CLAIRE DEEKS: The BSA Didn't Go Rogue - It Went First

The backlash against the Broadcasting Standards Authority (BSA) has been fierce and deserved. Its attempt to claim jurisdiction over The Platform has triggered outrage with ACT Leader David Seymour saying Parliament “never asked” the BSA to police the internet, while NZ First Leader Winston Peters accused the Authority of “acting like some Soviet-era Stasi.”

Most of the criticism from legal experts, journalists and politicians has focused on how the BSA overstepped: the botched process, the legal overreach, the arrogance of claiming powers it doesn’t have. And that’s fair criticism. But it misses the elephant in the room: the Government itself is preparing to do the same thing that the BSA proposed.

That’s why this matters. The BSA episode feels like a dress rehearsal for something bigger.

The Dress Rehearsal

When the BSA declared that The Platform is a “broadcaster,” it wasn’t just misinterpreting the law; it was a sonar ping to test how far public tolerance will stretch for Government control of online speech.

Commentators interviewed by RCR didn’t mince words:

Former Judge David Harvey described it bluntly as a “power grab by the BSA to get jurisdiction over pretty much any [online] platform that is putting out any content whatsoever… they’re trying to set themselves up as the internet police.” Harvey even wondered if the entire complaint had “all the hallmarks of a set-up.”

Political commentator David Farrar warned: “Once you go past the normal definition of broadcaster, it’s very hard to say where the slippery slope stops.”

And Free Speech Union CEO Jillaine Heather said the BSA attempt showed “a deep misunderstanding of the digital world and a worrying appetite for control.”

They’re all correct. The BSA deserves criticism for how it acted. But we should be more concerned about who is setting the stage and who is funding the theatre. The BSA isn’t a rogue body acting on impulse; it’s a publicly funded Crown entity accountable to the Minister for Media and Communications (currently Paul Goldsmith), and its board is appointed by the Governor-General on the Minister’s advice.

Which is why this overreach feels less like rebellion and more like rehearsal. Because while the BSA’s grab was clumsy and overt, the Government’s own plans (as laid out in the Media Reform: Modernising Regulation consultation document) quietly proposed the same powers, only broader and more permanent.

And let’s not forget, before The Platform received its ruling, the BSA quietly gave Minister Goldsmith’s office a heads-up, under the Government’s “no surprises” policy. Is that really evidence of it “going rogue”? Seems more like being obedient.

Minister Goldsmith effectively confirmed as much when asked about the controversy on RNZ’s Mediawatch. He noted that the BSA’s action sat “within the media reform package that went out for consultation,” adding that the Government was “yet to make final decisions.” The affair, he said, was simply an “interesting little exercise,” with the BSA performing “what it considers is within its current ability to do.”

Public concern, however, was dismissed. “There’s a lot of noise about it at the moment… I don’t think our democracy is under threat,” Goldsmith said. And in a telling final comment, he said the BSA was “within its rights to test that, and it may well go before the courts. I’m happy to let that flow through the system and see how it goes.”

Thus, the BSA’s overreach was a live trial balloon to gauge public tolerance so the Government can keep its hands clean.

An Infrastructure of Control Out Of Hibernation

The real story is why the BSA thought it could overstep.

Looking beyond the obvious – that the Media Reform agenda is already heading in this direction and that the BSA is, in essence, an arm of the state – the push didn’t come from nowhere. It was the latest act in a pattern stretching back years, including the Christchurch Call, the DIA’s takedown powers and the now-abandoned Safer Online Services and Media Platforms review.

The latter was one of the most extreme censorship frameworks ever proposed in New Zealand – a new super-regulator with a mandate to oversee film, broadcasting, advertising, print and online media under one set of “safety” codes. It aimed to capture any platform with either 100,000 annual viewers or 25,000 New Zealand accounts and even gave the regulator the power to declare smaller platforms “high risk” and subject to its rules anyway.

The proposed “Regulator” could impose a code drafted by dominant media players and replace existing self-regulatory bodies such as the Media Council and the BSA itself. It could also fine media outlets hundreds of thousands of dollars for so-called “unsafe” or “harmful” content, defined as anything that might damage “physical, social, emotional, or mental well-being.”

Think about that for a moment. Truth itself could be treated as “harmful” if it upset someone.

As we warned at the time, censorship is not the answer to speech we do not agree with. On the contrary, an open online media enables robust discussion – the hallmark of a free society.

After more than 18,000 public submissions on the proposal, it was abandoned in May 2024 – a significant win for free speech. Voices For Freedom, alongside the Free Speech Union, was highlighted in the DIA’s report as a key driver behind that public backlash.

Then, earlier in 2025, the same philosophy reappeared, rebranded under the Ministry for Culture and Heritage’s “Media Reform: Modernising Regulation” consultation. The core DNA of the earlier Safer Online Services and Media Platforms document remained: a belief that speech, safety and “harm” must be centrally managed by a Government-appointed authority.

As Judge Harvey noted, “policy ideas rarely die; they hibernate.”

From BSA to Bureaucracy-as-Government

In his foreword for the Media Reform proposal, Minister Goldsmith promised to “treat all players equally” and “avoid unnecessary barriers.” But in practice, his proposal to create a platform-neutral regulator with oversight of all audio-visual and online content would do the opposite.

As we pointed out in RCR’s submission on the consultation, this so-called neutrality “fails to account for the disproportionate compliance burden on smaller, independent media.”

Goldsmith’s “platform-neutral” assurance might look fair on paper, but it really means one-size-fits-all red tape. The state-funded media giants have enough funding to hire compliance officers and lawyers to deal with the paperwork. But independent platforms like RCR, The Platform and other grassroots media will be buried in bureaucracy before a complaint even lands.

When regulators can tie small operators up in bureaucratic processes, they don’t need to censor – they just exhaust the media’s resources. As David Farrar put it on RCR, “the process is the punishment.”

What the Media Reform Paper Actually Says

The Government’s Media Reform consultation may sound bland, but buried inside it were proposals with enormous implications for speech and press freedom.

Officially, the document said it wanted to “modernise” the outdated broadcasting standards regime from the 1980s. But what it really proposed was a universal content regulator with jurisdiction over every kind of media.

“The Broadcasting Act established the broadcasting standards regime. This includes programme standards (including classifications) and codes of practice, processes for making and dealing with audience complaints about broadcast content, and the Broadcasting Standards Authority (the BSA) to oversee the regime independently from government. The regime also requires radio and TV broadcasters with more than $500,000 annual revenue to pay a levy to support the BSA’s operations.

“In the late 1980s, the broadcasting standards regime was designed to help ensure media content met accepted industry principles and reflected community values. However, as the regime is framed around broadcasting, it only covers linear TV and radio content – which New Zealanders are engaging with less and less as online and streaming platforms become increasingly the source of choice for media content.”

On its face, this appeared harmless, just another update for the digital age. But the fine print revealed the real agenda:

“The proposal is to modernise the broadcasting standards regime to cover all professional media operating in New Zealand, not just broadcasters. The role of the regulator (currently performed by the BSA) would be revised, with more of a focus on ensuring positive system-level outcomes and less of a role in resolving audience complaints about media content.”

In plain English, this meant moving from a complaint-based referee to a proactive overseer – an unelected “system manager” for all professional media, both online and offline. That aligned exactly with what our RCR submission on the document warned:

“Regulation by a Government-appointed body is inappropriate in the modern media landscape, especially given the risk of ideological bias and our first-hand experience of enforcement disparities.”

The document’s language about “positive system-level outcomes” was bureaucratese for centralised direction and oversight. It shifted the focus from what people said to how the entire information system behaved, a structural form of control that’s harder to detect but easier to justify.

A Global Pattern

New Zealand’s drift toward bureaucratic speech control is part of a broader global trend.

In Australia, the eSafety Commissioner can now order content removed within 24 hours and fine companies for non-compliance, a power used to threaten X (formerly Twitter) over political posts.

Earlier this year, UK police were found to be making more than 30 arrests per day over posts deemed offensive on social media and other platforms, and the UK’s Online Safety Act 2023 now criminalises online speech deemed likely to cause “psychological harm”, a standard so vague that it effectively codifies emotional offence as a crime.

And in Canada, the Online Harms Bill C-63 will empower a Human Rights Commission to investigate citizens for “hateful statements,” with potential prison terms for repeat offenders.

Each law is being sold as protection with the buzzwords “safety,” “respect” and “inclusion.” But the result is the same: Government gatekeepers deciding what citizens can read, hear and say.

New Zealand is just another node in this quickly developing global network.

Where To From Here For The BSA?

New Zealand already has laws covering discrimination, privacy, deception, classification, harassment and crime: the Human Rights Act, Privacy Act, Fair Trading Act, Films and Publications Act and Crimes and Harassment Acts. So, what exactly needs to be regulated on top of these? Hurt feelings? Unpopular opinions? Lawful dissent?

The reality is that the Government’s so-called “modernisation” efforts are about control masquerading as safety. They are about narrowing the boundaries of acceptable speech.

Efforts to impose “codes of practice” for online content don’t reduce harm, they stifle legitimate speech because people end up self-censoring while platforms tend to over-moderate.

Perhaps there once was a legitimate place for the BSA in a media landscape built on licensing rights. This isn’t the case today. We don’t need another layer of bureaucracy to “protect” us from words and ideas. And we certainly don’t need the state deciding what’s “safe” to say.

As David Farrar said, “there can be no confidence in the BSA for its secret power grab. The board should go, or the whole organisation should go.”

Free Speech: The Oxygen of a Free Society

In a genuinely free society, the Government has no moral or constitutional mandate to regulate speech beyond what is already prohibited by law, such as incitement, defamation, or crime. Once the Government defines what is “safe,” then truth, dissent, and even humour, risk becoming a matter of permission.

The crucial point is that the BSA is not “independent.” It is a publicly funded Crown entity accountable to the Minister for Media and Communications, with its board appointed by the Governor-General on ministerial advice. So, when it pushes its mandated limits, the BSA is not defying the Government, it is testing public sentiment for the Government.

As Judge David Harvey has observed: “The same agencies recur; the same language recycles: safety, harm, trust, resilience. The metaphors change, but the objective remains.”

The BSA knew what it was doing. It didn’t go rogue; it went first. It was testing public tolerance for speech controls ahead of the next Government push.

Claire Deeks is a registered patent attorney in Australia and New Zealand with over a decade practising as a commercial litigation lawyer. She is also a co-founder of RCR and Voices for Freedom. This article represents the author’s personal opinion and is not a formal legal opinion.