Media Insider: Sean Plunket and The Platform ‘going to war’ with Broadcasting Standards Authority after watchdog claims jurisdiction over online comment

Sean Plunket labelled the person who complained about a comment he made on The Platform a “plonker”. Photo / File

On The Platform on Wednesday, Plunket heavily criticised the BSA.

“This is the biggest threat to The Platform and its ongoing survival and the freedom of speech that we were set up to encourage. This is the Orwellian bureaucrats coming for us.

“I can lie down, I can walk away, or I can fight, but if I fight, it is going to be difficult and tough. It’s a hill I’m prepared to die on.”

He sought his audience’s views on releasing the documents “because if I do, we’re going to war”.

A few minutes later, he read out from the documents.

The BSA, meanwhile, has explained its position in a response to Herald questions.

“Yes, we are aware of the ramifications of this decision,” said chief executive Stacey Wood.

NZ First leader Winston Peters said the BSA’s position was “outrageous”.

“Why does the Broadcasting Standards Authority think they can make up their own rules in secret meetings to act like some Soviet era stasi,” he said on social media.

NZ First leader Winston Peters has accused the Broadcasting Standards Authority of “blatant overreach”. Photo / VNP

“The blatant overreach on display by the BSA now dictating they can censor and monitor anything transmitted on the internet is highly concerning. Can the BSA please tell us what the legal basis is for their recent outrageous action.”

Media and Communications Minister Paul Goldsmith said in a statement to the Herald: “As minister, I cannot comment on operational matters or individual cases. However, my officials will be keeping me updated due to the potential impacts on media regulation.”

The complaint

On July 22, Plunket referred to tikanga Māori as “mumbo jumbo” as he commented on a new kaupapa Māori proposal from Fire and Emergency New Zealand.

On July 31, complainant Richard Fanselow wrote to The Platform: “Definition of racist – a definition of a racist is someone who spends a disproportionate amount of time focusing on just one racial group, mainly to emphasise negative characteristics.

“So that’s pretty much a definition of The Platform and its male front people, isn’t it? Making this a probably futile exercise, but one the [Broadcasting Standards] Authority requires. That is to invite comment from the media outlet involved before lodging a complaint with the authority. So that’s what I am doing here.

“My complaint is about Mr Plunket so casually referring to all the customs and beliefs of Māori – tikanga – as mumbo jumbo – a term with a historic racist beginning.

“Casually, as if such a description is of no consequence – it’s what most people think. It is what Mr Plunket may think – coming as it did in the middle of his sarcastic, scornful references to a Māori issue, complete with his totally childish, exaggerated and drawn-out pronunciations of Māori words.”

Plunket responded to Fanselow the next day: “You plonker. We aren’t subject to the Broadcasting Standards Authority.”

Fanselow then took the matter to the authority, asking it if Plunket was correct. “Is there any kind of remedy for such obviously racist talk?”

The BSA’s provisional decision

In a “provisional interlocutory decision”, marked “not for publication”, the authority said it had accepted jurisdiction “on the basis the transmission of the programme met the Broadcasting Act’s definition of ‘broadcasting’”.

“Taking 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.

“As there is currently no code of broadcasting standards specifically addressing the online broadcasting context, the complaint will be considered with a view to determining the broadcaster’s compliance with its obligations under section 4 of the act.”

However, 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 asked Plunket for submissions on its provisional decision by November 12.

“You’ve reached a provisional decision without talking to me, and now, post-factual, you want me to comment on it?” Plunket said to his audience.

“I’m not playing that game. You don’t have authority over me.”

He said The Platform was a “digital media platform – radio is a specific method of transmission, which we don’t do”.

He said the BSA was “really pushing the boat out here”.

“I reckon you’ve got to go back to Parliament. I reckon Parliament’s got to ask whether the Broadcasting Standards Authority even has a reason for existing.

“You can’t make up the rules as you go along, and after three years, you can’t change the rules on me.

“The problem is if I’m caught, everyone’s caught every time you go live – anyone who wants to communicate with an audience via the internet without the expense, without setting up a massive terrestrial broadcasting structure, you are all going to be covered by the BSA if you’re a company.”

“I think the Broadcasting Standards Authority is a joke. I think what it’s done is appalling and Orwellian.

“I will not comply.”

The BSA responds

Wood said, “as the regulator of the Broadcasting Act for the last 36 years, yes, we are aware of the ramifications of this decision”.

“As described, this decision is provisional and was provided to the broadcaster and the complainant for comment. This was signed off by the board in the normal way – it’s an interlocutory decision only, so not an assessment of the merits of the complaint.”

Broadcasting Standards Authority chairwoman Susie Staley. Photo / Supplied

The BSA board is chairwoman Susie Staley, former TVNZ head of news John Gillespie, Aroha Beck and Karyn Fenton-Ellis.

Wood said the BSA’s jurisdiction had always been determined by the Broadcasting Act.

“We have no intention of acting outside the act – our view is that online broadcasting that resembles a traditional TV or radio station falls within our existing jurisdiction.

“The definition of ‘broadcaster’ and ‘broadcasting’ in Section 2 of the act isn’t limited to TV or radio – it talks about programmes transmitted to the public by any means of telecommunication. Laws often have to be applied to changing circumstances – an obvious example is that laws referring to ‘documents’ aren’t limited to paper and parchment, but include PDFs and other digital forms.”

She said the complaint was the first formal referral “about an online broadcaster of a nature we consider clearly falls within our jurisdiction”.

“We have an obligation as a responsible regulator to take it on, while still anticipating reform.

“Our published policy since 2020 has been that, if we receive a relevant complaint and there’s no other applicable standards body or regulator, and if the complaint raises issues of public interest or a risk of harm, we may accept the complaint and engage with the parties using our established processes.”

Wood said the BSA was not seeking to censor the media.

“Our interest is in ensuring the public have access to accurate, reliable media content, and a regulator they can turn to if they think standards are breached. Far from shutting down free speech, freedom of expression is at the heart of every BSA decision.”

Questioned about the wider ramifications, she said it was “not possible to say definitively who is and isn’t covered by the Broadcasting Act”.

“While some types of online media, including The Platform, clearly fall within the wording of the act, applying it to some types of online media would be less clear-cut … we have no intention, or ability, to apply our jurisdiction to every broadcaster worldwide.”

Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME including Managing Editor, NZ Herald Editor and Herald on Sunday Editor and has a small shareholding in NZME.