BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Te Raumawhitu Kupenga declared a conflict of interest and did not participate in the determination of this complaint.

Complaint under section 8(1) of the Broadcasting Act 1989
Labour Party Election Advertisement – stated that “John Key’s only answer is to sell our best assets” – allegedly inaccurate

Findings
Standard E1 (election programmes subject to other Codes) – Standard 5 (accuracy) – advertisement was clearly Labour’s analysis and opinion of National’s policy on asset sales – guideline 5a to Standard 5 exempts analysis and opinion from standards of accuracy – viewers would have understood that the advertisement was encouraging people to vote for Labour – freedom of expression crucial to democracy and political debate – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An advertisement for the New Zealand Labour Party was broadcast on TV3 on the evening of 21 November 2011, during the 3 News Leaders Debate. The advertisement contained the following voiceover:

Fact:   John Key promised you he wouldn’t put up GST, then he did.

Fact:   Since National became Government, 100,000 Kiwis have moved to Australia.

Fact:   In just three years, unemployment has increased by 50 percent.

Fact:   The cost of living has increased at four times the rate of income.

Fact:   John Key’s only answer is to sell our best assets.

Fact:   Labour will not sell New Zealand’s future.

[2]  Lindsay Lloyd made a formal complaint alleging that it was “plainly misleading, deceptive and wrong” to say that “John Key’s only answer is to sell our best assets”. He argued that “it is quite plain that the National Party has an extensive policy programme with a view to improving New Zealand society which goes well beyond simply selling assets. Most parties do. There is not only one solution.”

[3]  The issue is whether the advertisement breached Standard E1 (election programmes subject to other Codes) of the Election Programmes Code, and Standard 5 (accuracy) of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the advertisement inaccurate or misleading?

[5]  At the outset, we note that Standard E1 of the Election Programmes Code expressly acknowledges that election programmes, including political party advertisements, are broadcast in a robust political arena, and should be viewed and interpreted accordingly. It states:

Robust debate, advocacy and expression of political opinion are a desirable and essential part of a democratic society and broadcasting standards will be applied in a manner which respects this context.

[6]  In our view, the right to free political expression is one of the founding principles of democracy and, especially during a critical time for the democratic process in the build-up to a general election, limitations upon that right must be imposed only after careful consideration. In accordance with section 5 of the New Zealand Bill of Rights Act 1990, the Authority can only limit the right to freedom of expression contained in section 14 of that Act where such a limitation is reasonable and demonstrably justified in a free and democratic society. A high value is placed on political speech, meaning that a correspondingly high threshold must be reached before the Authority would intervene and uphold a complaint as a breach of the accuracy standard.

[7]  Standard 5 (accuracy) of the Free-to-Air Television Code states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The Authority has previously considered the accuracy standard in relation to election advertisements.¹

[8]  Mr Lloyd complained that it was inaccurate and misleading to state, “Fact: John Key’s only answer is to sell our best assets.” Guideline 5a to Standard 5 (accuracy) states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. While the statement was prefaced by the word “Fact”, it is our view that what followed was not a statement of fact to which the accuracy standard applied, but rather analysis and opinion.

[9]  In the lead-up to the general election, the Labour Party had clearly signalled that the National Party’s proposed sale of assets was a main focus of its election campaign. We consider that reasonable viewers would have understood that Labour was promoting its own policies leading up to the election, and that the advertisement presented Labour’s views on, and analysis of, National’s policy on asset sales and its implications. We do not consider that, in this context, viewers would have interpreted the word “fact” literally, as indicating an unqualified statement of fact. The comment was transparently an encouragement for viewers to vote for the Labour Party on the basis of its opposition to the proposed asset sales, and well within the limits of acceptability in a robust election campaign, and political expression and debate.

[10]  In addition, we consider that National’s other policies had been covered extensively leading up to the election, so viewers could reasonably be expected to be aware that the sale of assets was not National’s “only” answer to improving New Zealand’s economy. Accordingly, even had the accuracy standard applied, we do not consider that viewers would have been misled. Viewers would have recognised this as robust political argument, typical of pre-election advertising.

[11]  We note that Mr Lloyd argued that the advertisement was misleading and would not be tolerated in commercial business, or when considered in terms of the Fair Trading Act. As outlined above, a high value is placed on political speech, especially during the lead-up to an election, and in our view election campaigning cannot be viewed in the same way as statements made in a commercial context.

[12]  For these reasons, and taking into account the principles outlined above at paragraphs [5] and [6], we consider that upholding the complaint would unjustifiably restrict the right of the Labour Party and of the broadcaster to free political expression. Accordingly, we decline to uphold the complaint that the advertisement breached Standard E1 and Standard 5 (accuracy).

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
25 November 2011

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1                  Lindsay Lloyd’s formal complaint – 22 November 2011

2                 TVWorks’ response to the complaint – 22 November 2011

3                 The Labour Party’s response to the complaint – 23 November 2011

4                 Mr Lloyd’s final comment – 23 November 2011

 ¹See, for example, Wood and SKY, Decision No. 2011-135, Spencer and TVNZ, Decision No. 2002-088, and The Māori Party and Raukawa FM, Decision No. 2005-103.