Stacey Wood
Chief Executive
Broadcasting Standards Authority
Level 2
119 Ghuznee Street
Wellington 6011
16.10.25
Dear Stacey
We are writing to you regarding the BSA’s recent attempt to establish jurisdiction over the Platform, and by
extension any online content distributor the BSA considers to meet the definition of “Broadcaster.”
We believe this foray into the public arena of free speech is a regrettable decision on the part of the BSA,
and one as Chief Executive we strongly believe you should reconsider.
Here’s why.
1: Jurisdiction
You contend that the Broadcasting Act 1989 empowers you to regulate online content providers such as the
Platform, and are quoted in a New Zealand Herald article on October 15 as saying: “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.”
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If we’ve learned anything over the last 24 hours, it’s that the BSA’s view of its jurisdiction extending to
online is at a minimum highly contestable. Given the Act is very specific about regulating public broadcast
television and radio, several legal commentators consider the Authority to be acting
ultra vires, or well
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beyond your legal remit. This is a view that we share.
We believe it is not for the BSA to expand what it considers to be it’s area of operations without clear,
legislative guidance from Parliament. We note you have been calling for updated legislation for some time,
and that would no doubt be helpful, but in the absence of a new legal framework and mandate the
Authority has not suddenly gained the right to unilaterally increase its regulatory influence into
independent content creators publishing exclusively on the Internet.
2: Threat to Free Speech
We perceive the the Authority’s action to be informed more by a philosophical position of needing to
challenge Sean Plunkett and the Platform on the content of the original complaint, rather than guided by a
strong legal position as defined by the Act.
We believe that is of deep concern, and particularly as your action directly encroaches on New Zealander’s
rights to free speech.
You are quoted in the same Herald article as saying that free speech is at the heart of your mission, and that
you do not seek to censor anyone. “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.”
However, you are also quoted in a Radio New Zealand article from this morning as saying the following:
"Our vision is freedom of expression and broadcasting without harm, and freedom of expression is where
we start. Always. We just disagree that freedom of expression means an absolute right to freedom of speech
to say whatever you want.”
Regrettably for your argument, freedom of expression and freedom of speech actually DO mean an absolute
right to say to whatever you want. That is PRECISELY what they mean. In the cases where speech crosses
the line into criminality, such as blackmail, extortion, threats of violence, or defamation, that speech is
covered by other acts of Parliament, with enforcement action brought by an appropriate authority such as
the Police. It is not for the Authority or you as its CEO to determine what constitutes “harm.”
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Critically, you cannot claim to uphold freedom of expression, and then simultaneously seek to curtail what
people can say on the Internet or sanction them for it without defying both logic and the bedrock principle
free speech is built upon.
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Seen through that prism, your action against the Platform appears as either a wholesale land grab over New
Zealanders’ free speech rights, or a quixotic quest for relevance (or both). Neither is in fact acceptable.
You yourself have admitted this is the first case of its kind, and is therefore untested. Presumably you are
seeking to create a precedent for the Authority, and perhaps that way ensure it’s longevity, or you genuinely
believe in the substance of the complaint.
While you may perceive the Authority’s actions as seeking to achieve some kind of social good, we would
counsel both you and your Board that this is an excellent time to remember the maxim: “The road to hell is
paved with good intentions.”
3: Likely Costs to the Taxpayer
As Chief Executive, you must be keenly aware that unless the Authority revises its position, legal action
against it is inevitable, and that any action through the courts will come with a strong probability of the
Authority losing.
We are far from alone in believing you are on very thin legal ice, and more likely than not to lose in court.
Your costs in defending your position are likely to run well north of six figures, and if you lose, the
Authority is also highly likely to be found liable for the legal costs of the Platform. The Platform may well
choose to bring other claims, which if successful could also result in punitive damages.
Given these expenses will be considerable, and will be borne by the taxpayers of New Zealand, the
Authority’s position is at best ill-advised, and at worst morally untenable. You will be using precious
taxpayer funding to do little more than seeking to impose your authority where it neither currently extends,
nor indeed belongs.
4: More Flies with Honey
We would politely ask that you and your Board change your position on this matter and depart from your
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current course of action.
You must see that the Broadcasting Standards Authority is strongly opposed by a large part of New Zealand,
including political opposition from the Free Speech Union, the former Deputy Prime Minster and the
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current one, by many MPs, by parts of the private sector that have offered to fund Plunkett’s legal costs, and
by a large section of the public who are no doubt contacting you today (we hope their correspondence has
been civil).
Pursuing this course can only alienate you further from the public you hope to serve and the Parliament you
ultimately answer to, as you are not in reality standing for a moral position which will better society, but a
more personal one about what the Authority considers acceptable public speech in online forums beyond its
legal sphere of influence.
A better way forward would be to redouble your efforts at lobbying Parliament for updated legislation,
where the public could at least have a say on the relevance and contours of the Authority’s role and
responsibilities.
The alternative is to have the whole exercise backfire on you completely, resulting instead with your
legislative abolishment.
Thanks for your time.
Yours Sincerely,
Section 9(2)(a) OIA
Matt
Section 9(2)(a) OIA
Also on behalf of:
John
Richard
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Mark
Section 9(2)(a) OIA
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