Cullen and Television New Zealand Ltd - 2017-072 (20 September 2017)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Jeremy Cullen
ProgrammeNational Party Election Programme
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A National Party campaign advertisement (an election programme for the purposes of the Election Programmes Code) parodied Labour’s campaign motto, ‘Let’s do this’ with an advertisement with the tagline, ‘Let’s tax this’. The advertisement suggested that a Labour government would impose a number of new taxes (a capital gains tax, land tax, regional fuel tax, income tax, water tax and a ‘fart tax’). A voiceover at the conclusion of the advertisement said: ‘There’s only one way to stop Labour’s taxes. Party vote National’. The Authority did not uphold a complaint that the election programme was inaccurate and misleading by implying a number of taxes would be introduced or raised by Labour, which was not the case. The Authority considered it would be clear to viewers that the election programme was a campaign advertisement for the National Party, which clearly advocated the National Party’s own views. As such, the advertisement reflected the National Party’s opinion and analysis of Labour’s policies, rather than factual information (as envisaged by the standard) and viewers would not have been misled. The Authority also emphasised the importance of political speech and concluded that, in the robust political environment leading up to the election, the high threshold for finding a breach of broadcasting standards was not met.
Not Upheld: Distinguishing Factual Information from Opinion or Advocacy
 A National Party campaign advertisement (an election programme for the purposes of the Election Programmes Code) parodied Labour’s campaign motto, ‘Let’s do this’ with an advertisement with the tagline, ‘Let’s tax this’. The advertisement suggested that a Labour government would impose a number of new taxes (a capital gains tax, land tax, regional fuel tax, income tax, water tax and a ‘fart tax’). A voiceover at the conclusion of the advertisement said: ‘There’s only one way to stop Labour’s taxes. Party vote National’. The election programme was broadcast at 7.20am on 14 September 2017 on TVNZ 1 (the ‘original advertisement’).
 On 15 September 2017, following Labour’s announcement on 14 September 2017 that it would delay implementation of recommendations for changes from its proposed tax working group (if it was elected) until after the 2020 election, National released an edited version of the campaign advertisement. A voiceover described the various taxes as ‘delayed’, ‘coming’, ‘still on’ etc. The concluding voiceover said: ‘There’s still only one way to stop Labour’s taxes. Party vote National’.
 Jeremy Cullen complained that the original campaign advertisement (the election programme) was inaccurate and suggested that all of the taxes listed would be introduced by Labour, which was not the case. Mr Cullen submitted in particular that the claim that Labour would increase income tax was false,1 and that the original advertisement was even more inaccurate following Labour’s announcement on 14 September 2017.
 The issue raised in Mr Cullen’s complaint is whether the broadcast breached Standard E2 – Distinguishing Factual Information from Opinion or Advocacy, of the Election Programmes Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Overview – Election Programmes
 In an election year, the Election Programmes Code applies to election programmes which are broadcast for a political party or candidate during the election period. This year, the election period runs from 23 August to midnight on 22 September 2017. This is a complaint about an election programme broadcast for the National Party by TVNZ.
 Generally, broadcasting complaints will first be determined by the broadcaster. However, the Broadcasting Act 1989 requires that complaints about election programmes must come directly to the Authority for determination. This is so that any concerns about programmes that may influence voters can be determined swiftly.
 When we receive a complaint about an election programme, we seek submissions from the complainant, the broadcaster and also the political party. We also seek to determine the complaint under a fast-track process. We thank the parties involved in this matter for their timely response to our request for submissions.
Did the election programme contain factual information not clearly distinguishable from opinion or advocacy?
 Standard E2 of the Election Programmes Code states that an election programme may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy.
The parties’ submissions
 Mr Cullen submitted:
- The advertisement suggested that Labour would increase income tax, when this had been specifically ruled out by the Labour Party.2
- It was made clear in surrounding media coverage that National’s claim of income tax increases was false.3 National’s claim could not be justified by alleging that the tax cuts were already in legislation and would come into effect after 1 April 2018, as it was always the case that, should Labour be elected, they would remove the legislation.
- The advertisement also implied that all of the taxes referred to would be introduced by Labour, which was not the case. Prior to 14 September 2017, Labour had said it would wait until the results of a working group to decide tax policy. Following Labour’s announcement that any tax changes would not be introduced until after 2020, the advertisement was even more inaccurate.
 The National Party submitted:
- Viewers of the advertisement would be under no misapprehension that this was a political campaign advertisement (evidenced by the advertisement’s authorisation and National Party vote message). The purpose of the campaign advertisement was to highlight National Party policy compared to Labour. As such, it was ‘advocacy advertising expressing an opinion which is essential and desirable for the functioning of a democratic society’.
- The advertisement intended to present National’s view on the contrast between the parties’ approach to the tax system, by arguing that Labour’s planned changes to the tax system lacked sufficient detail for New Zealanders. All of the examples presented were true and credible, ‘based on the broad and vague proposals Labour has made’.
- Supporting evidence of each tax category could be provided, as follows:
- Capital Gains Tax: there was no suggestion that the house featured in the advertisement was a ‘family home’. Labour has not ruled out that a Capital Gains Tax would not apply to other housing assets.4
- Land Tax: While Labour had ruled out a tax applying to land under the family home, they had not ruled out a land tax.5
- Income Tax: Labour would reverse tax cuts announced by National which would come into effect from 1 April 2018. As such, the public would pay more tax under Labour than under National.6
- Regional Fuel Tax: Labour provided Auckland Council with the ability to implement a regional fuel tax.7
- Water Tax: A water royalty could be imposed on bottled water, and the campaign advertisement showed a range of other water-based products that this new tax could affect, such as beer and orange juice.8
- ‘Fart tax’: Including agriculture in the Emissions Trading Scheme would bring costs to farmers, as ‘it is widely held that emissions from livestock are significant sources of climate-altering emissions’.
 TVNZ submitted:
- In a democracy such as New Zealand, the right to freedom of expression is important and must be protected. Political parties must be able to advocate for their respective viewpoints during an election period, and there must be a robust process allowing for these different viewpoints to be heard.
- In this case, National was advocating that there could be more tax in certain areas with a Labour government than with a National government.
- Advocacy is characterised by parties having differing views which are expressed in robust terms. This advertisement clearly represented the National Party’s view or opinion of Labour’s tax policies, and was therefore not misleading.
- Provided the National Party had a reasonable basis for advocating for this opinion, even if there were competing views from other parties on this issue, the ad would not breach Standard E2.
 The starting point in our consideration of any complaint is the right to freedom of expression, including the broadcaster’s – and in the case of an election programme, political parties’ – right to impart ideas and information and the public’s right to receive that information. This is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.
 We may only interfere and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.9 In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against against the level of actual or potential harm that might be caused by the broadcast. In this case, Mr Cullen has submitted that this National Party election programme was inaccurate and would have misled audiences.
 The purpose of Standard E2 is to ensure that political parties and broadcasters take care not to mislead viewers by presenting political assertions as statements of fact. The expression of opinion in advocacy advertising is a desirable and essential part of democratic society, but factual information should be clearly distinguishable from opinion or advocacy.
 We consider this case is analogous to a previous decision, Allen and MediaWorks TV Ltd,10 which considered an election programme complaint about a National Party campaign advertisement (during which John Key stated, ‘we’ll start paying off debt’). In that case, we found that it would be clear to viewers that a National Party campaign advertisement would promote its own party policies (in this case, through its criticism of opposition policies). The Authority has previously recognised that election advertisements that promote a party’s policy promises are, by their very nature, ‘highly political, often hyperbolic vehicles for advocacy’, rather than factual information.11 We consider the same reasoning applies here.
 We are satisfied, in this case, that viewers would have understood that this election programme was a campaign advertisement, advocating for the National Party and its views. The advertisement promoted National’s views of Labour’s various tax announcements and, in critiquing those announcements, contrasted National with the Labour Party, with the aim of promoting its own party. As such, we consider it would have been clear to viewers that the advertisement did not contain factual information, but rather National’s own analysis of Labour’s comments, policies and tax announcements.
 In its submissions, National have provided its justification for including each category of tax in the advertisement, and its reasons for arguing that these taxes should not be introduced.
 Further, National edited the campaign advertisement to take into account Labour’s recent announcement on its tax policy, shortly after the announcement was made, to clarify that some of these taxes would not be implemented until after 2020. We also note that at the time of this advertisement there was substantial coverage on television, radio and other platforms about the parties’ various tax policies, which provided the public with information to consider in making their voting decision.
 For these reasons, and taking into account the public interest in election programmes and party policies, and the robust political environment in the lead up to the general election, we do not agree that the right to freedom of expression ought to be limited in this case.
 We therefore do not uphold the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
20 September 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Jeremy Cullen’s election programme complaint – 14 September 2017
2 Mr Cullen’s additional comments – 15 September 2017
3 The National Party’s response to the complaint – 18 September 2017
4 TVNZ’s response to the complaint – 18 September 2017
5 Mr Cullen’s final comments – 18 September 2017
1 Citing Truth or fable: Fact-checking the Stuff finance debate (15 September 2017, Stuff.co.nz)
2 Citing Labour rules out income tax increase (23 August 2017, RNZ)
3 See Truth or fable Stuff.co.nz article above
4 See No capital gains tax yet - Jacinda Ardern (6 August 2017, Newshub)
5 Labour clarifies land tax position (6 September 2017, RNZ)
8 See above
9 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
11 Above, at  and