BSA to consider first complaint about an online broadcaster
The Broadcasting Standards Authority has confirmed it has jurisdiction to consider a complaint about content transmitted by an online broadcaster.
In a decision published today, the Authority determined it can accept, and is required to consider under the Broadcasting Act, complaints about The Platform’s Live Talkback programme, because the programme meets the Act’s definition of ‘broadcasting’.
The decision relates to a complaint, received last year, which was the first the BSA had received about an online broadcaster since it published its policy on online broadcasters in 2020. The Authority has followed this policy in dealing with the complaint.
The Act defines broadcasting broadly, covering (with some specific exceptions) audiovisual content that is transmitted to the public by any form of telecommunication.
The BSA decision found programmes broadcast on the internet are transmitted to the public by “telecommunication”, as referred to in the Act’s definition of broadcasting – applying an interpretation based on plain English and the purpose of the legislation.
The 1989 legislation “was designed to provide for the maintenance of programme standards in New Zealand broadcasting at a time of deregulation and rapidly evolving technology” and reflects an intent that audiences continue to have appropriate protections as broadcasting evolves, the Authority said.
It also found that an exception to the Act’s definition of broadcasting, which excludes “on-demand” transmissions, did not apply to The Platform, as a broadcaster of live or scheduled online programmes intended for a New Zealand audience.
The Authority has not found it has jurisdiction over on-demand content delivered by the likes of Netflix, AppleTV, Prime Video, Disney+, YouTube, or other overseas entities streaming content for New Zealand audiences, nor over personal online content posted or livestreamed by individuals.
“Having determined the Act applies to programmes streamed by an online broadcaster, 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 broadcaster that is the subject of the relevant complaint, but our initial research suggests there are a limited number of entities within this group,” the Authority said.
“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’. 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.”
In response to suggestions the Authority should leave any regulatory gaps for Parliament to address, the Authority noted: “We have been calling with increasing urgency for Parliament to update the [Broadcasting] 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.”
Before reaching its final decision on jurisdiction, the Authority considered submissions from the broadcaster, the complainant, and Reality Check Radio (which was granted leave to make submissions as an intervener), along with a detailed legal analysis of how the Broadcasting Act applies to today’s environment, which the BSA has made publicly available.
The Authority will now consider and issue its decision on the substance of the complaint.
It will continue to accept complaints about relevant online broadcasters in line with its existing policy until further jurisdiction review work is completed. Under this policy, it will not at this time seek to extend to online content providers the requirements around public notices or levies (which are payable only by outlets earning more than $500,000 a year from broadcasting in New Zealand).
ENDS
FURTHER INFORMATION
The BSA’s consideration of this decision has stimulated discussion about the BSA’s role under the Broadcasting Act 1989. Certain statements made as part of this debate are fact checked here.
The full decision published today can be seen here.
ABOUT THE BROADCASTING STANDARDS AUTHORITY
The BSA is an independent Crown entity that oversees the broadcasting standards regime in New Zealand. It determines complaints that broadcasts have breached standards, undertakes research and oversees the development of broadcasting standards in consultation with broadcasters.
For more information see our website: www.bsa.govt.nz