Media Insider: Sunday and holiday advertising laws for TV and radio are an unholy mess – now there’s a surprising political twist

Antiquated and confusing? Yes, say critics.

And in a world when media companies are scrambling for every dollar, they had been looking forward to some relatively quick legislative relief to sort it all out.

The Government had promised last July that this unholy mess would be fixed by the end of 2024, in the form of the Broadcasting (Repeal of Advertising Restrictions) Amendment Bill. But we’re in February already, and the law is not now expected to be passed until June – what’s happened?

The proposed new legislation reflects the undeniable, dramatic movement of audiences since the Broadcasting Act was passed in 1989 – viewers have shifted from linear television to digital platforms in droves.

Those digital platforms, including foreign-owned platforms such as Facebook and YouTube, are allowed to run advertisements at any time, whereas the TV stations, including publicly-owned TVNZ, cannot, under Section 81 of the Broadcasting Act.

“In a challenging economic environment for New Zealand media companies, section 81 is actively hindering broadcasters’ ability to earn revenue from advertising,” says a Cabinet paper tabled in December by Media and Communications Minister Paul Goldsmith.

“Industry estimates suggest that local media companies could earn approximately $6 million annually if the restrictions were removed.”

While that $6m is hardly seen as a panacea within the media industry, every little bit helps – and it would represent a small shift in helping level the playing field against the digital tech giants.

As the minister noted in his Cabinet paper: “Lost opportunities for revenue are significant in the current tight financial context, where broadcasters are reducing their commissioning of local content.”

Goldsmith told Cabinet that when public feedback on Sunday TV advertising was last considered, in 2015, public media advocates and groups representing religious interests supported the retention of existing restrictions.

“These groups considered the restrictions help ensure the scheduling of public and special interest content and represent respect for sacrosanct times and dates,” Goldsmith wrote.

However, as technology and audiences shifted, the restrictions on advertising were “increasingly redundant”.

“In turn, advocacy for retaining the restrictions appears to have fallen away. I note the lack of public commentary airing any concerns since I announced my intention to repeal section 81 in July,” said Goldsmith.

The new bill came up for its first reading under urgency on the last two days of Parliament in December.

MPs were given a personal vote, and there was a somewhat surprising opponent – MPs from National’s coalition partner NZ First opposed the legislation at its first reading.

NZ First has previously supported another piece of media legislation – the Fair Digital News Bargaining Bill.

“New Zealand First stands on a conservative platform, keeping the best and, in fact, avoiding the unintended consequences of deregulation,” said NZ First MP Jenny Marcroft, who is also the parliamentary under-secretary for media and communications.

While she and other NZ First MPs personally voted against the legislation at its first reading, she also spoke of wanting to hear from submitters if it did pass and went to select committee.

“New Zealand has quite a strong foundation, a Christian foundation,” Marcroft told Parliament.

“We have a history of it. We have heritage around Christian values. And, at the time, a boundary was drawn around carving out these days as meaningful for religious observance, so having a personal vote is important. These boundaries that we draw around our working lives and our special celebrations are important, and we would be all the poorer without them.”

She acknowledged the massive shifts in audience habits and advertising revenue. It was, she said, a global issue.

“Until we find a satisfactory solution to our old media/new media dilemma, until that can be engineered, until the question of trust in news is addressed, and we return to more rigour in our journalism – and we are seeing some green shoots of that – the migration of audience from our old media to our new media will continue, and this is putting a strain on our mainstream media.

“However, in terms of this bill, it’s extremely unlikely that relaxing advertising on Christmas Day, Good Friday, Easter Sunday, and Anzac Day morning will make the slightest difference to the difficulties overall that New Zealand media organisations are facing.

“Whilst the case may be able to be made that a little bit of revenue … a counter case can also be made that the same amount could be spent on either side of those days currently restricted.”

She said she understood media entities’ arguments but added: “The repeal of section 81 will not necessarily make or break traditional media. There are those bigger factors at force … Whether or not advertising on Christmas Day or even Easter Sunday will make a jot of difference is anybody’s guess.”

Greens and Te Pāti Māori MPs were also opposed. MPs from National, Labour and Act (which opposes the bigger and more significant Fair Digital News Bargaining Bill) were in support.

Labour broadcasting spokesman Willie Jackson told Parliament: “This is a sad, sad, sad night, having to stand up and support this bill. It’s one of the saddest times of my political life, having to stand up and support a bill because Jenny Marcroft and New Zealand First have betrayed the coalition…

“We realise that any sort of pūtea, any sort of dollars for our broadcasting media crew is something – is something, when you consider this coalition has decided to forget all about broadcasting and media.”

While no one in the media industry considers the new bill a panacea, it does offer a small amount of relief, and would also be a signpost that the Government is treating the media industry’s existential crisis with some form of priority.

With its referral to the select committee, the bill is set to be delayed until June 2025 – six months later than the Government had promised.

“The Broadcasting Amendment Bill has been referred to the select committee. It was delayed due to our robust and busy work programme, but now we’re getting on with it,” Goldsmith told Media Insider through a spokesman.

Meanwhile, the Fair Digital News Bargaining Bill is on hold, while the Government waits to see how planned new legislation in Australia plays out.

The Australians have not been cowed by threats from the likes of Meta and Google – the tech giants face fines of hundreds of millions of dollars if they do not negotiate in good faith with news media companies to compensate them for the journalism that helps drive their mega-profits.

But even the Australians’ position will come under renewed scrutiny – the new Trump administration has formed early and strong bonds with the likes of Mark Zuckerberg.

It has made clear it won’t stand for any strong-arming of the American-owned digital tech giants.

For example, as The Australian Financial Review reported last month, almost 90,000 expat Australians in the US could have their tax rates doubled in retaliation for any clampdown on American companies in Australia.

Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME including Managing Editor, NZ Herald Editor and Herald on Sunday Editor and has a small shareholding in NZME.