BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

An election advertisement for the National Party referred to ‘Labour, The Greens and Dotcom’ wanting to spend ‘more than 30 billion dollars’. The Authority did not uphold the complaint that the reference to ‘Dotcom’ was misleading because there was no ‘Dotcom Party’, and that the figure of 30 billion dollars was inaccurate. The advertisement did not explicitly refer to any ‘Dotcom Party’, Kim Dotcom has been a prominent figure in the election, and most listeners would have understood it to be a reference to the Internet Party, and that political party advertising is broadcast in the context of a robust political arena in the lead-up to a general election. The reference to other parties’ policy costs was analysis and interpretation by the National Party, and acceptable in this context.

Not Upheld: Election Programmes Subject to Other Standards (Accuracy, Discrimination and Denigration), Denigration, Misleading Programmes

Introduction

[1]  An election advertisement for the National Party was broadcast on Newstalk ZB on 16 September 2014. The advertisement stated:

What have we learnt in this election? We’ve learnt Labour, the Greens and Dotcom want to spend more than 30 billion dollars, we’ve learnt they want to impose five new taxes, and we’ve learnt they can’t work together.

[2]  Sanjay Kumar complained that the advertisement was misleading and denigrated Kim Dotcom, because there was no ‘Dotcom’ political party and there was no evidence to show Mr Dotcom had proposed spending 30 billion dollars. He raised Standards E1 (election programmes subject to other codes), E3 (denigration) and E4 (misleading programmes) of the Election Programmes Code, and the accuracy and discrimination and denigration standards of the Radio Code of Broadcasting Practice.

[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 [14] below.

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

Was the advertisement misleading?

[5]  The accuracy standard (Standard 5) in the Radio 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

[6]  In response to Mr Kumar’s complaint, The Radio Network Ltd (TRN) argued that it was not misleading or unfair in the context of a robust election campaign to refer to Dotcom in the advertisement, as ‘colloquially the Internet Party is known as Dotcom’s party. He largely funded it and is seen as its patron’. It considered listeners would have understood it as a reference to the Internet Party.

[7]  The National Party said, ‘Mr Dotcom is a high-profile political figure who is the founder, funder, and principle advocate for the Internet Party (campaigning as Internet Mana)’, and that political parties are entitled to associate the policies of other parties with the political figures that belong to, and advocate for, those parties. It argued that political parties ‘are also entitled to draw voters’ attention to the costs that other political parties would impose on the electorate’. It pointed to three of the Internet Mana Party’s policies – reducing tertiary education fees to zero, a universal student allowance, and a student loan forgiveness programme – which had already been costed independently at an estimated $17.6 billion. This figure was added to Labour’s and the Greens’ policy costs to get the figure of $30 billion, it said.

[8]  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.

[9]  We think that in this political context, listeners understand that election advertisements in which political parties are pushing their own policies and agendas, by their nature, are not ‘factual’, but are more spin and analysis. They are framed for immediate and maximum impact, often using short-hand or hyperbole for effect.

[10]  Kim Dotcom has been a particularly prominent figure in the lead-up to the 2014 general election, and is a high-profile public figure in general. Most listeners would have understood the advertisement to be referring to Kim Dotcom as the founder of the Internet Party, and would not have taken it as a reference to a ‘Dotcom Party’ which does not exist. We expect that, in the course of the lead-up to the election and the extensive media coverage of Kim Dotcom, the public understand his particular place and where he fits in the political landscape, including his role in the establishment of the Internet-Mana Party.

[11]  In relation to the reference to $30 billion, Mr Kumar’s concern is that Mr Dotcom had not proposed to spend that much money. The advertisement said, ‘Labour, the Greens and Dotcom want to spend more than 30 billion dollars’. It was not suggesting that Kim Dotcom alone intended to spend 30 billion dollars if elected. We do not think it was misleading, in the context of a robust election campaign, for the National Party to analyse the policy costs of other parties or draw attention to them in this advertisement. For the same reasons outlined above regarding Kim Dotcom, we think reasonable listeners would have interpreted the comment to mean that the policy costs of the Labour Party, the Green Party, and the Internet-Mana Party (not Dotcom as an individual) combined were estimated by the National Party to total more than 30 billion dollars.

[12]  We are satisfied that listeners 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 breach the other standards raised?

[13]  Mr Kumar also raised the discrimination and denigration standard of the Radio Code, and Standards E3 and E4 of the Election Programmes Code in his complaint.

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

• the discrimination and denigration only applies to sections of the community, not individuals, so it cannot be considered in relation to Kim Dotcom (Standard 7)
• Standard E3 states that while an election programme may oppose a political party or candidate, it may not include material which denigrates a political party or candidate; for the reasons outlined above in our consideration of accuracy, we are satisfied that the reference to ‘Dotcom’ in the advertisement, in a robust political context, did not denigrate Kim Dotcom in the manner envisaged by this standard
• 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.

[16]  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

31 October 2014

Appendix

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

1                 Sanjay Kumar’s formal complaint to the Authority – 17 September 2014

2                 TRN’s response to the complaint – 17 September 2014

3                 The National Party’s response to the complaint – 18 September 2014

4                 Mr Kumar’s final comment – 21

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