BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

In an election advertisement for the National Party, John Key stated, ‘we’ll start paying off debt’. The Authority did not uphold the complaint that this was misleading because Treasury had forecast that debt would increase until 2018. Election advertisements promoting party policies, by their nature, are not ‘factual’. Viewers understand that they are highly political, often hyperbolic vehicles for advocacy, and are able to form their own views about any particular policy. Viewers would not have been misled.

Not Upheld: Election Programmes Subject to Other Standards (Accuracy, Fairness, Responsible Programming), Distinguishing Factual Information from Opinion or Advocacy, Misleading Programmes

Introduction

[1]  An advertisement for the National Party was broadcast on TV3 on 28 August 2014. In the advertisement, John Key stated:

We have a simple economic plan for the next three years: one, we’ll live within our means; two, we’ll start paying off debt; and three, we’ll keep generating new jobs.

[2]  Doug Allen made a formal complaint alleging that the advertisement was misleading. He raised Standards E1 (election programmes subject to other Codes), E2 (distinguishing factual information from opinion or advocacy) and E4 (misleading programmes) of the Election Programmes Code, and the accuracy, fairness and responsible programming standards of the Free-to-Air Television Code.

[3]  In our view, the key issue is whether the advertisement breached the accuracy standard (as part of our consideration of Standard E1), and we have focused our determination accordingly. We have briefly addressed the remaining standards at paragraph [12] below.

[4]  The members of the Authority have reviewed the content of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the advertisement misleading?

[5]  Mr Allen complained that the advertisement was ‘misleading and deceptive, because Treasury’s own PREFU [Pre-Election Fiscal Update] reflects that debt is set to increase every year until 2018 (which would be after the next term of government concludes)’.

[6]  In response, the National Party said that the PREFU included a forecast of the government’s current fiscal settings. All political parties were entitled to publicise their policies and campaign on these in election advertisements, it said, and, ‘At any time, these may or may not be consistent with Treasury’s forecasts.’ It concluded that the advertisement accurately represented National’s election policies.

[7]  The accuracy standard (Standard 5) in 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 objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹

[8]  The Authority has previously considered the accuracy standard in relation to election advertisements.² However, election advertisements in which parties are promoting their own policies, by their very nature, are not ‘factual’. They are highly political, often hyperbolic vehicles for advocacy and influence. John Key said in the advertisement that National will ‘start paying off debt’, as part of its ‘economic plan for the next three years’. This is a National Party policy; it is not a quantified promise, a guarantee, or a statement of fact.

[9]  We think viewers would have recognised John Key’s statement in the advertisement as robust political expression, typical of pre-election advertising, advocating for National’s policies and encouraging the public to vote for National. Viewers are able to form their own views about any given policy, with reference to considerable media coverage and publicly available information.

[10]  Further, 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.

[11]  A high value is placed on political speech, meaning that a correspondingly high threshold must be reached before the Authority would intervene. We are satisfied that viewers were not misled, and we consider that upholding the complaint would unjustifiably restrict the right of the National 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).

Did the advertisement otherwise breach the Election Programmes Code?

[12]  Mr Allen also raised the fairness and responsible programming standards of the Free-to-Air Television Code, and Standards E2 and E4 of the Election Programmes Code in his complaint.

[13]  In summary, these standards were either not applicable, or not breached, because:

• the fairness standard only applies to individuals or organisations taking part or referred to in a broadcast, and Mr Allen did not identify who he thought was treated unfairly (Standard 6)
• the responsible programming standard is primarily concerned with programmes being correctly classified and screened in appropriate time-bands (Standard 8)
• Standard E2 states that an election programme may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy. For the reasons we have outlined above in relation to accuracy, we are satisfied that, as a political party advertisement broadcast during the election period, it would be obvious to most viewers that by its very nature the advertisement is advocating for the National Party and its election policies. The statement that ‘we’ll start paying off debt’ was clearly part of National’s economic policy, and was not ‘factual information’
• Standard E4 states that an election programme may not imitate an existing programme, format or identifiable personality in a manner which is likely to mislead. The National advertisement was clearly a political party advertisement and would not have misled viewers in the manner envisaged by this standard.

[14]  Accordingly, we decline to uphold the remainder of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
2 September 2014

Appendix

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

1                 Doug Allen’s formal complaint to the Authority – 28 August 2014

2                 The National Party’s response to the complaint – 29 August 2014

3                 MediaWorks’ confirmation of no comment – 1 September 2014

¹Bush and Television New Zealand Ltd, Decision No. 2010-036

²See, for example, Lloyd and TVWorks Ltd, Decision No. 2011-152 and Wood and SKY Network Television Ltd, Decision No. 2011-135.