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John McLean
Citizen typist. Enthusiastic amateur.
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:
POOR GOLDSMUCKJohn McLean 17 October 2025
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 and 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 breaking 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:
PARLIAMENT’S WORDS STILL DON’T MATTERJohn McLean 2 October 2025
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, online) 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”. 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 talkback 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, sweethearts.
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/Māori 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.
This article was originally published on the author’s Substack.
