Platforms discussion document.

Absence of supporting authority

j)  No senior court or appellant authority recognises internet streaming as ‘broadcasting’, nor has the Authority identified any international parallels supporting its position.

k)  The Authority has not previously asserted jurisdiction over any entity that was not a traditional broadcaster.

‘On demand exception’

l)  Transmissions ‘made on the demand of a particular person for reception only by that person’ are excluded from the broadcasting definition.

m)  The essence of on-demand content is user choice and user initiation rather than the potential size of the audience. Even if the same content can be accessed by many users simultaneously, ‘each engagement remains an individual, user-initiated transaction’.

n)  The LJ Opinion:

i)  applies a strained interpretation to the phrase ‘for reception by that person’, adding words which are not there: ‘There is no mention of a programme specifically made for a person or specifically commissioned for a person but rather to the receipt of a programme – effectively any programme that can be selected by a user.’ 

ii)  means the Authority would have jurisdiction over content delivered by Netflix, Apple TV, Prime Video, Disney+, YouTube, and other similar systems as well as ‘content including text-based content’ (the latter of which is covered by the New Zealand Media Council).

BSA allowed regulatory gap to exist

o)  The regulatory gap in coverage was first identified by the Law Commission in 2011 and 2013, and the Authority has not sought legislative amendment. 

p)  The Authority has never issued an online broadcasting code or required levies from online operators, and it discontinued its initiative to develop an online-content jurisdictional framework in 2020. 

Regulatory gap is for Parliament to address

q)  The Authority’s proposed assumption of jurisdiction compounds existing uncertainty by introducing a ‘fragmented and technologically dependent approach that renders the law less coherent, less predictable, and more difficult for both consumers and content providers to navigate’.

r)  The Authority should decline jurisdiction and refer the issue to the Minister for Broadcasting, recommending statutory amendment to clarify the jurisdiction issue.

s)  Issues of jurisdiction over internet-delivered content involve wider public policy considerations. ‘The modern digital environment demands legislative reform, not a reinterpretation of an Act designed for an earlier technological era.’

t)  Situations involving complex policy elements require ‘deference to the Legislature’.¹⁰

The ‘broadcasting’ definition – issues for determination

[14]  The Platform is an online media outlet which livestreams for nine hours a day and is funded ‘by a mix of advertising and […] subscriber support’.¹¹ 

[15]  The Act governs ‘broadcasters’ and ‘broadcasting’, as defined in section 2: 

broadcaster means, subject to subsection (2),¹² a person who broadcasts programmes

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 but does not include any such transmission of programmes –

(a)  made on the demand of a particular person for reception only by that person; or

(b)  made solely for performance or display in a public place.

[16]  A ‘programme’, in turn, is defined as:¹³

programme – 

(a)  means sounds or visual images, or a combination of sounds and visual images, intended –

(i)  to inform, enlighten, or entertain; or

(ii)  to promote the interests of any person; or

(iii)  to promote any product or service; but

(b)  does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text.

[17]  The definition of ‘programme’ is broad would readily capture the audio and visual content in The Platform’s Live Talkback offering, which can be regarded as ‘intended to inform, enlighten, or entertain’ and does not ‘consist predominantly of alphanumeric text’.

[18]  If The Platform’s transmissions otherwise constitute ‘broadcasting’, then we also have no doubt they are ‘for reception by the public by means of broadcasting receiving apparatus’. ‘Broadcasting receiving apparatus’, in our view, must reasonably extend to a computer or mobile device which enables a member of the public to receive a relevant transmission of programmes.

[19]   The key issues for our determination under the above definition are whether transmissions by The Platform:

a)  occur by ‘other means of telecommunication’ 

b)  are excluded from the broadcasting definition by the words, ‘any transmission of programmes made on the demand of a particular person for reception only by that person’ (the On Demand Exception).

[20]  Each issue is separately considered below.

‘Other means of telecommunication’

[21]  Applying a plain English analysis, ‘telecommunication’ is a broad term, capturing communication via a range of technologies. It is generally defined inclusively, for example:

a)  communication over long distances by radio, phone, television, satellite, etc¹⁴

b)  communication at a distance (as by telephone)¹⁵

c)  the telegraphic or telephonic communication of audio, video, or digital information over a distance by means of radio waves, optical signals, etc, or along a transmission line.¹⁶

[22]  Before the Act came into force, the Telecommunications Act 1987 (since replaced by the Telecommunications Act 2001) defined ‘telecommunication’ as ‘the conveyance from one device to another of any sign, signal, impulse, writing, image, sound, instruction, information, or intelligence of any nature, whether for the information of any person using the device or not’.¹⁷ This similarly broad definition offers some indication of how ‘telecommunication’ was likely to have been understood when the Act came into force – particularly given this Act’s connection to the reform intiatives behind the Broadcasting Act (as noted at paragraph [32]).  

[23]  RCR noted the Telecommunications Act 2001 defines ‘telecommunication’ as the conveyance of signs or information from one device to another ‘by electromagnetic means’, and say internet radio does not typically use telecommunications services in this sense. However, RCR’s interpretation is inconsistent with the Telecommunications Act itself, which makes it clear that ‘telecommunication’ channels (the means of delivering content) include internet-based transmissions, for example, through pt 6 – ‘Fibre fixed line access services’. The definitions associated with this term also make clear such services are ‘telecommunications services’ enabling or facilitating ‘telecommunication’.¹⁸

[24]  The term ‘other means of telecommunication’ must have been intended to extend the reach of the Broadcasting Act beyond television and radio:

a)  It was likely included to cater for future developments,¹⁹ a sensible drafting technique in the evolving field of technology.

b)  If ‘means of telecommunication’ were incapable of extending beyond radio and television, there would be no need for s 69(1) of the Act to create a narrower definition of ‘broadcaster’ (limited to radio and television broadcasters) for the purposes of pt 6 (Electoral Broadcasting).

[25]  However, as The Platform argue, even if ‘other means of telecommunication’ is intended to extend beyond radio and television, the issue here is whether it reasonably extends to delivery of content via the internet. 

[26]  The Platform and RCR argue transmission via the internet is not, in the context of the Act, a transmission by means of ‘telecommunication’. This interpretation, as more fully described below, relies on:

a)  the origins and purpose of the Act as being designed to regulate ‘one-to-many’ or ‘one-way’ transmissions via the spectrum

b)  the different technologies and protocols involved in ‘one-to-one’ or ‘two-way’ internet transmissions.  

[27]  The next question for us is therefore how the meaning of ‘telecommunication’ might be influenced by a purposive interpretation of the Act.

A purposive approach to the Act

[28]  RCR provided detailed submissions on this issue, saying:

a)  The intention of the Act was to establish a content standards regulatory regime for a particular technology.

b)  The Act reformed a broadcasting sector which originated as a state-controlled activity. It opened broadcasting to market competition, established the Authority and retained standards (established under earlier legislation) applicable to all spectrum-using broadcasters. The rationale for the regime ‘was anchored in the scarcity and public value of the radio spectrum, the pervasive influence of television, and the public interest in ensuring those granted access to spectrum adhered to minimum standards’.

c)  If the regulatory regime was directed at establishing rules for a scarce resource, it can’t be intended to extend to the internet, noting: (i) apart from a contract with a service provider, there are no entry or licensing fees for internet access; (ii) it is available to all, both in terms of receipt and distribution of content; and (iii) there is no one protocol for content delivery on the internet as it is enabled via multiple different protocols.

d)  As the reforms didn’t anticipate the internet, the regulatory architecture was tied to the traditional paradigm.

e)  The purpose of the Act cannot reasonably be ‘to regulate the delivery of ALL content by technological means’.

[29]  Taking into account the reforms RCR refer to, and their ultimate outcomes, this restrictive interpretation of the Act’s purpose is not supportable. 

[30]  We acknowledge spectrum-based technology was the primary (if not only) means of public broadcasting used in 1989.²⁰ The technology had practical limitations, given the risks of signal interference, and licensing was required (including to manage use of the finite resource and ensure frequency users obtained protection against interference). Reform of the telecommunications and broadcasting sectors in the late 1980s required changes to the system of radio spectrum management, but that was far from the purpose of either the Act or the reform itself.

[31]  Parliamentary debate on the Broadcasting Bill 1988 (the 1988 Bill) notes:²¹

The Government’s reform of the broadcasting industry is governed by three major objectives. The first objective is to improve the economic efficiency of broadcasting, and to improve consumer choice in broadcasting by permitting greater competition and flexibility in the broadcasting industry. The second major objective is to define the Government’s social objectives in broadcasting, and to devise appropriate legislation to put those objectives into effect. The Government’s third major objective is to separate clearly the social goals, policy advice, and regulatory functions from commercial activities.

[32]  The reform led to Radio New Zealand Ltd and Television New Zealand Ltd being established as State-owned enterprises and to the following three pieces of legislation: ²²

a)  the Telecommunications Act 1987 (as amended by the Telecommunications Amendment Act 1988)

b)  the Broadcasting Act 1989 

c)  the Radiocommunications Act 1989.

[33]  The regime for licensing and management of the radio spectrum (previously addressed in the Broadcasting Act 1976) was moved to the Radiocommunications Act. The purpose of that Act might be more readily described as establishing rules for the scarce spectrum resource. The Broadcasting Act, however, is no longer expressly or inherently tethered to spectrum-based technology and was considered by Parliament independently of, and prior to the introduction of, the Radiocommunications Bill.²³  ‘Spectrum’ is not mentioned in the Act and ‘radio waves’ are only referred to in the definition of broadcasting as an example before ‘or other means of telecommunication’.  

[34]  If Parliament had intended the Act to apply solely to transmission using the spectrum, it would have been simple to say that in the broadcasting definition – mirroring the Broadcasting Act 1976 definition.²⁴ The obvious intention of including a broad term like ‘other means of telecommunication’ is to allow for broadcasting using other transmission methods. 

[35]  The internet and its technological complexities may not have been expressly contemplated in 1989. However, the possibility of alternative broadcasting methods using new technologies was likely to have been taken into account by Parliament. Detailed consideration was given to evolving and new technologies in the September 1986 Report of the Royal Commission of Inquiry on ‘Broadcasting and Related Telecommunications in New Zealand’ – a precursor to the Government’s reform proposals (including changes ultimately made to the Act). 

[36]  The Royal Commission discussed opportunities presented by technologies then anticipated, including cable, direct broadcasting satellite (DBS) as well as the Integrated Services Digital Network (ISDN) which enables transport of content in digital form.²⁵ It concluded conventional transmission methods (via spectrum) appeared, at the time, to offer the most cost-effective option for New Zealand broadcasting.²⁶ However, it also recommended the Broadcasting Act be amended to include cable broadcasting services in the definition of broadcasting, that those seeking to establish DBS or cable be licensed, and that all existing and future broadcasting ‘warrant holders’ be bound to establish complaints procedures to ‘receive and adjudicate on formal complaints from the public’.²⁷ This does not support the argument reforms were focused on use of the spectrum.

[37]  Post-reform, the Act is (as described at the start) an Act:

(a)  to provide for the maintenance of programme standards in broadcasting in New Zealand; and

(b)  to establish the Broadcasting Standards Authority and to define its functions and powers; and

(c)  to establish the Broadcasting Commission (now known as NZ On Air) and to define its functions and powers; and

(d)  to enable political parties to broadcast election programmes for Parliamentary elections free of charge; and

(e)  [Repealed]

(f)  to repeal the Broadcasting Act 1976; and

(g)  to provide for matters incidental thereto.

[38]  In our view, a purposive interpretation of the broadcasting definition must involve examining how the alternative interpretations serve the objective of maintaining programme standards for the New Zealand public. 

[39]  Under s 11 of the Legislation Act 2019, legislation applies to circumstances as they arise. Taking a purposive approach, as described above, to the broadcasting definition and the term ‘other means of telecommunication’, it is appropriately seen as capturing modern forms of broadcasting as used by The Platform. Exclusion of such entities would undermine the Broadcasting Act’s objectives.

[40]  We do not agree this interpretation involves extension of the definition to ‘conceptually different things’. Transmission by spectrum and by internet are two means of delivering content to New Zealand audiences. The complexity, protocols or particular technology involved in transmission by internet do not alter the transmission’s essential nature or purpose. 

[41]  Accordingly, we are satisfied The Platform’s transmission of relevant content occurred by ‘other means of telecommunication’. However, we return to the relevance of the arguments on the ‘one-way’ or ‘two-way’ nature of the transmissions when considering the On Demand Exception.

On Demand Exception

[42]  The next question is whether The Platform’s transmissions are captured by the On Demand Exception. Specifically, is the ‘transmission’ of its programmes made on the demand of a particular person for reception only by that person?

[43]   There is a technical argument that internet transmissions inherently occur ‘on demand’. For a user to see and hear content on their device, they must trigger the transmission. To do that, they must first arrive at the site that is making the content available. Unless the programme is set to autoplay, once at the site, the user must take a further step to request that the site in question send a request to the relevant server, usually by clicking on a link or a play button for a video. Doing so triggers a request from the site to the server. What follows is a transmission to the user’s device, in accordance with the user’s request. It can be argued that, from a technical perspective, this differs from traditional broadcasts where the programme is transmitted through the airwaves whether or not anyone requests it or even receives it.

[44]  The legislative origin of the On Demand Exception is unclear. However, in light of attention given by the Royal Commission and Parliament to capturing new technologies, the exception is unlikely to have been directed at excluding a specific transmission methodology that did not yet exist. 

[45]  We have identified nothing in Parliamentary debates on the 1988 Bill which sheds light on its meaning. However, as discussed at paragraph [36], we note the Royal Commission’s 1986 report recommended extending the Broadcasting Act to cable programmes. It recognised:

a)  Cable television can offer a ‘greater number of alternative channels’, offering ‘diversity of services and greater specialisation in programming’, observing:

From the American experience in those areas where ‘good’ cable systems operate, programmes from a dozen or more local or distant television broadcasters may be presented, together with an equal number of non-broadcast video channels for specialised audiences offering educational, sporting, news, movies or minority linguistic programmes.²⁸ 

b)  Cable channels may be ‘reserved for reception to those who pay a fee specifically for them over and above their monthly subscription for connection to the system. This has commonly been used for channels showing first-run movies or live sporting events.’²⁹

[46]  The On Demand Exception may have been an attempt to address certain features of anticipated cable services (which, at the time, were not available in New Zealand). 

[47]  The concept of transmissions ‘by request’ was present in the definition of ‘cable service programme’ included in the Copyright Act 1994, enacted 5 years after the Act. It read, in part (emphasis added):³⁰

Cable programme service means a transmission service where the transmission is– 

(a)  For reception at 2 or more places, either simultaneously or at different times, in response to requests by different users. 

…

[48]  This recognition of the importance of a ‘request’ or ‘demand’ suggests the On Demand Exception is intended to contemplate transmissions involving a subscription element, implying some degree of foreknowledge and conscious choice (as something cannot be demanded without an idea of what is being demanded).

[49]  The audience’s ability to exercise choice and control is significant in a broadcasting standards context. As recognised in the Code of Broadcasting Standards in New Zealand, ‘[t]he level of choice and control available to an audience is a significant factor in determining what’s acceptable and whether broadcasters have met their responsibilities. In particular, pay TV operates in a less restrictive environment due to the choice customers make in paying to receive broadcasts.’³¹ It is reasonable to expect a different standards regime – or no standards regime – for transmissions delivering content a customer has consciously chosen and requested.

[50]  Ultimately, whatever the original rationale for the On Demand Exception, we are required to apply the wording as it is, and in a manner consistent with the Legislation Act 2019 obligation to apply legislation to circumstances as they arise.³² Based on the wording of the On Demand Exception and the features outlined in paragraph [48], we are satisfied the On Demand Exception does not extend to transmissions by The Platform:

a)  The Platform’s live transmissions are functionally equivalent to other (traditional) broadcasts in that they are available to any member of the public using a device equipped to receive them.

b)  Once accessed, via a user’s device, the user receives the same content as every other member of the public who is listening. The content is not received only by a particular recipient; it is received by all listeners. 

c)  Like traditional broadcasts, a user might have some idea of The Platform’s style and likely approach but cannot be said to have ‘demanded’ a transmission of whatever is being discussed when the relevant link is clicked. 

d)  Other than clicking the link, users need not formally demand, engage with, subscribe to, or even be known to The Platform to receive its transmissions. Users simply utilise the functions of their devices to access freely available transmissions/content. This action cannot comfortably be described as a ‘demand’ by a ‘particular person’ as required by the On Demand Exception.

[51]  We are reinforced in this interpretation by its alignment with the Act’s purpose of maintaining programme standards for the New Zealand public in a context where reform enabled ‘greater competition, flexibility, and consumer choice in broadcasting’.³³ Parliamentary Debate on the 1988 Bill recognised that deregulation and ‘the explosion of technology in this sphere’ may lead to ‘a great many more broadcasters’, making it ‘crucial that there should be a stringent regulatory regime to protect the public interest’.³⁴ Debate addressed Parliament’s concern to ensure the maintenance of ‘high ethical and professional standards in broadcasting’³⁵ in light of concern that ‘when deregulation takes place in broadcasting, more often than not standards tend to fall’.³⁶ These concerns were seen to support implementation of a ‘robust regime’:³⁷

The Government remains convinced that strong measures are needed to reinforce the standards regime established by the Bill […] The Government makes no apology for introducing a robust regime for maintaining broadcasting standards. Broadcasting is a powerful medium. The immediacy and potential impact of free-to-air broadcasting, in particular, is such as to justify a stringent approach to broadcasting standards.

[52]  In these circumstances, while there is a technical interpretation of the On Demand Exception that might support The Platform’s argument for exclusion, such an interpretation is, in our view, entirely inconsistent with the objectives and purpose of the Act. 

[53]  Having found the On Demand Exception does not apply to The Platform, there is no need for us to make further findings about its scope. However, in light of the parties’ submissions, and in the interests of providing some guidance to broadcasters and the public, we offer the following observations:

a)  We considered whether the On Demand Exception was targeted at paid programming or particular types of cable or other paid programming. This was due to the Royal Commission’s mention of specialised channels available to those who pay a fee for them in addition to their usual subscription charge (see paragraph [45] above). However, we consider there was no intention to exclude all paid programming from the definition of broadcasting:

i)  The On Demand Exception includes no payment requirement.

ii)  The ‘broadcasting’ definition captures encrypted or unencrypted transmissions and encryption is a security feature often used to ensure availability only to paying customers.

iii)  Parliamentary debate on the 1988 Bill contemplates ‘Pay TV’ falling within the Act’s standards regime as it records the need for the Authority to develop separate broadcasting standards as appropriate for free-to-air broadcasting and pay television services.³⁸ This would not make sense if paid programming was intended to be excluded from the Act by the On Demand Exception.

b)  Transmissions falling within the exception must be ‘for reception only by’ the person who demanded them. While Parliament would have needed considerable foresight to anticipate this, the wording applies well to transmissions of individual movies and other programmes using today’s on-demand streaming platforms. This is because such programmes are transmitted and received at times unique to the recipient. On this basis, the exception may have contemplated a distinction between transmissions obtained and watched at times selected by the user (an individual transmission) and other broadcasts, including cable channels, which played continuously for simultaneous access by customers.³⁹  

[54]  We leave such points to be confirmed, if necessary, in a relevant future case.

New Zealand Bill of Rights Act 1990

[55]  We recognise our obligations under NZBORA to address any ambiguities with a view to applying meanings which best uphold NZBORA rights (including freedom of expression). However, we disagree there is sufficient ambiguity to invoke an NZBORA analysis (noting the plain English meaning of ‘telecommunication’, and the wording of the On Demand Exception). 

[56]  If we are wrong in that conclusion, any NZBORA analysis seeking to deny an interpretation of a provision because it would limit freedom of expression must take into account the purpose of the statute in question (which of necessity restricts freedom of expression in the public interest). The words of the Act should not be automatically read down so as to have no impact on NZBORA rights when those words are a fundamental part of a regime which Parliament created to do just that: place justified limits on NZBORA rights.

[57]  The Authority has always recognised the important role of freedom of expression in broadcasting. As recorded in the Code of Broadcasting Standards in New Zealand:⁴⁰

The law and common sense require us to be cautious before restricting freedom of expression. The New Zealand Bill of Rights Act states that this should only occur when it is ‘demonstrably justified in a free and democratic society’ […] It can be difficult to strike a balance but it’s the Authority’s responsibility to do so in the public interest.

[58]  In this context, and given Parliament’s documented interest in delivering a robust regime for maintaining high ethical and professional standards in public broadcasting in the face of deregulation and evolving technology, there is every reason to adopt the interpretation we have reached, despite any (limited) impact likely in respect of freedom of expression online.

Broader effect of the Act applying to The Platform

[59]  The Platform and RCR have expressed concerns about the potential ramifications of a decision that The Platform falls within the Act’s jurisdiction. Submissions on this point say:

a)  it is not feasible for the Authority to undertake its various legislative responsibilities in respect of the potentially large range of entities that could fall within our regime

b)  the standards regime is ‘not susceptible to intellectually coherent or disciplined application’ to online content as there is no practical way to establish what relevant audiences would consider appropriate standards.

Does this decision open the floodgates to other online content providers?

[60]  This decision solely concerns the Act’s application to a New Zealand entity which:

a)  during its hours of operation is streaming online, in a linear form (ie playing continuously), content readily accessible by the New Zealand public via any smart phone, smart television, computer or other internet connected telecommunications device

b)  is a company, holding itself out as a media outlet (described on its website as an ‘independent digital media site’) and deriving revenue from its operations, including via advertising.

[61]  This decision is not a finding that the Act applies to:

a)  individuals sharing content online on an ad hoc basis – we consider the Act was not directed at such individuals given its requirements with regard to the filing of annual returns and levies

b)  all editorial content currently covered by the New Zealand Media Council – much of which consists ‘predominantly of alphanumeric text’ which does not meet the Act’s definition of a ‘programme’ (see paragraph [16]) or is not streamed

c)  all content delivered by Netflix, Apple TV, Prime Video, Disney+, YouTube and other similar systems – which we consider is generally likely to be captured by the On Demand Exception (though this is not an issue requiring resolution in this decision)

d)  overseas entities streaming content for New Zealand audiences – although, in accordance with our previously published advice on this point,⁴¹ we consider the Act likely capable of extraterritorial application where content is received by New Zealanders.

[62]  Having determined the Act applies to programmes streamed by The Platform, further research and public consultation is required to address the implications for any equivalent New Zealand broadcasters and to review our policies, procedures and codes in light of the determination. This decision necessarily focuses on The Platform, as the subject of the relevant complaint, but our initial research suggests there are a limited number of entities within this group, rather than numbers likely to create an impractical or unmanageable regime or workload.  

Can a standards regime sensibly apply to online content?

[63]  The Platform argued standards regimes may be ‘defensible’ when applied in a regime of self-regulation, where participating broadcasters rely ‘on a body that is pooling and seeking the consensus experience and judgment of member broadcasters in touch with and responding to the common denominator values or norms of their mainstream audiences’. However, they say there is no practical way for the Authority to establish what the ‘multiple minority and specialist audiences of an infinity of internet voices’ would consider to be, for example, ‘good taste or decency’.

[64]  This argument suggests there could be no minimum standards expected of those broadcasting to the New Zealand public. This cannot be so. There is no ‘specialist New Zealand audience’ to which it is appropriate to direct misleading and materially inaccurate information on significant public issues or content inciting violence or discrimination, for example. While perceptions of ‘good taste and decency’ are more variable amongst audiences, we have no doubt there are some minimum expectations and that they would be reasonably capable of identification.

[65]  While there will be audiences open to receiving any content (illegal or otherwise) and those who would only expect content to meet the bare legislative requirements (on privacy, defamation, human rights etc), this is no argument for setting tailored broadcasting standards at their preferred level. Words spoken on a public platform have influence and consequences beyond that platform’s audience. The invective and misinformed attack directed at the complainant following discussion of the current complaint on The Platform is some evidence of that. The standards regime is directed at protection of the broader public as well as specific programme audiences.

[66]   As noted in Parliamentary debate on the Broadcasting Bill, public broadcasting has a ‘profoundly influential role in the social, political, and cultural life of the country’.⁴² Using an unduly technical interpretation to exclude online broadcasters would create a significant gap in the protections available to New Zealanders. We consider the standards regime logically, and appropriately, includes online broadcasters such as The Platform.  

Other issues

[67]  We briefly address some of the remaining points raised in submissions:

a)  Radio Aotearoa content: WK noted relevant content produced by The Platform was also broadcast on Radio Aotearoa (a traditional radio station), suggesting this meant The Platform is a broadcaster. However, the complaint made and referred to us was not about a Radio Aotearoa broadcast, it was about The Platform’s online content.  While the Code of Broadcasting Standards in New Zealand indicates we are able to accept complaints about content viewed or listened to on non-broadcast media, this is ‘ONLY if you can supply details of the same material broadcast on TV or radio and lodge your complaint within 20 working days of that broadcast’.⁴³ As no details of any relevant Radio Aotearoa broadcast were provided, this complaint must be addressed in respect of content on The Platform rather than on Radio Aotearoa.

b)  Current approach contradicts long-recognised orthodox position: We do not agree that the series of papers and government reviews cited by RCR – which acknowledge issues around the Act’s potential application to online content and endeavour to develop a regime offering greater clarity – are in any way binding on the Authority, albeit they are of assistance in outlining some of the issues. While some of these papers and reviews may have proceeded on the basis of an assumption that the Act does not apply to internet-delivered content, they were not called upon to rigorously test that assumption in light of the wording of the Act, as we have now done.

c)  Regulatory gap is for Parliament to address: As a look through our published annual reports will demonstrate, we have been calling with increasing urgency for Parliament to update the Act for over 20 years. Until the Act is updated, it needs to be interpreted in a way that has some modern relevance – and, on receipt of a relevant complaint, we are charged with applying the law as it is. 

Conclusion on jurisdiction

[68]  For the reasons above, we find the Authority has jurisdiction, and is required, to consider WK’s complaint.

Applicable broadcasting standards

[69]  The current Code of Broadcasting Standards in New Zealand was developed for application to traditional television and radio broadcasting. We have not yet developed a code of broadcasting standards specifically addressing the online broadcasting context. 

[70]  However, the existence of an applicable code of broadcasting standards is not a prerequisite for a valid complaint under the Act. Under s 6(1)(a) of the Act, broadcasters are required to receive and consider formal complaints which constitute an ‘allegation that the broadcaster has failed to comply with section 4’. Section 4 not only requires broadcasters to maintain standards consistent with any applicable code of broadcasting practice but also to maintain standards consistent with, among other things, ‘the observance of good taste and decency’.⁴⁴ The current complaint, concerning ‘unacceptable racist comments’, is readily seen as an ‘allegation that the broadcaster has failed to comply with’ the s 4(1)(a) good taste and decency obligation. 

[71]  Accordingly, the Authority will consider the complaint, in accordance with its s 21(1)(a) function,⁴⁵ to determine The Platform’s compliance with its s 4 obligations, in particular the obligation to maintain standards consistent with ‘the observance of good taste and decency’. 

[72]  Finally, while the current code of broadcasting standards and our previous decisions may not expressly address online broadcasts, we expect the principles and approach to determination of a broadcaster’s s 4 obligations will be informed by our approach in comparable traditional broadcasting situations.  

For the above reasons the Broadcasting Standards Authority finds that it has jurisdiction to accept WK’s referral of a complaint about The Platform Media NZ Ltd’s failure to comply with section 4 of the Broadcasting Act 1989.

Signed for and on behalf of the Authority

Susie Staley
Chair
31 March 2026    

Appendix

The correspondence listed below was received and considered by the Authority:

Complaint referral

1  WK’s original complaint – 31 July 2025

2  The Platform’s response to the complainant – 1 August 2025

3  WK’s referral to the Authority – 4 August 2025

WK’s submissions on jurisdiction 

4  WK’s submissions – 30 October 2025

5  WK’s further submissions – 26 November 2025

The Platform’s submissions on jurisdiction 

6  The Platform’s submissions – 24 October 2025

7  The Platform’s further submissions – 3 November 2025

8  The Platform’s further submissions – 12 November 2025

9  The Platform’s submissions in reply to RCR submissions – 27 January 2026

Intervener’s (RCR’s) submissions on jurisdiction 

10  Memorandum of Submissions for the Intervener – 22 December 2025

11  Supplementary Memorandum of Submissions for the Intervener – 22 December 2025 

¹ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho (19 November 2019) "Application of the Broadcasting Act to Internet Content" <bsa.govt.nz>
² Broadcasting Standards Authority | Te Mana Whanonga Kaipāho (19 August 2020) "Application of the Broadcasting Act 1989 to Online Content" <bsa.govt.nz>
³ However, we have previously signaled our views on this area where similar issues arose in a decision (see Phillips and Racing Industry Transition Agency, Decision No. ID2019-044 at [13]-[14]).
⁴ WK has since made a second formal complaint about comments made on The Platform following his first complaint.
⁵ McKenzie v 95BFM, Decision No. 2005-090; Phillips and Racing Industry Transition Agency, Decision No. ID2019-044
⁶ Section 21(1)(e) concerns the Authority’s function to ‘encourage the development and observance by broadcasters of codes of broadcasting practice’.
⁷ The Platform refer to the sequence of steps in Hansen v R [2007] NZSC 7 at [92].
⁸ RCR referred to the US Telecommunications Act 1996
⁹ RCR referred to R v Misic [2001] 3 NZLR 1 at [31] and Birmingham CC v Oakley [2001] 1 All ER 385
¹⁰ RCR cite Hoban v Attorney-General [2025] NZCA 644 as an example of such judicial deference in a different area
¹¹ The Platform “Home Page” <theplatform.kiwi>
¹² Subsection (2) concerns transmission services providers which are not relevant here.
¹³ Broadcasting Act 1989, s 2
¹⁴ Oxford Learner’s Dictionaries “telecommunication” <oxfordlearnersdictionaries.com>
¹⁵ Merriam-Webster Dictionary “telecommunication” <merriam-webster.com>
¹⁶ Collins Dictionary “telecommunication” <collinsdictionary.com>
¹⁷ Section 2
¹⁸ Telecommunications Act 2001, s 5, definition of ‘fibre fixed line access service’ and ‘telecommunications service’
¹⁹ The need to cater to future developments is recognised in both (i) parliamentary debate on the Broadcasting Bill 1988 which recognised the likelihood of the combined impacts of deregulation and ‘the explosion of technology’ leading to ‘a great many more broadcasters in the future’ (see, for example, (16 May 1989) 498 NZPD 10524); and (ii) the detailed consideration of evolving and new technologies in the September 1986 Report of the Royal Commission of Inquiry on ‘Broadcasting and Related Telecommunications in New Zealand’, a precursor to the Act’s development, discussed further at paragraph [35] below
²⁰ We note the Broadcasting Act 1976, under which public broadcasters were licensed at the time, only applied to spectrum-based transmissions (see definition in footnote 24).
²¹ (16 May 1989) 498 NZPD 10512
²² See (13 December 1988) 495 NZPD 8826; and the Radiocommunications Bill 1989 (188-1) explanatory note. 
²³ See (16 May 1989) 498 NZPD 10502 where, during debate on the broadcasting bill, the pending introduction of a ‘radio communications bill’ in ‘the near future’ to ‘give effect to the Government’s policies in relation to the allocation of radio frequencies’ was signalled.
²⁴ Section 2 of the Broadcasting Act 1976 defined ‘broadcasting’ as ‘the dissemination of any form of communication by the wireless transmission of writing, signs, signals, pictures, images, and sounds of all kinds by means of Hertzian waves intended to be received by the public either directly or through the medium of relay stations.’
²⁵ See Royal Commission of Inquiry Broadcasting and Related Telecommunications in New Zealand (September 1986) at pages 29–55
²⁶ As above, at page 39
²⁷ As above, at pages 432 and 441
²⁸ See Royal Commission of Inquiry Broadcasting and Related Telecommunications in New Zealand (September 1986) at page 31
²⁹ As above, at page 32
³⁰ Section 4 (repealed)
³¹ Introduction: Code of Broadcasting Standards in New Zealand, page 4. See also Commentary: Offensive and Disturbing Content, Code of Broadcasting Standards in New Zealand at page 8
³² Section 11
³³ (13 December 1988) 495 NZPD 8826. See also (16 May 1989) 498 NZPD 10512-10513, 10522, 10524.
³⁴ (16 May 1989) 498 NZPD 10524
³⁵ (13 December 1988) 495 NZPD 8826, (16 May 1989) 498 NZPD at 10503, 10506, 10512-13
³⁶ (13 December 1988) 495 NZPD 8830  
³⁷ (16 May 1989) 498 NZPD 10499
³⁸ (16 May 1989) 498 NZPD 10500
³⁹ This is consistent with the Copyright Act 1994’s definition of ‘cable programme service’ (see paragraph [47] above) which contemplates transmissions ‘for reception at 2 or more places, either simultaneously or at different times’
⁴⁰ Introduction: Code of Broadcasting Standards in New Zealand, page 4
⁴¹ Broadcasting Standards Authority (19 November 2019) "Application of the Broadcasting Act to Internet Content" <bsa.govt.nz> at paragraph 10(a)
⁴² (16 May 1989) 498 NZPD 10512
⁴³ The BSA complaints process: Code of Broadcasting Standards in New Zealand, page 22
⁴⁴ Section 4(1)(a)
⁴⁵ The Authority’s function under s 21(1)(a) is to receive and determine complaints from persons who are dissatisfied with the outcome of complaints made to broadcasters under s 6(1)(a)