Former BSA Board Member on Why Abolishing It Was the Wrong Call - Pulotu Tupe Solomon-Tanoa'I

Pulotu Tupe Solomon-Tanoa'I served four years on the Broadcasting Standards Authority. With the BSA now set to be abolished by the Coalition Government following the Sean Plunket / The Platform jurisdictional decision, she sits down with FSU Council member Dane Giraud for an open exchange on what the BSA actually does, where free speech and protection from harm collide, and whether scrapping the body off the back of a single controversial ruling was good process.

It's a genuinely civil disagreement — and one of the more substantive conversations on broadcasting regulation you'll find in New Zealand right now.

They cover:
- How BSA complaints actually work — and why only ~8% are upheld
- The elasticity of "harm" and who gets to define it
- The Heather du Plessis-Allan ruling and whether counter-speech would have done more
- The Plunket / Platform jurisdictional decision and the cost-of-appeal problem
- Why years of reform consultation were shelved before the BSA was scrapped
- Online pile-ons, platform accountability, and the Mikey Sherman case
- David Harvey's voluntary-standards model — and its gaps
- Vexatious complaints, and the BSA's 2020 decision not to hear complaints about te reo Māori

Transcript

Welcome And Why The BSA Matters

SPEAKER_01 0:00

Welcome to Free to Speak, the New Zealand Free Speech Union podcast. If you enjoy the show, subscribe for uncensored conversations and free speech news from New Zealand and beyond.

SPEAKER_02 0:11

Kilda, and welcome to Free to Speak, the official podcast of the New Zealand Free Speech Union. My name is Dane Giro. I am a council member of the Free Speech Union and your host. And joining us today, graciously joining us, is a former board member of the BSA to discuss the potential deestablishment of the BSA and what how that could it impact minority and other communities. Polotu tube Solomon Tanaway. Kyota. Kyoto. So uh again, thank you very much for for um coming on Free to Speak. Uh it's a privilege to have someone that's been on the BSA. Often these uh fights, uh I say fights that the Free Speech Union have can get a bit abstract because uh often the people that we are pushing back against or the organizations don't represent. And I think that's um a pr a problem because what it means is that some of our supporters don't get to understand the nuance um of what goes on inside these organizations. So that's why uh again, thank you very much for this. Um it's it's it really is um an honor to have you here. So you've got you've had a very um uh interesting career to date. Uh you you you work in the philothra philoth um now I can't even say that.

SPEAKER_00 1:39

Yeah, it's uh a difficult uh word to pronounce. You work in the philanthropic space? Yeah. Most people like who are in the philanthropic sector say they didn't know how to say the word before they started working there. So yeah, don't worry, you're in really good company. Um but uh yeah, thank you so much for having me uh on the podcast. Um and I think I just want to clarify that I, you know, am not speaking on behalf of the BSA today, uh, but I am speaking from my experience having been on the BSA for four years, having been appointed as uh after public or after community consultation. So um having had that experience, uh I've got um uh you know first hand experience of uh its role and value. And um yeah, I really want to thank you for the opportunity to have an open discussion today and uh you know uh learn a bit more about each other's worldviews.

SPEAKER_02 2:39

Great,

How Complaints Move Through The System

SPEAKER_02 2:40

great. That's awesome. So maybe maybe start by taking us through, because uh we' what what I'm fascinated by is a case comes over the desk. So what is the process? How does it start? Are you able to talk us through woe to go, like how that would work and what your role would be, or what other staff's role would be in that process, just so we know the mechanics and what actually happens within the BSA?

SPEAKER_00 3:07

Yeah, thanks. I think that's a really good place to start because uh most people uh wouldn't know about the BSA until a controversial case hits the headlines. Um, and I think probably a lot more people are aware of it now that it's been announced that it will be abolished. Uh but uh the BSA is more than just a complaints office. Uh so uh it um set standards for broadcasting together with broadcasters and in consultation with the public. And uh it conducted research on how media is experienced by people uh and um it also um received uh or determined uh complaints uh from the public. And so um when someone feels that uh well actually maybe I should start first um two with what standards are. So the standards related to accuracy, fairness, balance, discrimination and denigration, children's interests, and widespread disproportionate offense or harm. So uh if someone uh had a complaint or concern about any of those things, the first thing they would do is complain to the broadcaster. And uh the broadcaster would then look at those complaints. And if they uh if um that member sorry, and there was another one actually that I didn't mention, there's a privacy um standard. So um, and the privacy standard was the only one where people could come directly to the BSA. But for all the other standards, they had to first complain to the broadcaster, and then the BSA was like an appeal body. Um so if people weren't happy with the response that they got from the broadcaster, then it would come to the BSA. And uh if you were happy with what the BSA uh determined, then it would go, it could be appealed to the High Court. So there are quite a few layers of complaints, uh of um quite a few layers um whereby your complaint could be considered. And I think um what's important uh to understand, uh, especially uh for the FSU, and I think um this is uh an area where um you know we agree is that freedom of expression is extremely important in a democratic society. And so the threshold for uh intervening in uh freedom of expression freedom of expression was intentionally set high. So of the you know, hundreds of complaints that uh the BSA received every year, it only upholds a small number of complaints. So um I think last year was eight percent. It usually is around six or seven percent, um, which means that uh, you know, the flip side of that is that in 92% of cases, uh it was found that there um it did not meet the threshold for

Defining Harm Without Stretching It

SPEAKER_00 6:10

um for intervening in freedom of expression. But what the BSA does is that it balances freedom of expression with um the right to well with protection from harm.

SPEAKER_02 6:25

That that word harm again, you know, w is is the problematic one, uh I think. How is it defined within the BSA? I mean, it'd be nice to have a test case or something that we could go over to to um to maybe establish how how it would be interpreted, but how how would you interpret it maybe?

SPEAKER_00 6:45

The harm, well, so the standards themselves provide guidance to the broadcasters um as to you know what would constitute um harm in the broadcasting context. So people are um, you know, the the right to freedom of expression needs to be balanced against the right of people to not be harmed by misleading content, content that's inaccurate, content that denigrates um sections of society. Um and so that those are contained within the standards themselves. Uh and uh yeah, there are a number of different layers, as I mentioned before, um, where the broadcaster themselves can say whether they think, oh yes, actually we got that wrong, we breached the standard. And um then it will, you know, if the complainant is is not happy, um the BSA can have a look and say, actually, you know, we think the broadcaster got that wrong, or the the broadcaster actually got that right, but they did enough to address that. Um and then uh if the complainant was still not happy, they could go to the High Court. So it's um, you know, that the standards are, you know, things that um it's not just you know, four people deciding what constitutes harm. There's like quite a few layers um whereby those discussions can be had.

SPEAKER_02 8:10

Okay. I mean, the reason why I ask is and this this is a question that comes up with all censorship. The definition of harm can be extremely elastic. And like even within my own community, say the Jewish community, we're all individually going to have different thresholds for what is harm. I mean, there are Jews that think that Israel is an apartheid state. I personally think that's one of the most harmful things you can say about Israel. It's even more harmful in the long term to me than um a neo-Nazi just having a blurt on X at me, because it's considered normal political discourse and probably wouldn't get hoovered up by any of these standards. And so it's almost like a slow march of um creating a lot of ill will towards a community, most of us who would support a Jewish homeland um in in the Levant. So harm is quite subjective, don't wouldn't you think?

SPEAKER_00 9:17

Well, that's why I think it's important to have a body like the BSA, like uh there's been um jurisprudence built up over you know a number of years since 1989. Uh and you know, the the standards that are set together with broadcasters and in consultation with the community. Um and uh, you know, we have uh a number of decisions that uh you know we go back to uh when we, you know, um making uh determinations on complaints, or you know, I'm sorry, I'm saying we, I'm slipping back into we. I'm not part of the BSA anymore, but you know, um when the BSA is, you know, looking at um, you know, complaints that come up, they you know are looking back at previous decisions that have been made.

SPEAKER_02 10:03

That have yeah, that have come before. But so that's sort of setting the like any um yeah, judisprudence. It's it's like it's setting the the the standard of what it what is. Um okay, well that's interesting. Well,

Stereotypes And Real World Consequences

SPEAKER_02 10:15

so so you a concern you had and you talked about in the e-tangata piece is stereotypes, right? The propagation of um so uh how how is that is that considered a harm potentially?

SPEAKER_00 10:29

Uh how would you define that? So so the point I was making in the e-tangata article uh was that it was in response to something that I've heard uh politicians saying about what you can do about harm. Uh so something that has been said quite often is that, well, if you don't like it, you can just turn it off. Uh and that doesn't work for uh communities uh who have been subjected to stereotypes because even if they turn it off, then those stereotypes are taking hold and forming other people's opinions about them. So the point I was really making there is that the media uh has a lot of influence and power in society. And uh so you know, I'm really making uh a case for um, you know, why we need uh a body like the BSA so that we can ensure that um uh an entity, which is really important for a democratic society, that they're not misleading the public, um, you know, that they are uh reporting accurately and that they're not uh repeating stereotypes that can uh be harmful over time to certain sections of the community.

SPEAKER_02 11:40

Now, the uh Heather Duplicity Allen case. So what was it that she said in that case? Uh I don't uh it's just occurred to me now. I didn't plan this. But but she was quite um derogatory, wasn't she, against Polynesians? Was it was that what had what had happened? Am I getting that correct?

SPEAKER_00 12:00

That's right. Um yeah, I don't really want to repeat what she said. Uh and this this decision was before my time on the BSA.

SPEAKER_02 12:07

Um it feels like it was like two years ago or something.

SPEAKER_00 12:11

Well, I started in 2021, and I think her case might have been in 2020 or 2019. But it was a remark uh that she made um in relation to the Prime Minister going to the Pacific Islands Forum, which is a major uh meeting of Pacific leaders, uh, and one that's you know really important to the Pacific and to New Zealand, actually, um, in terms of um our relationships with our neighbors. Uh and she uh sort of made a bit you know dismissive and very uh denigrating comment. Uh, so that the BSA found that it was uh um denigrating and harmful to Pacific people. Uh and so yeah, I mean I think it is really important to have uh a body which sort of pulls up broadcasters to say, hey, actually, um that's not right what you did there. Um and that was that can cause harm to the community uh by saying those sorts of things. And uh that's quite different from someone saying that in their living room. Um, you know, this is uh a media broadcaster who has uh influence in society. Um so that's what these protections really are for. Uh it's for um broadcasters and to make sure that um our media that has an important role in shaping views, uh, it's not broadcasting, denigrating, or misleading or inaccurate content.

SPEAKER_02 13:42

Do you think though, and I've thought about this a lot, that a ruling is going to uh I mean I I I guess what you're doing with the ruling is warding them off going there again and they'll be more careful in the future, I guess. That's the point of it. But what would be worth more in terms of community educating people on a community? Would it be a ruling like that, or would it be the counter speech that would come from that? Because that's what I remember. I don't remember the ruling so much as uh a lot of um uh commentators pushing back, uh making a case on the other side, um, and all that kind of counter speech. So I just wonder is censorship really moving the dial as much as counter speech would.

Rulings Versus Counter Speech

SPEAKER_00 14:39

Um so one of the things so I picked this up in our pre-conversation. Um, yeah, so I mean I wouldn't uh see that as censorship. Um what what happened in that instance. So the the BSA, I mean I don't think the um I don't think that uh it's a binary choice between freedom of expression and censorship. Uh it's really about uh balancing between freedom of expression and uh protection from harm. Uh so just to come back to your point about you know what what is useful for communities. Uh I mentioned earlier that the BSA is not just a complaints office. So it sets the standards, it consults with the public, it uh conducts research on what people find harmful, and it also educates broadcasters and the public. So it educates broadcasters on how they can meet the standards, and it educates the public on what they can do if they feel that uh the standards have been breached.

SPEAKER_02 15:49

Okay. Um well when you say not censorship, I mean it is that she's not gonna go there again. Uh uh after having a ruling like that, she's gonna because it's gonna be costly, isn't it? There's a cost attached to it. So that there is like it's a there is a punitive element to this.

SPEAKER_00 16:09

Yeah, I think in that instance, I think she was f fined $3,000. Well, she not here personally, uh the broadcaster was fined $3,000. Uh but yeah, again, it's really about how broadcasters can um, you know, meet the standards and how uh you know they can ensure that har harm isn't done to communities. I mean, I'm um you know, I think that that's um you know a a challenge in democratic societies, how we can balance those tensions fairly. And I I mean I'm interested um sort of in your view, like what um you think you know should be done in in those instances where broadcasters are you know um denigrating communities.

SPEAKER_02 16:59

Yeah, I I I would probably I my my personal view is that the bigger issue that we have as minority communities is that right of reply. And that's something that I I mean in in many ways, the way I would have taken that, I wouldn't have been happy about it. I would have pushed back on it. I mean, people have every right to, I'm not belittling or anything or dismissing what was said. My issue, speaking from you know the perspective of being in the Jewish community, is we don't often get a writer reply. Some people can say some horrendous things and a lot of disinformation and misleading things, which doesn't actually get picked up the way it can do for a lot of other communities as well. People tend to be a bit more careful. I mean, what's interesting about the BSA's research, you say community outreach and everything. There was a survey done relatively recently, I think it was 2020, and they spoke about harm to the Muslim community and and other communities, but they didn't took they didn't mention the Jewish community. And I found that really kind of interesting and possibly a bit talon. Um in terms of racism and stats, w we tend to be very high. But a lot of our government groups don't really take anti-Semitism as seriously for some reason. They don't think it's as big a deal. I mean, I know even in the Human Rights Commission, um uh uh they they just don't tend to view it with the same urgency. And the cynical read on that might be that a lot of people there are quite on the left or far left, who might be a bit more sympathetic to the anti-Israel narratives and therefore a lot more permissible with some of the stuff that get that gets through. So I worry about the balance there. But I would be happy enough with counter-speech. It's not that I'm not against standards, because I I I think it serves a a professional news organization if they have standards that they um would hold to, especially today, where we're gonna have a lot of online commentary. What defines a mainstream serious organization from these independent podcasts and so forth? It probably should be standards. But I would I I have sympathy to the to the voluntary um uh doing it in a voluntary way, people just opting in rather than it being something that they have to do. Like what happened with the platform and and this reach into the internet, I I think was uh was a bridge too far, and that they were never going to be able to sustain. Because I don't even know how they would have really been able to manage all of that. And there was a lot of inconsistency too, like the platform would have qualified, but there was other streamers and so forth that wouldn't have, and it felt very selective. And I think that's where a lot of distrust started here. But the internet is the Wild West. I don't think it'll ever be properly regulated. I don't think it can be. So our best option has always really been counter speech, and that's why minorities in the West tend to have the most rights, because they had free speech and they they found platforms, even if it took decades as well, to get there, you know?

SPEAKER_00 20:39

Yeah, uh well, there's a lot in uh what you just said. Too much. No, no, no, no. Um no, that's great. Um, just to respond quickly on your point about balance, uh, so that is reflected in um one of the standards. Uh and yeah, the the right of reply is re is important. And so uh yeah, balance uh is is one of the standards, and they take into account things like whether um, you know, different perspectives were provided in uh either in the same broadcast or that balance can be provided over time as well. So, you know, you can present a particular view in one interview, uh, but then you know, within the next few days you're presenting the right of the play or the or the um or a different view. So um, so that's one of the standards under which people could uh complain. Um

The Platform Case And Online Jurisdiction

SPEAKER_00 21:35

and then so we've gone now into online uh regulation. And yeah, so let's talk a little bit about the the case that uh has sparked all the controversy. Uh and so the BSA uh will be has been the first to admit over many years that um it's in need of reform because the Broadcasting Standards Act uh was passed. In 1989, and uh it's quite archaic.

SPEAKER_02 22:03

It's got terms like decency and good taste and things.

SPEAKER_00 22:06

It's like it's a bit well, though those terms are still around. But um it's archaic in the sense that technology has completely transformed the way that we consume content now. So uh it's um it was set up for a different age. And the BSA has been calling for reform over a number of years, and those discussions have been going since at least 2010, and successive governments have uh looked at what could be done to modernise the act. Uh, but Parliament hasn't uh updated the act, so the BSA was working with the legislation that it had, and it had been saying since 2019 that uh if it received a complaint about a webcaster, um it would consider it. And so that's uh what happened um with the Sean Clinkett case. So the decision they issued was just on jurisdiction. Uh and uh in my view, I mean I think I think that uh you know I think that's a legitimate point of debate, you know, whether they should be, should have been considering a complaint um about an online platform. But there were ways in place to uh to deal with that debate. So it could have been appealed to the high court.

SPEAKER_02 23:26

Uh or but that's costly. That's costly, you know. I mean, he would if if he's appealing to the high court, how much is that going to cost him?

SPEAKER_00 23:34

Yeah, I mean, I'm not sure, but people do appeal to the high court.

SPEAKER_02 23:38

But but my see, my concern there is that what we're seeing a lot more of now, which I'm really for, because I I've worked actually with a lot of um upcoming Mori and Pacific Island uh comedians, people that are, you know, on YouTube and and and everything and and giving them tips and you know, cre even created shows for a couple of them that I've seen and been tickled by and you know, and got them to Māori TV for a sit-down and got a show up and everything. Um we're seeing more and more people from uh from areas like our hometown of South Auckland, you know, uh creating their own shows. Now, you know what it's like out there. Some of these people are rough and ready, but that's the that's the language you're gonna speak in out there, you know. Like we we I I accept that I know exactly where they're coming from. A lot of people um from the inner city um could be extremely offended by what they hear. Uh but but the but out, you know, the value sets and everything are very different. And these are people from Struggle Street, right? So that that's that's what and and now they're visible. And they're visible in the way they never were before, you know. So they're they're going to take advantage of stuff like this. We could have a popular stream happening uh out of um uh Papatoui, which could be uh quite offensive to a few people. Um now that person's not going to be able to appeal or go through a court system because they wouldn't even have a producer. It's likely to be them just doing their thing, but reaching people, you know. And and as someone who's work in film and TV, uh a gripe I've had for decades is that people often talk a good game, but no one serves that audience. No one's serving the urban Māori, PI, even Pakia from out their audience, you know. So this is where I think this reach into um because when you talk about harms to communities, I think there's a little bit of an irony there because what could happen is if they really had got going and there was lots of um complaints against some of these streamers, then we're shutting down a lot of voices that have never had a platform before because they're gonna be priced out of the game. Then they're never gonna be able to go through a court system.

SPEAKER_00 26:05

Okay. There was a lot in there as well. But if I could just um I'm a handful of told you I was a handful of it. No, no, because you've touched on like so many things, but I just kind of want to address all of those points. So um your first uh point on well, firstly, South Auckland podcasters, awesome. I love it. Um, you know, I love seeing the you know proliferate proliferate proliferation of voices um and the diversity of voices that are popping up. Um that is awesome. Um now in terms of um appeal, so every podcaster in South Auckland wouldn't need to go to appeal, right? So uh this is uh on a jurisdictional point that would have applied to everyone.

SPEAKER_02 26:49

So you're so you're saying streamers because it's live. Is that the distinction you're making?

SPEAKER_00 26:54

Rather than a recorded um no, I'm just saying that um so your um so your point on appeal, right? So uh so I was just talking about the very narrow point on jurisdiction, right? Um, so did the BSA have jurisdiction in um, you know, the in determining a complaint about the platform. So that was one case, but that ruling, like that clarification from the court would have applied to all podcasters. So not everyone would have had to appeal something like that. Um and you know, yes, access to justice um, you know, does have a cost. Um, but uh I mean I'm just saying that I did see um people come forward and say, I'll I'll fund the case, um, because they really, you know, cared about the um the broader point, right? But I I'm just saying, I'm not advocating for or or against it. All I'm saying is that was an option. But the other option that was available uh was for the government to continue with the reforms that it had uh uh started, or successive governments had looked at the issue of reform. Um there were there was years of policy work and consultation that went into it. 197 um individuals and organizations submitted on what they thought um a modernized system, not just for the BSA, but across the media regulatory landscape could look like. And those consultations, that policy work was put on hold last year, and nothing else happened until this case popped up, and uh now the BSA is going to be abolished. So

Reform Paused Then The BSA Scrapped

SPEAKER_00 28:40

um I guess my point is that there uh were established processes that um could have um you know been carried forward uh to get to, you know, it might have you know come to the same result. They might have said, oh actually, now we've viewed everything as a result of this policy work. Actually, we think the best thing is to go to a voluntary model. And I think in terms of um, you know, good governance and good process, you know, there would probably be less noise about um, you know, the way that things have, you know, uh, you know, the way the BSA has been uh scrapped.

SPEAKER_02 29:20

I mean that that's so did was there any reason given for parking it? They just said we'd we don't want to deal with it now.

SPEAKER_00 29:27

Yeah, that's my understanding. It was uh it was just put on hold with no time frame for taking it forward.

SPEAKER_02 29:34

See, I'm I'm finding being in this free speech game now that I don't think there's there might be people within parties like Labour, or even National, who who are quite sympathetic to to censorship or regulation, but clearly there they do worry about it politically. I'm uh coming into the free speech union, I would have been surprised by that. I would have thought that Kiwis would have been a bit more open to this type of stuff and and would have gone along with it more, but we're not. And we've become a bit of an outlier in the West, actually. Like we're closer to the the US now than Australia when it comes to freedoms. We have a lot of freedoms in this country that that are not in the EU, are not in the UK. Like the Mikey Sherman case that's happened, right? Um, in the UK, she could have feasibly been investigated and arrested over that. I mean, that's wacky to me. I mean, that's just absolutely off the charts. But we we don't we don't have anything, we're nowhere near that sensorial estate. So um it So hang on, wait a minute.

SPEAKER_00 30:52

I sorry, I don't know enough about the the UK system, but what she could have been arrested over a private matter that was dealt with a year ago and she could see apologies.

SPEAKER_02 31:03

She could have been investigated by by their police, yeah. Just for saying that in a public space like that. In parliament. I mean, I'm not saying that she would have been prosecuted, she would have gone through the whole system or anything like that, but but the way their laws are, she could have she could have had a visit from the police. I mean, a visit from the police is enough, isn't it? I mean, if you get a knock on the door about things you've said, even if they say just watch your, you know, just watch yourself and then leave again. I mean, that's horrible. Yeah, I mean I we don't have that here, you know. Like while our police shouldn't be doing it. Sometimes they do do it, they shouldn't actually be doing it. But uh we uh it it just I mean, my point is that we we are a bit of an outlier now, and I think that even though a lot of even Labor won't maybe say it as much publicly, I think they're quite cautious about regulation and censorship now. I think they've been the horses have been a bit scared by this. Um that would be my sense.

SPEAKER_00 32:10

Yeah, well, I um, you know, um don't really want to comment on uh you know what transpired because you know Mikey took responsibility for that a year ago and it was resolved privately.

SPEAKER_02 32:28

I I was making a point just with the whole what's what's legal and what's not. I mean, I I feel very bad for her actually. I don't I'm I'm I thought I'm I don't think she should have lost her job over that.

SPEAKER_00 32:39

I mean if it's yeah I saw the FSU statement on that and I thought that was really measured because um I do think that in a you know free and democratic society people should be able to apologize and when they have made a mistake. And I think, you know, I would like to add my voice to the chorus of concern over the way that Mikey was treated in the online

Online Pile Ons Algorithms And Accountability

SPEAKER_00 33:00

pylon that happened afterwards. Uh and I think that's probably a good segue into um, you know, one of the things I think we're not talking about enough in this country, which is that um a lot of the harm is happening to people online. Um yeah, and I I think that is um something that we really need to think about. Um is that we haven't really had a conversation about online harms and accountability and you know, the, you know, what happens with algorithmic amplification and harassment online. Um and yeah, I mean, I think that democracies that we liken ourselves to, like Australia, um, you know, they're they're doing some things in that space, which we are nowhere near, you know, having that conversation here. So yeah, I mean in Australia they have an e-safety commissioner, um, you know, which deals with cyberbullying, image-based abuse, harmful online content, and platform accountability. And I think that that's something we should be talking about more here.

SPEAKER_02 34:09

Yeah, there's always that issue that of a becoming politicized, though, I think, a lot of this stuff. I I mean, I I'm sympathetic to the um I mean, I get abuse, you know. Um we we we got abuse as a free speech union for defending Drag Queen storytime in public libraries. I got some errandus messages. It's like they loved me yesterday, but not today, you know. It was a bit like that. It does happen, I think, for women in politics. I I noticed that Tori Farno is um uh she was she went, was it to the Waitangi tribunal to talk about abuse online and and everything? Um we gotta be careful there too, because I think that um I wonder, see, my i if I had a solution that was intrusive for something like that, uh if I it like if it was like gun to your head, you've got to do something dane in the space, right? Because I am almost an absolutist when it comes to free speech, uh I would I would lose uh anonymous accounts. That's the way I deal with it. I just don't think that it's like a because a lot of these, if if Tori Farno's getting an abusive text or or um uh social media message, that to me would be akin to a crank call, you know, back in the back in the the old phone call days. Um when when kids would call you up Bart Simpson, you know, at the bar calling, calling up and and we'd never defend that as free speech. So when someone jumps on my thread and and and says something anti-Semitic and and and then just and I don't know who they are, they've just got a swasticker as their, you know, profile texture or something like that. I'll block them straight away most of the time. But I uh it's hard to defend that as as free speech, you know. That to me would be that's more like a crank call. Um so that's how I would do it. I think that we'd naturally clean up. I'm I all I'm in my own, I I put my name out there. I'd never go behind a um anonymous account. I don't know why people do. A lot of them say, well, you know, because I don't want to jeopardize my job and things like that. That's fine, I guess. And that is a case. We don't want to jeopardize our employment. But I but I but should you be why would you want to attack other people uh behind an anonymous account? It just feels so cowardly to me, you know. I I uh it's like if you've got something, some strident criticism you want to give Tori Fano, she was elected, she's democratically elected, you know, you should be able to feed back, but not behind an anonymous account, you know. Like that to me is where a lot of the problem comes in. I think it would naturally clean up. There are things I I don't, I wouldn't say, you know, because I'm in my own, I'm in my name, you know, my my neighbors out there. So I and I'm still open with my thoughts and everything, but I moderate a little because the way I do when I'm walking down the street. So it's really no different, you know. Um, so that would be where I'd go with it if I had to go there. But you know, I'm sympathetic to the the whistleblower protections for whistleblowers and and all that that side of it as well. But that could be that that might be how I'd attack that, yeah.

SPEAKER_00 37:49

I think that's a really interesting idea. Um because I I do think it's easy to be a keyboard warrior when you haven't identified yourself, right? Uh but um I think what I'm um more interested in and what other democracies are, you know, grappling with is the responsibility that platforms have, um, you know, for online harms. Uh, you know, because yeah, I mean, just like looking at some of the things our kids have been watching, you know, they've seen massacres and and stuff like that, you know, because it gets amplified really quickly through the algorithms um because people are shocked and um you know they press angry emojis and stuff like that, and the algorithm responds more quickly to those things. So really harmful like things get shared very quickly before the platforms, you know, have even been able to be aware that you know that stuff was happening. So um, you know, I think like rather than policing, you know, it's it's not about you know every individual, it's like what what are the platforms doing to to keep their consumers safe?

SPEAKER_02 38:57

Yeah, because with the algorithms, I guess, like I've found it before. Like if I if I get upset about an anti-Semitic comment, I might comment on and push back on a thread or something. Um, but then then I get like five or six different accounts like that turn up because the algorithms decided oh, he likes this.

SPEAKER_00 39:18

Yeah, and it's like no, I I just pressed angry emoji. Don't show me more.

SPEAKER_02 39:24

I don't like well, I had a horrible one the other day where I did an interview with um uh Peter Bogosian, who we've brought over here from the States, and he was saying that people are over overcorrecting um due to the last five years of relative suppression and cancel culture and things, and that there's a guy who walks around, like his his whole channel is him walking around uh Tennessee or a place like that, going up to black guys and and saying the N-word and and provoking them. That's his whole channel. And he was like awful. And he's like, I don't know how this guy hasn't been shot yet. And and and I saw it once and was like, this guy's just horrendous. But then, yeah, every every two every two posts was this guy. It's like, oh, you want to see this guy?

SPEAKER_03 40:18

No, I don't.

SPEAKER_02 40:19

And I didn't want to see their guy. I I just couldn't really believe it in a way, you know what I mean? So I checked it out, but then it came back and it was there. And uh but again, I mean, i if if we were putting the um the power in people's hands to say, I don't want, I don't want this algorithm, I want to change this. This is what I want to get, this is what I want to see, this is what I don't want to see, and it held to that. But I guess they're what are they doing? Are they looking for new audiences? Are they the rewarding uh I mean, they've got their own sort of system of of virality in spreading these clips, haven't they? Which which is problematic.

SPEAKER_00 41:03

Yeah, I mean, I have to preface my comments by saying that I'm not an expert in this. I just would really like to see um, you know, more of a conversation happening about what can be done about online harm. And that was a major gap that was identified in the policy work that had been done previously by successive governments. Uh, so it was a real pity that that work was shelved. But seeing as the government is, you know, going to scrap the BSA and will have to introduce new legislation, I'm really hoping that we do have a conversation about that and we have um, you know, public consultation on what will replace the BSA.

Public Consultation Trust And Minority Voices

SPEAKER_02 41:40

Yeah, see, I'm a little bit obsessed on public consultation, to be honest. Well, is that well, I I I am, well, because I think that our communities are incredibly diverse, and I noticed like after with the Christchurch call, um, there were a couple of people in our community that were invited to be a part of it, but they were pro heavily pro-censorship people, and our community is not actually heavily pro-censorship. I really do worry that the majority, you know, those in power sometimes they handpick the members of minority groups that they think are gonna give them the narrative they want. I think that happens quite a bit, actually. I I think it's a real concern. Um it it's it's really easy to say, well, here's the person that's gonna agree with me, platform that person and say they speak for everyone, you know, but but they often don't. Um our communities, all our communities are really diverse. And it doesn't help us because what is a stereotype? It's it's the idea that could these communities aren't diverse, you know. And and you would know, I mean, it's like there's gonna be a range of I mean, the working poor tend to be more pro-free speech. So you go into an area like South, you're gonna find more people that are gonna be sympathetic. Because why? Because they've been denied a voice for so long. You know? Um I I just you can game it. That's my problem. I think you can game it a little bit. Um and you know, and the other side of the coin is like a lot of people are just getting, you know, they work at Nyalexi's Tamaki and they're just they're not gonna get involved in this. They're just head down, bum up, you know. Um they they're not political, they're not gonna think about it. Um, but it could end up affecting their children or or or something like that. Um it it it could affect their uh ability to be able to speak. So that would be my concern there. Yeah, with that. Um I mean, yeah, I want the public involved, but I don't know how uh to get the diversity of opinions in there. That would be my concern.

SPEAKER_00 43:54

Yeah, I mean, two things you've touched on that I'd like to comment on. Uh I just want to reiterate that I do think free speech is incredibly important and a fundamental pillar of a democratic society. And then I, yeah, just, you know, picking up on your um apprehension about um consultation processes, and I do think that maintaining public trust and bringing people along is incredibly important. And uh I think when it appears as though um consultation has been selective or only um certain voices are being listened to, um that's when public trust starts to erode. And we're living at a time when trust in public institutions is falling. And yeah, so yeah, I mean, I um you know agree with you that consultation does need to be um, you know, for everyone, and that when people take the time to um engage in these processes, and we've seen like Kiwis do that quite frequently over the past few years, you know, um marching to Parliament in great numbers, you know, submitting so many um submissions that have crashed the parliament website, um, all those kinds of things. When people take the time out of their busy lives to um to submit their views and opinions, then it's really important that it's reflected how like in the decision, like no matter what the decision is, because it might not be in favor of what those people had asked for, but that um people know that their opinion was considered and they know how it contributed to the outcome that you know eventually uh was decided upon.

SPEAKER_02 46:06

Yeah, it's it's it's interesting because when I saw, you know, uh it's not that I was jealous that I wasn't on the Christchurch call, but you know, when I saw who was up there, I was like, oh bro, you know. You know, it's like, oh man. But look, look, so um just on David Harvey, so uh and and what he came up with, he's a really interesting guy. And we've had him, he's a friend of the Free Speech Union, and he was behind some of the drafting of the Harmful Communications Act and things like that. So he's a you know, very, very smart man who's done a lot of you know um good work in the space and is very thoughtful

Voluntary Standards And The Gaps

SPEAKER_02 46:40

about it. Um so of just sort of summarized where he was at with um the whole idea of it being voluntary. Now, you would oppose that broadly, would you? If there were if like the BSA got absorbed into a media council and it was more of a voluntary thing. So we we wouldn't be looking at podcasts and streamers and the streamer from South Auckland or anything like that. It would be the the the media, like the mainstream media that was subject to this. Um how how would you feel about a voluntary system like that?

SPEAKER_00 47:18

Yeah, so David shared his paper with me on LinkedIn.

SPEAKER_02 47:20

Oh nice.

SPEAKER_00 47:21

Uh yes, yeah. Um, I mean, my view is that uh, you know, I'm is that I mean, I think that was one of the ideas that was um considered during the consultation process that had taken place earlier. Um that, you know, it is part of that, you know, um policy reform. I think it needs to be the result of, you know, uh robust policy work, consultation. And uh I think if it had come about as a result of um, you know, that work, you know, being seen to its you know, fruition, then um yeah, it would feel a lot more different than scrapping the BSA on the basis of one controversial decision. Um yeah.

SPEAKER_02 48:09

One one controversial decision and a move, it seemed, to broaden their remit quite significantly.

SPEAKER_00 48:17

So one controversial decision about jurisdiction. Yeah, you're right. Yeah, yeah, yeah. Yeah, I mean but um but nevertheless, you know, there are processes in place where it we could have, you know, been dealt with. Uh and it's not as if this came the decision came out of the blue. They'd been asked, you know, saying for some time reform is needed. And, you know, they'd signalled in 2019 that if they did get a case like that, they would consider it. Uh, but yeah, no, I think um the that model of uh voluntary participation has its pros and cons. And you know, the major con is that uh it only captures the people who actually do want to abide by the rules and you know who who believe in the the standards, but then you'll have a whole group of um you know people who are like, oh well actually it's expensive because self-regulation, we've got to, you know, pay. Um we we we won't need to pay that money if we just decide not to um not to participate. So it it creates gaps, right? Because then not everybody's playing by the same rules.

SPEAKER_02 49:21

No, not everyone's playing by the same rules. I I think it I think David don't want to speak for him, but I think he's assuming that if you were a TVNZ or a or a Herald or a or a or a staff or creating content like that, um you would you would want to be a part of it to prove your standards. Like that would be the mark of your professionalism. If you're an independent streamer, um you're an independent streamer, people can look at you and say, well, you know, this person's gonna have limited resources. A lot of what they say might not be accurate. Um we just have to accept that if I watch it. This would be the definition. There'd be quite a quite a clear line between who could be trusted and and who we might need to take with a grain of salt. And and and I know that some people are going to um not know that and just believe the independent person, but would they be swayed by a media ruling anyway if you're in that ra down down that rabbit hole? I I don't know if you would be, you know. Um Yeah.

SPEAKER_00 50:39

Well, I mean, it's not so much that they'd be swayed by a particular ruling, it's just that um if you have to abide by standards, then you know, already you're making sure that your content is balanced, it's not misleading, it is accurate. Um and yeah, so basically the the voluntary um system will leave you know, will still leave gaps. And already there is a huge gap, you know, with all of the um online uh content. And yeah, I mean people like sort of as you say, um I mean I think people trust the the people that they're listening to, they might not trust media in general, but they will trust the person who comes up on their feet every day. So, I mean, and that's the the risk is that um you know, if there's no standards for uh or no responsibility for platforms to ensure that um, you know, their webcasters uh are not webcasting harmful content. Um, you know, we're just we're just back to square one. We still have the same problem, uh problem, sorry, still the same problem, um, and that this huge um gap between where people are getting their information and you know what's being regulated.

Misgendering Complaints And Pluralism

SPEAKER_02 52:00

Hey, well, we've been talking a while, but I want to end on a slightly controversial note. Um I I did notice in your e-tangeth piece that you talked about how misgendering was being addressed now in um with the BSA. Now, I mean I'm sympathetic to to trans people, but I wonder is that an ideological um are you entering an ideological space at that point? Because this is quite a contested issue with a lot of feminists and people uh taking issue with it. So making a ruling one way there is sort of making a decision on quite a highly contested live issue, don't you think? Like, do you would how would you defend that?

SPEAKER_00 53:00

Well, I think that um, you know, we live in a very diverse society, and you know, part of our social contract is that uh we need to find a way for all of us to live together. Um and ultimate ultimately it's about the kind of society that we want to be. So we want a society where people can express themselves freely, um, but um also um we want a society where we should be recognising our shared responsibilities to one another. So these are difficult questions, but I think democratic societies are supposed to wrestle with um these difficult questions thoughtfully. Um so I mean if you have a look at uh the guidance that the PSA has provided on um on misgendering, um, you know, that that's really just about uh, you know, being respectful to other people.

SPEAKER_02 53:52

Yeah, yeah. But but of course the other side, if they had their own stream, they could get pinged, but they would think that they were presenting a um uh a legitimate political perspective from their position as activists, and that even biological truth was on their side. You know what I mean? So it it does, but I I understand the respect thing, but that feels quite ideological. It feels like a hard one to wade into and probably not a wise one to wade into. That that would be my my feeling on that.

SPEAKER_00 54:25

Yeah, I mean, uh it's not that um the BSA wades into things, you know, um without being asked to determine a complaint. So that cropped up because they were receiving complaints about um particular things. I think, for example, um referring to people with cervixes. Um there was a complaint about that, and uh the BSA found that was not um uh I can't remember actually which standard that was complained against, but that it was accurate to describe people as people with cervixes because there were people who had transitioned who had cervixes who still needed to um receive medical treatment. Uh and so yeah, I mean it's uh you know, the the way I see it is that um, you know, that our society is um well societal expectations um uh are changing, our society is becoming more diverse, and you know, how do we in a pluralistic society find a way that we can live together and still um uphold, you know, freedom of expression, but also respect the rights and dignity dignity of others?

SPEAKER_02 55:39

Yeah, that that that's a topic where compromise needs to be found. But I I c just don't know where they're gonna find that coffin ground. It's it's it's really tricky. It's

Weaponised Complaints And Te Reo Māori

SPEAKER_02 55:50

really tricky. Um one more, one more. Um so uh the the vex vexatious, is it the word I'm looking for? Vexatious uh litigant. Did you have anything? You know, we were you getting uh would did you ever I mean this might be bored business that you can't really get get into, but but would there have been um what what stopped people really abusing the system by just hammering and hammering and hammering certain um uh platforms and and uh or or or um programs? That would be another concern too. Like I noticed when the hate speech laws were in play, there were a lot of people online saying, it's okay, guys, wait till the hate speech laws are here, we're gonna go after that person. So there are people that want to weaponize these things, and we've got to be we've got to have our eyes open to that. Did you have any way to sort of address that? Or if the same name was sending in complaint after complaint after complaint, did you hit just have to neutrally go, well, it's here, we have to consider it.

SPEAKER_00 56:58

So the complaints process is designed to be, you know, free and accessible and it with as little formality as possible. Uh I think, but I can't recall off the top of my head that there might be guidelines um for uh complainants um if their um complaint exceeds a certain word limit. Um but uh here's my complaint.

SPEAKER_02 57:26

Yeah.

SPEAKER_00 57:29

But um, you know, by and large, it's meant to be as user-friendly as possible. Uh there were times when um the BSA might decline to determine a complaint, uh, and that would be because they felt that the broadcaster had addressed it already. Um yeah, all that, yeah.

SPEAKER_02 57:46

Well well, the people complaining about Tiry O Mauri, like would there be there'd be people that just would go on and on and on, like the same people, you know, like even I think the person that complained against Sean at the platform did a few of them. So they've got it in for him, you know, like that's kind of clear. They've got it in for him. That's what I mean. Can they can you uh are there people out there that are going to abuse that system and and and how would you address that? Yeah.

SPEAKER_00 58:14

So for Ted El Māori, the uh BSA made a decision, I think it was in 2020, that it would no longer receive complaints on Tedel Māori uh because it's an official language of New Zealand. So therefore it's not offensive for broadcasters to be speaking our national language on TV or on radio. Uh so we we don't we don't we still receive well, I mean we still people still wanted to complain about Teddy Al Māori, but we wouldn't determine complaints on that. What's the complaint? Uh well so it's and I didn't understand this.

SPEAKER_02 58:50

I mean, what's the Yeah.

SPEAKER_00 58:52

So I find it really interesting, right? Because I've um lived overseas for 10 years, and most other places I've lived, uh they speak at least two languages. And, you know, I think and also I grew up um in an era where we learned how to count, we did the greetings, like we learned pronunciation and all of that kind of stuff. So it's just kind of kind of second nature, I think, to a lot of um uh New Zealanders, sort of of a certain like age and demographic, uh, for us to be, you know, speaking both teddy and, you know, like, you know, maybe not fluently, but you know, just I think New Zealand's a kind of place where we do use um teddy words without translation a lot, you know. Uh and so I think it would it's part of the character of our country.

Closing Thoughts And How To Connect

SPEAKER_02 59:45

Hey, free speech union. Tadeo Māori, more speech, more free speech. Yeah. Hey, um Paulutu, thank you so much for the time you've given us today. I think it was a good discussion. Um yeah, really enjoyed it. And and you know, having you here was um it is going to be really good for our supporters to get a good sense of what happened inside happens inside the the BSA and and your positions and and why this is important to you. Um Yeah, I think this has really added nuance, much needed nuance to the to the discussion. So I thank you again for for joining us here on Free to Speak.

SPEAKER_00 1:00:23

Well, thanks so much, Dane. I've really enjoyed the exchange of views.

SPEAKER_01 1:00:27

Thank you for listening to Free to Speak. If you enjoyed this episode, please subscribe and consider sharing the podcast with others. We release new episodes regularly, and subscribing is the easiest way to stay up to date. If you have any questions, feedback, or suggestions, you can contact us at podcast at fsu.nz. If you want to find out more about the New Zealand Free Speech Union, visit fsu.nz.