BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary 

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

NZ Media Holdings 2023 Ltd, which carries on business as Reality Check Radio (RCR), applied for leave to intervene, on the question of jurisdiction, in respect of complaint 2025-063. This complaint concerns content transmitted over the internet by The Platform. RCR said it is affected by the outcome as a provider also conveying content over the internet and that the decision would have a significant impact on its business model, structure and operation. The Authority found it had power to grant such an application. Considering relevant principles, the nature of the jurisdiction issues and the parties’ submissions, leave was granted on conditions designed to ensure the timeliness of the complaints process.

Leave granted to intervene

Background 

[1]  On 14 October 2025, the Authority issued to parties a provisional decision regarding its jurisdiction to consider WK’s complaint against The Platform Media NZ Ltd (The Platform) and sought the parties’ feedback. 

[2]  WK’s complaint is the first complaint received by the Authority that meets the terms of its 2020 policy about online broadcasters,¹ as well as the Broadcasting Act 1989 (the Act)’s requirements for referral of formal complaints to the Authority.

[3]  Since 2020, successive governments have proposed different options for reviewing or amending the Act and New Zealand content regulation more generally. However, the relevant wording of the Act has not changed since our 2019 review. 

[4]  Although the provisional decision of 14 October 2025 was issued on a confidential basis to the parties only, it has been widely publicised, leading to RCR becoming aware of the complaint and the question of jurisdiction. 

Application to intervene 

[5]  On 10 November 2025, NZ Media Holdings 2023 Ltd, which carries on business as Reality Check Radio (RCR), sought leave to intervene, make submissions and be heard in these proceedings on the question of jurisdiction. RCR’s application was made pursuant to section 10(2) of the Act on the grounds:

a)  RCR is directly affected by the outcome of this matter as a ‘content provider utilising the internet as a means of communication’.

b)  A decision on whether the Authority has jurisdiction over online broadcasting will have a significant impact upon RCR’s ‘business model and the way in which it runs and has structured its business’.

[6]  RCR submitted:

a)  Section 4A of the Commissions of Inquiry Act 1908 (COI Act) should be regarded as informing the Authority’s discretionary decision to allow those affected by its decision to have a say, despite it not being referred to in section 12 of the Broadcasting Act.²

b)  It should be permitted an extension of time to file submissions if leave to intervene is granted.

Submissions of the parties 

[7]  The Authority shared RCR’s application with the parties, asking if they had any objection to such leave being granted.

[8]  The Platform said it had no objection to RCR’s application to intervene.

[9]  WK did not expressly object but noted the Authority’s position, and WK’s comments, were ‘specific to The Platform and its circumstances’.

Power to grant application

[10]  Section 10(2) of the Act governs the Authority’s consideration and determination of complaints.  It states:

(1)  The Authority may, if it thinks fit, consider and determine any complaint referred to it under section 8 without a formal hearing, but, in that case,—

(a)  shall give the complainant and the broadcaster a reasonable opportunity to make submissions to it in writing in relation to the complaint; and

(b)  shall have regard to all relevant submissions made to it in writing in relation to the complaint.

(2)  In considering every complaint referred to it under section 8, the Authority shall provide for as little formality and technicality as is permitted by—

(a)  the requirements of this Act; and

(b)  a proper consideration of the complaint; and

(c)  the principles of natural justice.

[11]  Section 21 of the Act states the Authority’s functions, which include ‘to publicise its procedures in relation to complaints’.³

[12]  Under section 12 of the Act, certain sections of the COI Act also apply to the Authority’s consideration of complaints. These include section 4B which grants the Authority a broad power to receive any evidence or information that in its opinion may assist.⁴ As noted by RCR, section 12 does not refer to section 4A of the COI Act which states:

4A Persons entitled to be heard

(1)  Any person shall, if he or she is a party to the inquiry or satisfies the Commission that he or she has an interest in the inquiry apart from any interest in common with the public, be entitled to appear and be heard at the inquiry.

(2)  Any person who satisfies the Commission that any evidence given before it may adversely affect his or her interests shall be given an opportunity during the inquiry to be heard in respect of the matter to which the evidence relates.

(3)  Every person entitled, or given an opportunity, to be heard under this section may appear in person or by his or her counsel or agent.

[13]  Despite section 4A’s omission from the list of applicable COI Act provisions, we are satisfied the Authority’s powers, as described above, are sufficiently broad to allow for interveners where appropriate. Section 4A was likely omitted on the basis:

a)  It was unnecessary, given the Authority’s broad powers to determine its own procedures.

b)  It was undesirable to constrain the Authority’s procedures with that section’s requirements relating to interveners.⁵

Determination of application

[14]  In considering the current application, we have read the correspondence listed in the Appendix.

[15]  We note RCR’s submissions on the extent to which this issue should be informed by the wording of s4A of the COI Act. However, in the context of complaints determined under our jurisdiction, we consider the following principles should guide the determination of intervener applications:⁶

a)   The power to grant an application to intervene should be exercised with restraint to avoid the risk of expanding issues, elongation of proceedings and increasing any costs to parties.

b)  In a complaint involving issues of wider application and importance, the Authority may grant leave when satisfied that it would be assisted by submissions from the intervener.

c)  The fact that a complaint raises issues or principles transcending the circumstances of the complaint is not in itself sufficient to extend rights of hearing or participation beyond the parties.

d)  The Authority will consider the relevant expertise or the unique position of an intended intervener as well as the impact of the intervention on the hearing.

[16]  Considering these principles, the nature of the relevant jurisdiction issues and the parties’ submissions, we consider it appropriate to grant RCR’s application. We are conscious of the decision’s implications for other online broadcasters and consider the Authority is likely to be assisted by submissions from RCR, which is represented by experienced counsel.

[17]  However, the quality and timeliness of decisions is always a paramount consideration of the Authority. In this case, the nature of WK’s complaint, which requires a preliminary determination of jurisdiction, means any resolution of the complaint will already be prolonged beyond what might normally be expected. The involvement of a third-party risks further delay. For these reasons, in the interests of ensuring the timeliness of our process, RCR’s application is granted on the following conditions:

a)  RCR is granted leave to intervene on the question of the Authority’s jurisdiction over The Platform only.

b)  RCR’s rights as intervener extend to the filing of written submissions, for consideration by the Authority, in accordance with the timetable below.

c)  To the extent RCR’s circumstances raise issues which are not relevant to the Authority’s jurisdiction over complaint 2025-063, such issues will not be considered or determined by the Authority.

d)  The Authority’s determination of its jurisdiction regarding complaint 2025-063 will be resolved on the papers, in accordance with its usual processes.

e)  RCR and the parties will provide submissions on issues of jurisdiction in accordance with the following timetable:

i)  RCR will provide its submissions to the Authority within 10 working days[7] from the date of this decision.

ii)  WK and The Platform will provide to the Authority any submissions in response within 10 working days of receipt, from the Authority, of RCR’s submissions.

For the above reasons the Authority grants NZ Media Holdings 2023 Limited’s (RCR’s) application for leave to intervene on the conditions set out above and orders RCR and the parties to provide submissions (if any) in accordance with the above timetable.

Signed for and on behalf of the Authority

Susie Staley
Chair
10 December 2025    

Appendix

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

1  WK’s referral of complaint to the Authority – 4 August 2025

2  The Platform’s submissions on jurisdiction – 24 October 2025

3  WK’s submissions on jurisdiction – 30 October 2025

4  The Platform’s further submissions on jurisdiction – 3 November 2025

5  RCR’s application for leave to intervene – 10 November 2025

6  The Platform’s further submissions on jurisdiction – 12 November 2025

7  The Platform’s submissions on RCR application – 17 November 2025

8  WK’s submissions on RCR application – 26 November 2025

9  WK’s further submissions on jurisdiction – 26 November 2025

¹ See Broadcasting Standards Authority (19 August 2020) "Application of the Broadcasting Act to Online Content" <bsa.govt.nz> and Broadcasting standards Authority (19 November 2019) "Application of the Broadcasting Act to Internet Content" <bsa.govt.nz>
² Section 12 of the Broadcasting Act 1989 provides for sections 4B,  4C, 4D, 5, 6, 7, 8, and 9 of the Commissions of Inquiry Act 1908 to apply to the Authority for the purposes of the Authority’s consideration of complaints.
³ Section 21(1)(c)
⁴ Section 4B(1) states, ‘The Commission may receive as evidence, any statement, document, information or matter that in its opinion may assist it to deal effectively with the subject of the inquiry, whether or not it would be admissible in a Court of law.’
⁵ We note, for example, s4A(3) would accord approved interveners the right to ‘appear in person’ – potentially conflicting with the Authority’s s10(2) power to determine complaints without a formal hearing. 
⁶ These principles mirror those applied in considering similar applications in Ngati Whatua Orakei Trust v Attorney-General [2017] NZCA 183 at [11] and Borrowdale v Director-General of Health & The Attorney-General [2020] NZHC 1379 at [20].
⁷ Under s 2(1) of the Act, working days do not include ‘the period commencing with 25 December in any year and ending with 15 January in the following year’.