by David Harvey

For many years it has been accepted that Internet based “radio” platforms like The Platform and Reality Check Radio have not been subject to the jurisdiction of regulatory supervision of the Broadcasting Standards Authority (BSA).

This acceptance has permeated discussions about and proposals for online regulation of Internet “radio” from the Law Commission’s “The News Media Meets ‘New Media’ report of 2013 to the DIA proposals for Safer Online Services and Web Platforms where a single regulatory – the BSA – was suggested.

But the BSA has challenged that accepted understanding of its regulatory scope.

On 22 July 2025 Sean Plunket on the Platform referred to tikanga as “mumbo jumbo”. One Richard Fanselow took umbrage and complained to the Platform on 31 July 2025 before initiating a complaint with the BSA. Sean Plunket’s response was curt and dismissive. He responded to Mr Fanselow saying “You plonker. We aren’t subject to the Broadcasting Standards Authority.”.

Mr Fanselow took the matter to the BSA, asking if Mr. Plunket was correct.

The BSA issued a “provisional interlocutory decision” claiming that jurisdiction existed because the transmission of the programme met the definition of “broadcasting”.

The BSA justified this finding on the basis of a purposive approach to the Act “which is designed to provide for the maintenance of programme standards in New Zealand broadcasting, the act is appropriately seen as capturing such modern forms of broadcasting.”

Shane Currie in the Herald correctly observes that

“that decision seems to fly in the face of years of debate and discussion in which Governments have looked at media regulation in New Zealand – and which agency, if any, covers certain online content.

The regulation and oversight of standards of New Zealand content is currently a mix of full regulation (broadcasting), industry self-regulation (the professional news media) and little to no regulation (social media). In addition, there is a broad range of laws that govern this area.

Until now, the BSA has been focused on traditional television and radio networks and what they have broadcast on air (including later online content).”

The BSA has asked for a response to its “provisional interlocutory decision” from the Platform.

When this matter came to my attention it piqued my interest. I taught Law and IT as well as Media Law part-time for 18 years at Auckland Law School. This was familiar territory to me.

There are some problems with the approach that the BSA has adopted.

First, the optics are not good. If the BSA upholds its “provisional” opinion the clear picture that a reasonable observer will form is that the BSA pre-determined the matter.

Secondly the BSA suggests it is looking at broadcasting from a purposive perspective. But it ignores a considerable contrary position that it has no jurisdiction over Internet “radio”.

The starting point in that discussion is the Law Commission report of 2013. I have indicated the relevant passages from the report after each statement

The report observed that the BSA has jurisdiction over traditional broadcast content, including radio and television, as defined under the Broadcasting Act 1989. (para. 8.6) However, its jurisdiction does not extend to online-only content, such as internet radio or on-demand streaming services, unless the content is also broadcast in a traditional format. (para 4.4)

For example, if a radio station broadcasts content both on-air and online, the BSA may have jurisdiction over the broadcast content but not over content that is exclusively available online. (para 2.57) This distinction arises because the BSA’s mandate is tied to the definition of “broadcasting” in the Act, which excludes content made available on-demand or exclusively via the internet.(para 8.8)

This limitation has been identified as a gap in the regulatory framework, particularly in the context of media convergence, where traditional and online platforms increasingly overlap.(para 6.15) The report suggests that this issue requires attention to ensure consistent standards across all platforms. (Recommendation 33)

In essence, broadcasting, as defined under the Broadcasting Act 1989 in New Zealand, refers to the transmission of programmes to the public by radio waves or other electromagnetic means, including satellite transmissions, for simultaneous reception by multiple people. The Act explicitly excludes internet content from this definition in the following ways:

On-Demand Services: Programmes accessed at the discretion of the user, such as streaming platforms and podcasts, are excluded. (2.58)

Internet-Only Platforms: Content exclusively distributed online, such as internet radio stations, is not considered broadcasting. (8.8)

This exclusion means that internet content is not subject to the same standards and oversight as traditional broadcasting, creating a regulatory gap in the era of media convergence. (4.4)

Curiously enough the “provisional interlocutory decision” makes no reference to this clearly inconvenient finding by the Law Commission.

Nor does it make reference to a paper that was prepared and circulated to interested parties in 2019 by the BSA in which it states a position remarkably similar to that contained in the “provisional interlocutory decision”

The approach of the BSA has been carefully examined by Liam Hehir in a post entitled “The BSA Has Logged On” which came across my screen after the bulk of this article had been written. Liam examines the issue from an interpretative perspective and I commend it for the attention of readers.

But there are technological issues arising as well.

The BSA’s authority traditionally extends to licensed broadcasters using radio spectrum and television. Whether internet-only radio platforms fall under BSA jurisdiction would depend on:

1. Whether they meet the statutory definition of “broadcaster” under the Act
2. Whether their content delivery method qualifies as “broadcasting” under the 1989 legislation
3. Whether they operate under any broadcasting license

The lack of clarity around internet streaming platforms is recognized as a significant regulatory gap, which is why the Labour Government and the DIA initiated the Safer Online Services and Web Platforms proposals.

Broadcast licensing raises an associated issue.

All radio transmitters in New Zealand must either be licensed by a radio licence, spectrum licence or general user licence, or have an exemption from licensing Broadcasting Standards Authority. You need a broadcasting licence if you want to broadcast on radio or television in New Zealand.

These licenses are issued under the Radiocommunications Act 1989 and managed by Radio Spectrum Management (RSM), part of the Ministry of Business, Innovation and Employment (MBIE). The licensing requirements depend on whether you’re commercial or non-commercial:

• Commercial FM: Commercial FM sound broadcasting licences are allocated by competitive allocation, like an auction, or by direct sale Broadcasting Standards

• Non-commercial: New non-commercial radio frequencies only rarely become available but when a frequency or network of frequencies has become available, these will be advertised through a public notice

You must get an Approved Radio Engineer (ARE) to apply for a licence on your behalf Broadcasting Standards Authority

This is the crucial point: Internet-only radio stations don’t need a radio spectrum license because they don’t transmit over radio frequencies. They stream via the internet, which doesn’t require spectrum allocation. I cannot listen to the Platform or Reality Check Radio in my car on the commute.

This means platforms like Reality Check Radio or The Platform that operate purely online would not hold traditional broadcasting licenses.

From a procedural point of view the BSA has made a significant error. Although it describes its decision as a provisional interlocutory decision what it should have done was notified the Platform that it had received Mr Fanselow’s complaint which raised a jurisdictional issue. It should have called for submissions from the Platform as well as from Mr Fanselow (or perhaps an amicus curiae and indeed other interested parties) as to whether the BSA had jurisdiction.

After it had heard such argument it could have made an informed decision giving full reasons.

As I said, the optics are not good and embarking upon a proper procedure would have dispelled those problems. And the matter is further complicated by the BSA’s discussion paper of 2019.

As matters stand not only does there seem to be an issue of predetermination but perhaps the BSA being a judge in its own cause.

A final matter demonstrates the naivete of the BSA when it comes to the Internet. Did they really believe that their provisional interlocutory decision would remain confidential. They didn’t even suppress publication – if indeed they had the power to do so.

The decision is out on the Internet for all to see. I could go through it line by line to demonstrate how wrong it is but I have raised some general propositions based on authority rather than a self-serving purposive approach.

In some respects that approach is rather like having two cars. One runs on petrol and the other on diesel. Both cars share a purpose. But their motive power is different. As is the case with the BSA. The statute is the engine that prescribes their jurisdiction. They can’t drive a diesel engine on petrol – much and all as they might like to.

But really this case is not about the validity of Mr Fanselow’s complaint. The big prize in this case is the assumption by the BSA of jurisdiction over Internet “radio” platforms.

That wider scope of jurisdiction would approach that envisaged by the Safer Online Services and Web Platforms proposals.

If the higher courts don’t rule the BSA out of order then Parliament will have to step in.

Originally published on A Halfling's View.