The purpose of this paper is to examine the provisional interlocutory decision of the Broadcasting Standards Authority.
I have already expressed my preliminary view. In this article I dig a little deeper into the law upon which the BSA arrives at its conclusion.
In this article I set out a short history of some of the main features of regulatory structures surrounding the media. I then turn to a paper that was issued by the BSA in 2019 where it asserted that it had jurisdiction over internet based radio platforms. That document forms the basis for the provisional interlocutory decision.
I then turn to that decision and examine the basis upon which the BSA asserts jurisdiction and consider whether or not that basis has a solid legal foundation.
Introductory
In 1972 the Kirk Labour Government was giving thought to regulating the Press. Various news media outlets were concerned about having a regulatory structure imposed upon them. In a pre-emptive move media outlets got together and formed the NZ Press Council – a voluntary organisation that settled on a number of principles that would guide it when dealing with complaints.
Fast forward to 2013. The Law Commission released its report “The News Media Meets ‘New Media’” and it proposed a regulatory structure to replace the BSA and the Press Council. Those media organisations which had an online presence once again took a pre-emptive step on set up another organisation – the Online Media Standards Authority to cover the online content regulatory gap identified by the Law Commission.
OMSA had a short life and was absorbed into the Press Council which was renamed the New Zealand Media Council. It hears complaints against newspapers and other publications, particularly regarding allegations of bias and inaccuracy.
Radio and television remain under the jurisdiction of the BSA
The 2019 BSA Paper
A paper entitled “Application of the Broadcasting Act to Internet Content” is dated 19 November 2019. It was prepared to enable content providers to understand the BSA’s approach to the application of the Broadcasting Act 1989 (the Act) to content transmitted over the internet, and our views on who is subject to the classification and standards requirements in the Act.
It sought the views of content providers and wanted to work with broadcasters to put in place the necessary frameworks and a code of broadcasting practice which is suitable for internet broadcasters that fall within the scope of the Act, and which is suitable for technologies that exist now and that may develop in the near future.
The paper reaffirms the accepted position. It states
“Traditionally broadcasting has been seen as capturing free-to-air television, pay television and radio broadcast in New Zealand. Over the years BSA’s jurisdiction over internet content has been recognised where the content has been broadcast on television or radio and is also made available on demand, and where the content is simulcast on the internet and television and/or radio at the same time. This is justified as the Act defines broadcasting to include transmission of programmes by ‘any other means of telecommunication’ for reception by the public.”
There are no difficulties there. BSA jurisdiction is engaged where a traditional broadcaster makes content available via broadcast or online. The crux of the matter is that the content has been the subject of a broadcast in the generally accepted sense.
Interestingly the BSA assumed jurisdiction in the case of Phillips and Racing Industry Transition Agency in which it concluded that the BSA has jurisdiction to consider complaints about a programme that has been simultaneously broadcast on television and streamed on the internet (simulcasts). The critical things that engaged jurisdiction in Phillips was that the content was broadcast on TV as well as a simulcast.
The BSA observed in Phillips that the Authority has also previously accepted that it may consider complaints about a programme which is viewed on the internet where it has also been broadcast in full on television.
In the decision of McKenzie and 95bFM the Authority found it had jurisdiction to consider a complaint about a programme simulcast on the internet and radio, stating:
The Authority notes that the complainant heard the comment via the internet. While the Authority’s jurisdiction over internet content is limited, it accepts that a broadcast which is also simulcast on the internet does fall within its jurisdiction.
The BSA does not have jurisdiction to consider complaints about YouTube content that is available on demand, as on demand content is excluded from the definition of broadcasting under the Broadcasting Act 1989.
Thus the BSA accepted then – and accepts now – that the Act does not apply to on-demand content. That is specifically stated in the Act.
One of the distinctions that the BSA makes about online programmes is that programmes that are transmitted online in a linear form (ie playing continuously) are broadcasting and not on-demand. An example of this is Edge TV.
Livestreamed programmes such as Spark Sport Live for reception by the general public also fall within the definition of a broadcast.
The BSA involved the provisions of the Interpretation Act 1999 stating that legislation applies to circumstances as they arise. We must therefore ensure that we apply the Act to modern technologies, not just those that existed in 1989.
It also adopted the purposive approach stating:
“We consider that our interpretation is consistent with the purpose of the Act and the broadcasting standards regime which is to provide community safeguards through the application of standards and classifications that mitigate against potential harm to New Zealanders from content which is broadcast, through whatever means. verb ‘to broadcast’ is not limited to casting through radio and television; it is a broad term which refers to the conveyance of information to a wide range of recipients. The Act does not limit the definition of broadcasting to television and radio only, and so it is incumbent on the BSA to ensure we take a purposive approach to the interpretation of our responsibilities under the Act.”
What the BSA has done is to apply a content focussed approach to the issue of jurisdiction. It seems to suggest that irrespective of the means of distribution if content fulfils certain criteria it becomes a broadcast and BSA jurisdiction applies.
That, however, ignores the technological realities that reside in the definition of “broadcasting” and which I shall discuss at a later stage.
The Preliminary Interlocutory Decision
This decision was released to Sean Plunket of The Platform following a query from a complainant Roger Fasnelow querying whether Plunket was correct in asserting that the BSA had no jurisdiction.
The decision reflects – coincidentally – much of the reasoning present in the November 2019 paper.
The decision commences by asserting
“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.”
The decision starts by observing that the Act applies to broadcasters and expands on that by considering the definition of broadcasting to which I have already referred. It also considered the nature of a programme.
The BSA went on to state:
Based on these definitions, we consider The Platform was broadcasting when airing the relevant content:
a) The definition of ‘programme’ is broad and would readily capture the
audio and visual content in The Platform’s Live Talkback offering.
b) The Platform also ‘broadcast’ the programme by virtue of having
transmitted it:
i) by ‘other means of telecommunication’ – a broad expression capable of capturing conveyance through the internet; and
ii) ‘for reception by the public’ by means of a ‘broadcasting receiving apparatus’, which we consider includes any device which enables a member of the public to receive the transmission of relevant
programmes through the internet, including a computer or mobile
device.
The very broad assertion that the word “telecommunication” is a broad expression capable of capturing conveyance through the internet has neither rationale nor explanation given. Yet it is a technological matter that is essential to grounding the decision of the BSA to assume jurisdiction.
The BSA then goes on to observe:
“While this type of broadcasting may not have been contemplated when these provisions were drafted, under section 11 of the Legislation Act 2019, legislation applies to circumstances as they arise. Taking a purposive approach to the Act, which is designed to provide for the maintenance of programme standards in New Zealand broadcasting, it is appropriately seen as capturing such modern forms of broadcasting.”
The line of approach as far as jurisdiction is concerned is almost identical to that adopted in the November 2019 paper.
The balance of the decision deals with the applicable broadcasting standards.
Both the 2019 paper and the Provisional Interlocutory Decision skate over the issue of whether an internet-based broadcast platform transmits by “other means of telecommunication”. Yet an analysis and discussion of this critical point is lacking.
My experience when considering issues of internet regulation is to look first at the technology. Only by doing that can one ascertain if the existing law applies or whether there is a regulatory gap.
The approach preferred by the BSA seems to be grounded on content rather than the means of delivery. Clearly they have fallen for one of Marshall McLuhan’s aphorisms that content was the “piece of meat that attracts the lazy dog of the mind” and they are clearly unaware of McLuhan’s other more notable (yet opaque) aphorism “The medium is the message” essentially saying that it is not the content that is important but the way that it is delivered that must be understood in assessing its impact.
I shall now turn to consider whether or not an internet radio platform falls within the definition and concept of a broadcaster in the Broadcasting Act.
Broadcasting
Broadcasting is defined in the 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”
The BSA relies on the wording “other means of telecommunication for reception by the public” to ground jurisdiction over internet radio platforms.
Thus, the question becomes a technical one. Are internet radio platforms transmitted by a means of telecommunication?
Telecommunication is defined in the Telecommunications Act 2001 as
“the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign, signal, impulse, writing, image, sound, instruction, information, or intelligence of any nature, whether for the information of any person using the device or not”
So telecommunication means the method (electromagnetic means) by which material may be communicated from one device to another.
A telecommunications service is defined as
“any goods, services, equipment, and facilities that enable or facilitate telecommunication”
Just in the interests of completeness a fibre fixed line service is defined in the same Act as
“a telecommunications service that enables access to, and interconnection with, a regulated fibre service provider’s fibre network”
And fibre network means
“a network structure used to deliver telecommunications services over fibre media that connects the user-network interface (or equivalent facility) of an end-user’s premises, building, or other access point to a regulated fibre service provider’s fibre handover point”
The issue now is from a technological point of view whether internet radio platforms use telecommunications.
The BSA paper and its decision are silent in considering this point and assume that telecommunications provide the means of transport for internet based content.
The fact of the matter is that internet-based radio platforms generally do not use traditional telecommunications services to distribute content. Instead, they rely on internet infrastructure and protocols.
Internet radio platforms use internet protocol (IP) networks and stream over the public internet using standard web protocols such as http/https, Rtmp etc). The content delivery networks (CDNs) distribute content efficiently across multiple servers globally.
Internet radio platforms also use streaming protocols like HLS (HTTP Live Streaming), RTSP, or WebRTC and they piggyback on existing broadband infrastructure (fiber, cable, DSL, mobile data)
Internet Radio Platforms do not typically use traditional telecommunications circuits or channels, dedicated broadcast frequencies (like AM/FM radio) or telephone networks in the traditional sense.
Internet radio platforms are considered “over-the-top” (OTT) services - they operate on top of the internet infrastructure without needing to own or directly contract with telecommunications carriers for special broadcast services. They simply need internet connectivity, which their listeners obtain separately.
From a regulatory standpoint in most jurisdictions, internet radio is classified as an information service or internet service rather than a telecommunications service, which has different regulatory implications regarding licensing, content regulation, and obligations.
The platform itself provides the streaming service; the “telecommunications” part (internet connectivity) is provided separately by ISPs to both the platform and its listeners.
For those reasons internet radio platforms do not use telecommunications.
The BSA has overlooked the fundamental technological realities of how the Internet works. It is not – as imagined – a solid-state system but a communications network that uses a number of different protocols to operate. Some of these protocols – such as TCP/IP - are fundamental to internet operation. Others – such as email protocols - are limited in scope.
The internet, as I have discussed in detail elsewhere, has a number of distinct properties that distinguish it from other communications technologies. One of these is that it enables continuous disruptive change – this is not just to the internet itself but the way that we treat information and our expectations of it. Because digital systems essentially operate in a paradigmatically different way from those that went before often the “tried and true” methods of regulation and control can no longer apply.
Another aspect of this digital paradigm which is enabled by the internet is that of permissionless innovation. All one needs to do is develop some software, ensure that it is compatible with existing internet protocols and plug it in. That is how social media started.
Understanding these elements is essential to understanding whether an existing set of rules apply.
In the course of writing this piece I have had a number of calls about the BSA approach. I have received these calls on my iPhone. At first glance this is a telecommunications device. It enables me to receive telephone calls over the mobile network operate by my provider.
But it is much, much more than a mere telephone. And to describe it as a telecommunications device in that context is to ignore the enormous power of the “iPhone” as a device for transmitting and receiving information.
This is because the device has the ability to communicate via a number of protocols. I can receive telephone calls via the SIM card but I can also access emails using email protocols, seek out information using a wireless connection together with a myriad other uses enabled by applications that employ any one of the many protocols across the Internet.
The fact of the matter is that as I have been writing this article I have received more voice calls in one day than I receive in a month. Rather than use my iPhone primarily for voice communication it is employed for email, internet searches, Substack management, online news locally and from overseas, Wordle and Tightrope. Its primary function is not as a telecommunications device although its nomenclature might suggest otherwise.
And it is the use of protocols that differentiates the internet radio platform from one that uses telecommunication to receive or distribute content.
But as I have said, the BSA seems to have blissfully skated over this aspect of the matter. Or perhaps they still inhabit the world of dialup screeching modems using a home copper landline.
In my previous piece on this subject – Assuming Jurisdiction – I made a couple of points about procedure and process that have been adopted by the BSA.
As this article demonstrates, the “provisional mandatory decision” is informed by the November 2019 paper developed by the BSA in an effort to obtain consensus about its jurisdiction over internet platforms.
Furthermore, the BSA issued the “decision” without hearing argument – indeed without giving interested parties an opportunity to be heard. I say “parties” because the Platform is not the only internet radio platform available online. Many others have an interest in the outcome of this matter and should have been – and should be – given an opportunity to be heard.
As I suggested in Assuming Jurisdiction
“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 Fanselow’s complaint, which raised a jurisdictional issue. It should then have called for submissions from The Platform as well as from 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.”
The protestations of the BSA in the 2019 paper that
“Our key objective is to work with broadcasters to put in place the necessary frameworks and a code of broadcasting practice which is suitable for internet broadcasters that fall within the scope of the Act, and which is suitable for technologies that exist now and that may develop in the near future.
Working together, we hope to reach an agreed approach to achieving this objective (even if we disagree on aspects of the Act’s interpretation). While we prefer to avoid litigation, if legislative interpretation issues prove too much of a barrier, we will consider seeking a declaratory judgment on notice to those who wish to participate in the process to clarify any issues we cannot agree upon. “
Certainly what the BSA has done has been to impose a unilateral process upon one player that is going to impact on everyone. So much for the consensus based approach.
The optics, as I said in Assuming Jurisdiction, are terrible. It seems unlikely that the BSA will back down and hold that it does not have jurisdiction. From a public perception that the conclusion was pre-determined and pre-ordained is inevitable. Prejudgement before argument or feedback may be a valid means of “consultation” by Government departments but it is wrong in this circumstance and could well provide a basis for intervention by a higher Court.
There is also a suggestion that, in light of the 2019 paper, the BSA is being a Judge in its own cause. It would have been better to approach this problem by way of an amendment to the Broadcasting Act. If that was not forthcoming then the matter would be clear. The BSA would not have jurisdiction over online radio platforms.
But for the reasons that I have given and the technical analysis that I have embarked upon, the statute does not allow that jurisdiction. It would be better for the BSA to recognise that reality and decline jurisdiction. To do otherwise flies in the face of reason and technological facts. We are in the Digital Paradigm. The BSA needs to get used to that.
Originally published at A Halfling's View