BULLSH*T STATE-SPONSORED ARROGANCE
Latest developments in a Storm that’s not in a Teacup
The Broadcasting Standards Authority’s war on media channel The Platform is heating up and could well explode in 2026. I’ve covered the BSA’s ideologically driven attempt to assert jurisdiction over The Platform in a previous Substack:
In an attempt to shore up its campaign for dominion over The Platform, in early December 2025 the BSA obtained an opinion from law firm Lowndes Jordan. Entirely predictably, LoJo’s opinion, signed by partners Rick Shera and Alicia Murray, is that the BSA has jurisdiction to consider a complaint from some Fanselow fellow that Sean Plunket, The Platform’s founder and CEO, said racist things. You can read the LoJo opinion here:
https://www.bsa.govt.nz/assets/Dec-2025-Lowndes-Jordan-opinion-on-BSA-jurisdiction-v2.pdf
Rick & Alicia’s opinion dated 8 December 2025 is not their finest work.
In concluding that “the BSA has no choice but to decide on the [Fanselow’s] complaint”, LoJo conveniently ignores many legal realities and principles, including the stark fact that, according to the BSA’s own rules, the BSA cannot consider Fanselow’s complaint - because Fanselow did not specify what broadcasting standards he thinks The Platform has breached.
Naturally, LoJo also strains the wording of legislation beyond breaching point in the firm’s attempt to help force The Platform into the BSA’s clutches. It’s of course a common tactic of ideologically driven legal “analysis”, including in Court decisions, to mangle the ordinary meanings of words. More on this aspect below.
On 10 December 2025, the BSA allowed the company behind Reality Check Radio (RCR) to make submissions to the BSA on the BSA’s loopy “proceedings” to determine whether the BSA can stick its nose into The Platform’s content. Although I haven’t seen RCR’s submissions, I can safely say they’ll be an authoritative debunking of the bogus basis for the BSA’s brazen grab for more territory – because I know who prepared those submissions.
As indicated in LoJo’s opinion, law firm Franks Ogilvie on behalf of The Platform itself has also made submissions to the BSA. I haven’t seen those submissions either.
But this Substack is not, and does not purport to be, a comprehensive exposition of the flaws in LoJo’s opinion and of why its conclusion is legally unsound. I focus instead on what I see is the central fault in LoJo’s analysis. It’s a fault which demonstrates that LoJo’s opinion is not in good faith and does not even try to objectively address, on the merits, whether the BSA has legitimate jurisdiction over The Platform. LoJo is simply advocating.
LoJo’s fault is one that characterizes much of the censorious Left’s activist activities. It’s willful blindness to the ordinary meanings of words, the same blindness that now blights New Zealand’s Court system:
Whether The Platform is legitimately subject to the BCA’s prying eyes depends essentially on whether The Platform is a “broadcaster” for the purposes of the Broadcasting Act (being “a person who broadcasts programmes”), with “broadcasting” defined in the Act as follows:
broadcasting means 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…
Parliament, through legislation, can give different meanings to words than their ordinary meanings and, in this case, the Broadcasting Act has specifically defined “broadcasting”. However, for the following reasons, the ordinary meaning of “broadcasting” remains decisively relevant to whether the BSA can legitimately get its claws into The Platform.
Back round 1989 when the Broadcasting Act was passed, there was no better source of the ordinary meanings of words than the Oxford Dictionary. And, serendipitously, the eighth edition of the Concise Oxford Dictionary arrived in 1990. So, how does that dictionary define the meanings of the words used in the Broadcasting Act’s definition of “broadcasting”?
The Broadcasting Act does not define “transmission” (as used in its definition of “broadcasting”). The relevant definition of “transmission” in the 1990 Concise Oxford is “a broadcast radio or television programme”. Clearly, by that definition of “transmission”, The (digital, on-line) Platform is not “broadcasting” for the purposes of the Broadcasting Act.
What about the meaning of “telecommunication” in the Broadcasting Act’s definition of “broadcasting”. The relevant Concise Oxford definition of “telecommunication” is “communication over a distance by cable, telegraph, telephone, or broadcasting [emphasis added]”. The clear flavor of that definition of telecommunication is also that The Platform is not a broadcaster.
In addition, the statutory definition of “broadcasting” requires the relevant telecommunication to be received by a “broadcasting receiving apparatus”. As a result, even though the Broadcasting Act has its own definition of “broadcasting”, the ordinary meaning of broadcasting remains distinctly relevant to the BSA’s attempt to capture and kill The Platform. And that definition, from the Dictionary itself, provides as follows:
broadcast 1 v tr. transmit (programmes or information) by radio or television 2 v intr. undertake or take part in a radio or television 3 n. a radio or television programme or transmission
Therefore, “broadcasting” under the Broadcasting Act was, and still is, confined to radio and television. But you won’t find any of this first principles statutory interpretation in LoJo’s opinion. LoJo instead embarks on a wild goose chase though other legislation to try and avoid the clear, literal interpretation of the Broadcasting Act that takes The Platform outside the BSA’s ambit.
Not done, LoJo’s opinion then stretches section 11 of New Zealand’s Legislation Act 2019 well beyond breaking point in an attempt to ensnare The Platform. By providing simply that “Legislation applies to circumstances as they arise”, section 11 emphasizes that legislation applies to real world circumstances and situations as they develop over time, so that legislation does not become obsolete simply because times have changed. What section 11 does not do is override section 10(1) of the Legislation Act which provides, “The meaning of legislation must be ascertained from its text and in the light of its purpose and its context”.
LoJo argues “functional equivalence” under section 11 of the Legislation Act i.e., that, because The Platform’s live commentary and talk back is arguably functionally equivalent to old fashioned radio, it’s broadcasting. But this is inconsistent – for the purposes of section 10(1), with the ordinary meaning of the applicable text of the Broadcasting Act, Parliament’s purpose (to apply broadcasting standards to radio and television) and the context of the Broadcasting Act when it was enacted. Digital platforms - science fiction when the Broadcast Act was passed almost 40 years ago - are qualitatively a world away from analogue radio and television. LoJo would argue - based on “functional equivalence” - that the Tasmanian Tiger, an extinct carnivorous marsupial, was in fact a wolf - or even a Tiger!
So there we have it. The BSA has paid dollops of our taxpayer money for LoJo to pimp its letterhead with a contrived “opinion” in support of the BSA’s ideologically-driven assassination attempt on The Platform. The implications of the BSA’s assertion of jurisdiction and Rick and Alicia’s “opinion” are of course absurd; the BSA must apply its standards to all providers of digitized communications available to New Zealanders, from around the globe. Pull the other one, sweet hearts.
The BSA’s “proceedings” are not Court proceedings. But if this joust over the BSA’s jurisdiction were to end up in Court, the BSA could well win. Because New Zealand’s Courts are just as bent as the BSA.
And we’re not playing tiddlywinks, kiddiewinks. The BSA’s intention is of course not to regulate The Platform. It’s to burn The Platform down, by exposing The Platform to a firestorm of complaints.
And all this in an election year. Because make no bones about it, if the BSA succeeds in silencing The centrist Platform and its listeners and contributors, the likelihood of a Labour/Maori Party/Greens coalition Government after the next election is significantly increased. That’s what’s at stake, in the BSA’s brazen attempt to burn Sean Plunket on his Platform.
An excellent article. It concerns me enormously that Goldsmith appears pathetically weak in his role as Broadcasting Minister. I suspect he has no time for the type of organisation that is the Platform. The much maligned Melissa Lee who seemed prepared to let the MSM die a natural death appears to have been a much better minister in this portfolio IMHO and presumably would have given more support to independent media.
John
Interesting piece.
I am afraid I must disagree with the suggestion that this is a cunning plan to silence the Platform by drowning it with BSA complaints.
My view is that this is part of a BSA power grab that has been going on since 2019 when the BSA asserted jurisdiction and sought input from interested parties. In 2020 it followed up with an interim piece but then Covid and the Safe Online Services and Web Platforms programme seemed to herald a wider form of content regulation with the BSA proposed as the regulator.
When the current Govt sidelined the Safer Online Services proposal clearly the BSA decided to breathe life back into the the 2019 proposal. The simple issue is that they want to expand the scope of their jurisdiction - partly because the broadcasting business is shifting from the spectrum based model to the Internet. Trouble is that the law doesn't allow that - despite the LOJO opinion imaginings.
Some thoughts on functional equivalence
To simply assert as the LJ opinion does at para 26 that live streaming radio is functionally equivalent whether it occurs over radio waves or the internet lacks a thorough and rigorous analysis.
The conclusion stated by LJ opinion is directed towards outcome – the end product – rather than the overall method of delivery. Radio waves are technologically different from internet content delivery. Radio waves and spectrum allocation recognize the scarcity of the medium as recognized and regulated by the Radiocommunications Act.
The LJ opinion also advances the example of iHeart radio which delivers content over the internet as well as by spectrum, suggesting that internet transmission is functionally analogous to spectrum transmission.
This approach is flawed for a number of reasons.
First it ignores a nuanced approach to the decisions of the BSA in the cases of Phillips v RITA (2019-044) and McKenzie v 95bFM (2005-90) where jurisdiction over content delivered online depended upon the fact that the content had also been distributed (broadcast) by traditional means. Phillips misunderstands the decision in McKenzie and conflates “broadcaster” with the Internet content provider. In Phillips the broadcaster was Sky TV and not RITA.
Thus the functional equivaklence argument fails on this analysis.
Secondly the concept of functional equivalence must be approached with some care. The concept of “functional equivalence” in law arose primarily as a result of the development of electronic commerce (e-commerce) and the need to ensure that legal requirements prescribing the use of paper-based documentation for the purposes of recording transactions did not constitute a major or continuing obstacle to the development of e-commerce and the use of digital systems. It was also recognised that there should not be a wholesale removal of the rules and requirements surrounding paper based transaction which would disturb the legal concepts and principles that underpinned those requirements.
Functional equivalence as a comparator must be treated with considerable care. To utilise functional equivalence goes further than a mere comparison or a wholesale transfer of conceptual thinking from one paradigm to another based on superficial similarities. To do that can result in either the perpetuation of a false comparison or a potential inhibition of the legal effects of the new paradigm by anchoring them in the outdated characteristics and properties of the old. It is submitted that what must be undertaken is a careful examination of the function of the earlier rule or concept.
Similar care must be used in using analogies. Analogy is a cognitive process of transferring information or meaning from a particular subject (the analogue or source) to another (the target), or a linguistic expression corresponding to such a process. In a narrower sense, analogy is an inference or an argument from one particular to another particular, as opposed to deduction, induction, and abduction, where at least one of the premises or the conclusion is general.
One has to be careful with analogies that the comparators – the source and the target - are alike. It is no good using apples as an analogy for oranges. In the context of the digital paradigm there is a problem in that the set of circumstances which provides the basis for comparison has arisen in an environment that is often quite different from the new one.
It is convenient, but not analytically rigorous, to suggest that because an online content delivery methodology resembles a traditional spectrum based radio or delivery system there it automatically follows that the same principles are applicable from the spectrum radio to the “internet” radio.
Although they look the same to the unpracticed eye they are quite different in terms of technology and operation.
In addition there are existing licensing and spectrum allocation requirements that apply to traditional radio that simply are not present for an internet based delivery system.
For those reasons the functional equivalence argument fails.