Beyond Broadcasting

A Power Grab by the Broadcasting Standards Authority

Introduction

The Broadcasting Standards Authority (BSA) has been around since 1989 and is charged with setting and maintaining standards for broadcasting platforms. As the Internet and the onset of the Digital Paradigm shifts the information landscape, other forms of information communication and other platforms are intruding on the space which Mainstream Media once claimed for itself.

In this article I briefly outline the history of broadcasting in New Zealand and the State’s interest in it. I discuss the role of the Broadcasting Standards Authority and the standards that it sets.

I then go on to outline some of the ways in which new technologies challenge the Mainstream Media method of operating and broadcasting in particular and then examine some of the recently expressed concerns of the BSA and what they propose. I suggest that they wish to extend their jurisdiction well beyond broadcasting and I consider why this is a bad idea. I then locate what is proposed within a wider context of communication and information control that characterized the Ardern Hipkins Government and conclude with a flashback to the early days of the Internet.

Broadcasting in New Zealand

Background

Radio broadcasting was originally carried out by private broadcasters, but was tightly regulated by the Post and Telegraph Department. In 1936 the Labour government placed broadcasting under direct ministerial control through the National Broadcasting Service (NBS).

The introduction of television provided the incentive for establishing a public, as opposed to state, broadcasting system. In 1962 the New Zealand Broadcasting Corporation (NZBC), a government-appointed board, was established to control broadcasting, giving state-funded radio and television a degree of independence from government control.

Deregulation and the development of private radio and television since the 1980s has meant that public broadcasting now competes with private broadcasters. In 2012 the main public service broadcasters were TVNZ, Radio New Zealand and Māori Television. Radio New Zealand and Māori Television relied largely on government funding. In contrast, TVNZ received 90% of its funding from advertising. This has raised questions over TVNZ’s ability to deliver quality public-service broadcasting, in particular news and current affairs.

Broadcasting was regulated by the Broadcasting Act 1989. This required broadcasters to uphold standards of:

• decency and good taste

• the maintenance of law and order

• privacy of the individual

• balance – the reasonable effort to present a range of significant views on controversial issues of importance.

The enforcement and development of standards is carried out by the Broadcasting Standards Authority.

The Broadcasting Standards Authority.

The BSA is an independent Crown entity established under the Broadcasting Act 1989 (the Act) whose four members are appointed by the Governor General. One of its main functions relates to complaints and includes publicising procedures in relation to complaints.

Its jurisdiction covers radio and television broadcasting and extends to online programmes as long as these were originally broadcast on television. The BSA not only receives and determines complaints against broadcasters where the complainant is dissatisfied with the broadcaster’s response to their complaint, but can receive and determine privacy complaints if the complainant choses to complain directly to it.  Complaints about election programmes must also be made to directly to it.

In the year ended June 2023 the BSA received 169 formal complaints and issued 121 decisions of which 7 were upheld. 100 complaints were not upheld and in 13 cases the Authority declined to determine.

The BSA can decline to hear a complaint if it considers the complaint is frivolous or vexatious or that in all the circumstances it should hear the complaint.  While the latter appears to give the BSA an unfettered ability to decline to hear a complaint Asher J in Reekie v Television New Zealand (HC Auckland  CIV-2010-404-004893 November 2010) inclined to the view that it was reserved for a complaint that had a gross problem in form, such as one that was unintelligible, or where the complaint was not properly signed or authorised.

Section 4(1) of the Broadcasting Act sheets home the responsibility of the broadcaster for certain broadcasting standards.

Section 4(1) provides as follows:

“Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with—

(a) the observance of good taste and decency; and

(b) the maintenance of law and order; and

(c) the privacy of the individual; and

(d) the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and

(e) any approved code of broadcasting practice applying to the programmes.”

Section 4 (3) makes it plain that a failure to comply with the standards does not give rise to any civil liability on the part of the broadcaster.

The BSA regulates compliance with the standards. It has an important role in overseeing and developing the standards, as it is required by section 21(e) of the Broadcasting Act to encourage the development and observance by broadcasters of codes of broadcasting practice.

In turn broadcasters are encouraged to consult with interested parties. The Act identifies areas where these might be developed including codes in relation to the protection of children, the portrayal of violence, the privacy of the individual and restrictions on the promotion of alcohol.

If appropriate the BSA itself may develop and issue codes of broadcasting practice in relation to these areas. It is able to issue advisory opinions relating to broadcasting standards and ethical conduct in broadcasting, and must conduct research and publishes findings on matters relating to broadcasting standards. The BSA must act independently in performing its statutory functions and duties and in exercising its statutory powers.

Broadcasting Standards and Scope

There are four Codes of Broadcasting Practice: the Radio Code, the Free-to-Air Television Code, the Pay Television Code, and the Elections Programmes Code. The current version of the three main codes of practice was completed and took effect from July 2022 and was developed by the BSA and broadcasters along with consultation with other stakeholders and the public.

The introduction to the Codebook makes the comment “As we look to the future by amending the Broadcasting Codebook, we are constrained by the past,” observing that:

“The internet, and the technologies it has enabled, have led to dramatic shifts in modes of communication, and to the sheer amount and variety of information and content accessible.

While there have been great benefits to society, there is also much discussion and concern about the role these changes play in the spread of misinformation and disinformation, harmful material, polarisation, impact on ‘traditional’ elements of the media sector, like broadcasting, and on democracy itself.”

The language of the introduction contains a “hat-tip” to the New Zealand Bill of Rights Act 1990 but is somewhat guarded in its endorsement of the importance of the freedom of expression.

“….we need to ensure, as much as our legislation allows, that the code reflects the modern context and is easy for audiences to understand. We must also do so in a way which does not unduly restrict freedom of expression – a cornerstone of robust democracies, which is protected in the New Zealand Bill of Rights Act.”

The 2016 Codebook contained no such commentary, rather emphasizing

“New Zealand is a liberal democracy where we value broadcasters’ programming, both as an exercise of broadcasters’ right to freedom of expression and for the vibrant exchange of information and ideas that is generated. Broadcasters can hold the powerful to account. They can express our identity. They can reflect and stimulate culture. They can teach us about our lives and our world. They can entertain us. Their role is vital, and the law and common sense require us to be cautious before restricting their endeavours.

On the other hand, broadcasters also have potential to do harm. Broadcasting standards recognise these harms and seek to guard against them. It can often be difficult to strike a balance. It is the responsibility of this Authority to hold the balance in the public interest.”

How times have changed.

As a further example of the change in emphasis in the “mission” or “purpose” of the BSA is this statement from the 2017 Annual Report.

“Our purpose is to oversee New Zealand’s broadcasting standards regime so that it is fair to all New Zealanders, by balancing broadcasters’ right to freedom of expression with their obligation to avoid harm to individuals and society.”

Compare that statement with this one from the 2023 Annual Report:

“Our purpose is to prevent harm to New Zealanders, while fairly balancing the broadcasters’ right to freedom of expression and reflecting the values of New Zealand’s liberal democratic society.”

Fairness to all New Zealanders has been replaced by prevention of harm which seems to be a mantra used by Government agencies involved in media and communications such as the Department of Culture and Heritage and the Department of Internal Affairs and was first introduced in the BSA Mission Statement in 2019. The shift to control of the messaging based on a paternalistic authoritarianism was a characteristic of the Ardern\Hipkins Government.

But back to the Codebook.

The Codebook has a detailed commentary on each standard and updated guidelines for each of the three codes together with updated guidance on the complaints process, privacy, distinguishing fact and opinion and the BSA’s power to decline to determine a complaint and award costs.

The content of each Code is substantially similar, being divided into standards and then more detailed guidelines that inform the interpretation of the standards. The standards are applied differently in relation to pay television recognising the particular circumstances of pay television.

New Technology Changes

The BSA has jurisdiction over broadcast media – radio and TV. But therein lies the problem. Broadcasting is defined in the Broadcasting Act as

“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”

The critical aspects are the use of radio waves (spectrum) and broadcasting receiving apparatus along. This excludes transmission of information via the internet which means that online “radio” platforms such as “The Platform”, “Reality Check Radio” and the rather dire “Counterspin Media” are not included and are not subject to the jurisdiction of the BSA and are not bound by the Codes.

What needs to be understood is that the Internet has democratized information distribution to an extent never before experience in the history of communication. When the Broadcasting Act was enacted as part of the reforms of the then Labour Government, news and information distribution was in the hands of monolithic media organisations – print and broadcast – which used a centralized “one to many” distribution system.

The Internet has changed that, enabling a “many to many” distribution systems and has also enabled, by means of the quality of “permissionless innovation, platforms that allow every individual to be a publisher or distributor of audio-visual or print material. This means that enterprising individuals can, and have, set up alternative commercial information distribution platforms that challenge established mainstream media. And these organisations are not subject to oversight from the BSA nor the NZ Media Council.

What Does the BSA Want?

The constraints of the past mentioned in the 2023 Annual Report were amplified by a press release dated 20 November 2023.

Urgent and long-overdue reforms are needed to bring outdated laws and regulations into line with today’s broadcasting reality and ensure a sustainable media sector, the Broadcasting Standards Authority says.

“As audiences migrate at pace from traditional broadcasting to online and digital platforms, increasingly obsolete legislation is making it more difficult to achieve our mission,” said BSA Chief Executive Stacey Wood.

“Audiences consume media differently now than they did in 1989 – if we are to protect New Zealanders from harmful content and maintain a strong and sustainable media sector, our laws need to change too,” Wood said.

Over the past year, the BSA offered its expertise to support the progress of proposed law changes that would see the Authority administering a new fair bargaining framework for news media and digital platforms, as well as bringing long-awaited wider reform to the regulatory environment.

So what the BSA wants would seem to be:

1.   Updated legislation

2.   An increased jurisdiction over online platforms

3.   Increased powers to protect New Zealanders from “harmful content”

4.   Support for the Fair Digital News Bargaining Bill

5.   Support for the Safer Online Services and Web Platforms proposals put forward by the Department of Internal Affairs

In summary – greater Government oversight of media content.

Why is this a Bad Idea

Dealing first with the “harmful” issue. This has assumed greater focus in the mission statements of the BSA but in reality complaints to the BSA should be based on breaches of the various Codes.

The issue of harmful content is adequately address by the Classification Office acting under the Films, Videos and Publications Classification Act 1993 (in the case of objectionable content which must meet certain clearly defined guidelines) and the Harmful Digital Communications Act 2015 which addresses harmful electronic communications which, in these times, could encompass pretty much any form of digital communication.

Items 1 and 2 – the updated legislation and am increased jurisdiction over online platforms would seem to suggest a “power grab” or a widening of the scope of jurisdiction from broadcasting to other forms of communication.

One wonders if this is not so much a desire to adapt as a recognition of a growing irrelevance of the broadcasting medium as a form of social Darwinism drives broadcasting to the fringes. The reality is that the BSA deals with broadcasting and that has been its mandate since 1989. It is a part of the continuing Government “interest” in broadcasting media since the formation of the national broadcasting service.

Although the BSA has a significant brief as far as broadcasting is concerned it is a part of a larger light-handed regulatory model that is currently under threat as those who love to regulate – and what bureaucracy or government doesn’t; it is part of their raison d’etre – seek to increase their powers of control over communications. This is demonstrated by the support that is offered for the Fair Digital News Bargaining Bill and the Safer Online Services and Web Platforms proposals – initiatives that have nothing to do with broadcasting but everything to do with the communication of information.

Clearly the BSA is attempting to extend its mandate. It is the view of this commentator that it should “stick to its knitting”.

A Deeper Problem?

But the proposals and the comments by Ms Wood suggest a deeper and more concerning issue. The BSA has been aware of the incursions of the Digital Paradigm into the area of communications. This paradigmatic shift, with its accompanying elements of permissionless innovation and continuing disruptive change challenge earlier models of communication and expectations of information.

The reality is that with the democratization of information enabled by the Internet citizens now look to a number of sources for information and for news. And the powers that be – Government and bureaucracy – are doing everything that they can to assert control over the messaging advancing anodyne weasel words like a “safer” internet.

There seems to be a determination, as far as content is concerned to adopt a paternalistic “we know best” approach to the rationale for on-line regulation with little comprehension about how this erosion of the freedom of expression is but the beginning of a greater landslide of loss of that freedom and the limiting of the expression of ideas.

In some respects it is a continuation of Ardern’s “single source of truth” mantra, the weaponization of words and the campaign against contrary or individualized opinions in favour of a collectivist mindset, swaddled in “safety”, nurtured by an information equivalent of Huxley’s soma from Brave New World.

These themes all carry with them the Critical Theory approach to control of information and of communications. They are themes that we seem not only in the pronouncements of the BSA, the DIA and the Department of Prime Minister and Cabinet but also from FACT Aotearoa, the Ponele Anti-Fascist Coalition, Tamaki Anti-Fascist Action, Internet NZ and the Disinformation Project – all of them seeking control and limitation of internet content and an opposition the freedom of expression which , in the minds of the Antifa organizations is equated with “hate speech”.

Conclusion.

In 1996 John Perry Barlow published the Declaration of Independence of Cyberspace. It is a little dated now but some of the sentiments are still valid.

Barlow anticipated the desire of Governments to regulate what was then a new means of communication that had not gone completely mainstream. Barlow was an American poet, essayist, cattle rancher, and cyberlibertarian political activist who had been associated with both the Democratic and Republican parties. He was also a lyricist for the Grateful Dead, a founding member of the Electronic Frontier Foundation and the Freedom of the Press Foundation, and an early fellow at Harvard University's Berkman Klein Center for Internet & Society

I reproduce a few excerpts that appear to me to be relevant to the desire the BSA to stretch its reach.

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear….

You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live…

We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity…

You are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.

Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no more noble than pig iron. In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.”