A Regulator Overreaching on Its Way Out

Preface

This article is my “first impression” reading of the BSA decision in the case under the heading WK and The Platform Media New Zealand Ltd.

There have been two major stages in this case. The first was that of jurisdiction. Did the BSA have jurisdiction to adjudicate complaints about online content distributors. When the BSA decided that it did (wrongly in my view) I was of the view that the trivial nature of the complaint would mean that the BSA would dismiss it.

It did not. Rather it gave a lengthy decision which has a number of issues involved in it which I shall discuss further and in detail. Some of them I summarise as follows.

The first is that there are no standards for online “broadcasters” so the BSA has applied a generic standard.

The second is that there is no proper analysis of the Bill of Rights issue of freedom of expression. The BSA dances lightly over this aspect of the case.

The third issue is that the Platform piece complained of was critical of the use of aspects of Maori culture and its relevance to the business of fighting fires. It appears to this commentator that the question was a fair one and although the commentary of Mr Plunket may be seen to be very robust it was in the context of talk-back, was clearly opinion and although it may be offensive to some it was a reasonable commentary albeit expressed pungently.

The final issue involves “WK” who is in fact Mr Richard Fanselow. For some reason the BSA granted anonymity (suppression of name) to Fanselow and Mr Plunket revealed that identity and took Mr Fanselow to task. In a demonstration of his sensitivity and thin skin, Fanselow lodged another complaint about this aspect of the matter.

Both complaints were upheld although in the past the BSA has dismissed other complaints that have involved stronger commentary. It seems to me that the BSA has takenan unduly sensitive approach to critique which was of Maori and applied what appears to be different standards based on the subject matter of the complaint.

In this article I shall analyse the BSA approach, go into further detail and critique the decision.

Introduction

The Broadcasting Standards Authority opens its decision in WK and The Platform Media NZ Ltd (2025-063A-B, 11 August 2026) with an unusual admission. This, it says, is the first complaint it has ever determined against an online broadcaster, and “in light of the Government’s announced intention to abolish the Authority, it may be the last.”

What follows is presented as a demonstration of “the public protection objectives of the broadcasting standards system.” It is better read as a cautionary example of a regulator straining its jurisdiction, shortcutting the rights analysis it is bound to perform, and applying one standard to criticism of Māori custom and a plainly more permissive one to criticism of everyone else — all in a matter where the Authority was, to a meaningful degree, judging a complaint about criticism of itself.

None of this requires any sympathy for Sean Plunket’s on-air manner, which was crude and, in places, nasty. It requires only that the same free-expression principles the Authority recites in paragraph [48] actually be applied — and applied without a special carve-out for one favoured subject.

The decision fails that test on several fronts. It is worth being clear at the outset that the strongest part of the decision is the weakest part of this critique: naming a private complainant at least ten times, reading out his complaint, and publishing his name and email address to a hostile audience that then threatened him is a serious matter, and the privacy finding under s 4(1)(c) rests on reasonably orthodox ground.

But even that finding is compromised by the Authority’s own conflicts and its cavalier treatment of open justice. The rest of the decision is worse.

The Bill of Rights analysis is asserted, not performed

New Zealand law does not permit a public body to limit freedom of expression by incantation. Section 14 of the New Zealand Bill of Rights Act 1990 protects the right to impart and receive information and opinions “of any kind and in any form.”

Under s 5, that right may be limited only where the limit is prescribed by law and “demonstrably justified in a free and democratic society” — which, since Hansen v R, means running the proportionality sequence: an objective of sufficient importance, a rational connection between limit and objective, minimal impairment of the right, and overall proportionality between the limit and the end it serves.

The Authority knows the words. It says at [74], [80] and [103] that each upholding represents a “lawful, reasonable and justified” limit on expression. What it does not do — for the good taste finding in particular — is the work.

There is no identification of the sufficiently important objective being served by suppressing scornful commentary about a government agency’s cultural policy; no analysis of rational connection; and, most glaringly, no minimal-impairment inquiry asking whether upholding a taste and decency breach against political speech is the least restrictive means available.

The Authority simply weighs “value and public interest” against “harm,” finds the harm greater, and declares the balance struck. That is not the s 5 test; it is a paraphrase of the outcome the Authority preferred.

This matters most because the speech in question sits at the centre of what s 14 exists to protect. The 22 July broadcast was commentary on the internal restructuring of a public emergency service and on the government’s stated policy of curbing “Māorification” in the public sector. Criticism of how the state spends levy-payers’ money and organises frontline services is core political expression, attracting the strongest protection the Bill of Rights affords and the widest latitude for offence.

A regulator restricting that category of speech owes the public a rigorous, transparent justification. The Authority owed one here and did not deliver it.

One rule for tikanga, another for the rosary

The most revealing feature of the decision is what happens when its reasoning is laid alongside the Authority’s own precedents. The Authority concedes — twice, at [53] and [63] — that describing tikanga as “mumbo jumbo” would not, by itself, breach any standard.

The breach is said to arise only from the “sustained,” “scornful” and “one-sided” character of the wider discussion. Hold that concession in mind, because the precedents concern precisely the same words.

In Petros, the Authority declined to uphold a complaint about a talkback session that, on the complainant’s own account, “turned into a session bashing the Catholic Church” — a session in which a caller declared the resurrection “one hundred percent mumbo jumbo” and others called Catholic positions “absolutely stupid,” “abhorrent” and “indefensible.”

In Te Whata, it declined to uphold a complaint about Plunket himself making highly critical, sceptical comments about religion. In a further decision it declined to uphold a complaint about a host branding the use of te reo names for government departments the “Māorification of this country.” The identical epithet, the identical register of contempt for a belief system — permitted.

How does the Authority distinguish them? Balance. In Petros, it says, a defender of the Church was given airtime; in Te Whata, a range of callers put competing views; in the “Māorification” case, the phrase was used “once, in passing.” The tikanga discussion, by contrast, was “one-sided,” with “no countering viewpoint” offered in support of FENZ.

That distinction does not survive scrutiny, for three reasons.

First, balance is simply not a criterion of the good taste and decency standard. Whether opposing views were aired goes to a balance standard — a separate ground the Authority did not and, in this online context, could not apply. Importing it into “taste and decency” is doctrinal sleight of hand: it lets the Authority uphold a complaint on a basis the applicable standard does not contain.

Second, the practical effect is a subject-matter hierarchy that the Bill of Rights does not tolerate. On this reasoning, deriding the central mystery of Christianity as mumbo jumbo across an entire session is lawful, but deriding tikanga in similar terms is a breach.

That is protection for one set of beliefs that comparable beliefs do not receive — the very “different standard” a viewpoint-neutral regulator is supposed to avoid. Third, the “one-sided” complaint is factually strained. This was a three-hour programme that, per the Authority’s own summary, also covered pay transparency, a long interview with David Seymour, and a media-ownership story; the tikanga segment ran around twenty minutes plus intermittent callers. If that is “sustained” enough to convert protected opinion into a decency breach, almost any pointed talkback segment qualifies, and the threshold becomes whatever the Authority later decides it dislikes.

There is a deeper tell at [69], where the Authority faults the broadcast for airing “no countering viewpoint” and then supplies that viewpoint itself — several paragraphs of FENZ’s own justifications drawn from the agency’s website.

The Authority thereby proves two things it does not intend to. It proves the countervailing information was freely and publicly available, so the audience could inform itself — which cuts against a finding of harm.

And it shows the Authority substituting its own editorial judgment for the broadcaster’s, deciding what a talkback host ought to have read out. That is not standards enforcement. It is a state regulator editing an opinion programme it found insufficiently sympathetic to government policy.

“Harm” built on other people’s texts

The good taste finding leans heavily on material the host did not himself author: the tally of “at least 17 references to Māorification,” ten of them from listeners; the “elite Māori grifters” texts; the Once Were Warriors siren joke.

Holding a broadcaster to account for the aggregate sentiment of its call-and-text audience, and treating the host’s failure to rebut each caller as aggravating, is an expansive theory of responsibility that would chill every interactive format in the country.

Talkback exists to surface unfiltered public opinion, including ugly opinion. A standard that penalises a host for the volume and tenor of what the public chooses to send in — absent any incitement by the host — punishes the medium for doing the one thing it is for.

Anonymity for the complainant, exposure for everyone else — and open justice ignored

The Authority anonymised the complainant throughout as “WK,” and grants him name suppression on the footing that publication of his identity risked “adverse consequences.”

Set aside for a moment whether that is compassionate; ask whether it is consistent with open justice, the principle that justice is administered in public and that the parties to a public quasi-judicial decision are ordinarily named so the decision can be scrutinised and the tribunal held to account.

Suppression is the exception, and it has to be justified against that baseline. The decision does not seriously attempt the exercise. It asserts a reasonable expectation of confidentiality and moves on.

Three features make the suppression harder, not easier, to justify.

The complainant had already identified himself publicly in the relevant sense — he complained to The Platform under his own full name before ever approaching the Authority.

His identity is not incidental to the decision; it is the subject of the privacy and law-and-order findings, which are entirely about the consequences of his being named. And the stated basis for suppression is the risk of adverse consequences — consequences that flow from the broadcaster’s own conduct, which the Authority is simultaneously condemning.

There is a circularity here that the decision never acknowledges: the wrong is used to justify shielding the very fact whose disclosure constituted the wrong, in a public document, from the public.

The asymmetry compounds it. The person complained about is named in full and subjected to pages of adverse findings. The person who invoked the Authority’s process is shielded.

A tribunal that cloaks the party who came to it while exposing the party summoned before it has inverted the ordinary logic of open justice, under which it is the exercise of public power that must be visible. That inversion deserved reasoned defence. It received an assertion.

A judge in its own cause

Now the issue the decision most conspicuously avoids. The 15 October broadcast — the source of the second, upheld complaint — was not principally an attack on the complainant.

It was an attack on the Broadcasting Standards Authority.

Plunket opened by describing the Authority’s provisional assertion of jurisdiction as “the greatest existential threat to this organisation... we have ever experienced” and canvassed how The Platform should resist it.

The complaint the Authority proceeds to uphold arises directly out of a broadcast contesting the Authority’s own power over The Platform.

A body asked to adjudicate a complaint bound up with vociferous criticism of that body is in an obvious position of institutional interest. The maxim nemo iudex in causa sua — no one a judge in their own cause — is not a technicality; it protects the appearance, and therefore the legitimacy, of the outcome.

The decision does not so much as raise the question of apparent bias, let alone address how the Authority satisfied itself it could sit. The tone of paragraph [1], which reads as a defence of the broadcasting standards system against its abolition, does not dispel the concern. It sharpens it.

A reader is entitled to ask whether the vigour of these findings owes something to the fact that the broadcaster had publicly challenged the Authority’s existence.

Restraint was the obvious course — and the Authority chose the opposite

The context here is not ordinary. By the Authority’s own account it may be issuing its final decision. The government has confirmed it will legislate to disestablish the BSA and transfer regulation to a self-regulatory model — and, as the public record makes plain, it was this very assertion of jurisdiction over The Platform that crystallised the government’s decision to abolish the Authority.

So the BSA finds itself with its jurisdiction over online broadcasters legally contested, its statutory mandate politically withdrawn, and the specific jurisdictional claim on which this decision rests identified as the trigger for its own abolition.

A body in that position has every reason to tread carefully: to resolve genuine doubt about the reach of a 1989 statute against expanding its own power, and to avoid using what may be its last decision to press novel, contested jurisdiction to restrict political speech.

The Authority did the reverse. It resolved the jurisdictional novelty in favour of its own reach, upheld three separate breaches, placed them “at the higher end of the spectrum” for seriousness, and framed the whole as a vindication of the system slated for repeal. Whatever else that is, it is not restraint.

The remedy incoherence

The decision then declines to make any order at all. The stated reasons — the novelty of the case, delay, and the “evolving and uncertain regulatory landscape” — are institutional and prudential.

But they sit awkwardly against the Authority’s own gravity rhetoric. You cannot describe breaches as sitting “at the higher end of the spectrum,” with harm that is “ongoing,” and then decline every available remedy on the basis that the landscape is uncertain.

Either the harm justifies consequences or the uncertainty justifies caution; the Authority wants both at once. The natural inference is that the exercise was expressive rather than remedial — a set of findings for the record and for the political fight over the Authority’s survival, unaccompanied by anything that would actually bind or cost the broadcaster. That is an odd use of a statutory adjudicative power.

An uncodified standard, applied after the fact

Finally, the “prescribed by law” limb of s 5 deserved attention it did not get. A limit on expression must be not only grounded in law but accessible and sufficiently precise that those affected can regulate their conduct in advance.

Yet the Authority acknowledges at [33] there is no code of broadcasting standards addressing the online context. It therefore reaches directly for ss 4(1)(a)–(c) and imports, by analogy, standards written for licensed broadcasters.

The operative test it ends up applying to the good taste finding — not the words used, which it concedes are fine, but the “tone,” “scorn” and “sustained” quality of the discussion — is about as imprecise a basis for restricting speech as could be devised, and it was articulated only after the broadcast, in the act of condemning it. Speech was penalised by reference to a standard that did not clearly exist for the medium and could not have been known in advance. That is a rule-of-law problem the decision does not confront.

Conclusion

The privacy of a named private individual, hounded after a broadcaster read his complaint to a hostile audience, is a real interest, and had the Authority confined itself to that ground — squarely, with proper attention to open justice and to its own conflict — it would stand on firmer footing.

Even the law-and-order limb is a stretch: s 4(1)(b) has historically concerned broadcasts that promote disobedience of the law, not a host’s foreseeable provocation of third-party unpleasantness, and the privacy standard already did that work.

But the decision does not confine itself. It reaches past its stronger ground to uphold a taste-and-decency complaint against core political speech, on a balance rationale the standard does not contain, in a way that grants Māori custom a protection from ridicule that Christianity and every other belief system is denied on the Authority’s own precedents.

It shortcuts the Bill of Rights analysis it was bound to perform. It suppresses the party who came to it while exposing the party summoned before it, without engaging open justice at all. It adjudicates a complaint entangled with criticism of itself without a word about apparent bias. And it does all this as a body under notice of abolition, in a decision that reads in places like a brief for its own survival.

The lesson is not that offensive talkback is admirable. It is that a regulator does not answer crude speech with expansive, uneven and under-reasoned power — least of all on its way out the door, and least of all when the speaker’s target was the regulator itself.

On the issues that matter most, WK v The Platform is wrong, and it is wrong in a direction that should worry anyone who takes freedom of expression seriously, regardless of what they think of Sean Plunket.