BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about an election advertisement for the Labour Party which included questions on possible funding cuts a National-led government might make. The complaint was that these statements were an inaccurate portrayal of National’s proposed cuts. The Authority found the statements were clearly questions and advocacy promoting the Labour Party, rather than statements of fact, and that viewers were unlikely to be misled. The harm alleged was not sufficient to outweigh the importance of freedom of expression and free political speech in the lead up to the general election, or to justify regulatory intervention. Standard E4: Misleading Programmes did not apply.

Not Upheld: E1: Election Programmes Subject to Other Code (Accuracy), E4: Misleading Programmes

The broadcast

[1]  A New Zealand Labour Party programme was broadcast on 23 September 2023 on Sky Sport 4. The programme stated:

National and ACT’s tax plan doesn't add up, but the money will have to come from somewhere. So what will they cut to pay for it? Free public transport? Free prescriptions? Two years off your pension? Or six billion dollars cut from other important services? Don't take the risk. Say no to National and ACT and stop the cuts before they start. Party Vote Labour.

Overview – Election Programmes

[2] During the  election period, the Election Programmes Code of Broadcasting Practice applies to election programmes which are broadcast for a political party or candidate. This year, the election period runs from 10 September 2023 to midnight on 13 October 2023. This is a complaint about an election programme broadcast for the Labour Party on Sky Sport 4.

[3]  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.

[4]  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 and detailed responses to our request for submissions.

The parties’ submissions

The complaint

[5] Todd Evans complained the broadcast breached standard E4 - misleading programmes. They added:

• ‘The ad was intentionally spreading factually incorrect and misleading information to try to change voters’ minds.’
• ‘The ad tells voters that National’s tax plan requires them to cut critical public spending, and goes on to suggest things that they may cut, however the suggestions they suggest will be cut are things National has already ruled out. This ad is intentionally trying to make Kiwis think that the National Party will cut critical funding to public services and this is completely untrue, they have [publicly] stated they will increase funding’.
• ‘The TV ad was created in such a way that yes it uses factual information but it uses that information out of context and creates a misleading argument against their opponents.’ The ad gives the impression that National is cutting $6 billion from important services, when the cuts are of ‘wasteful spending’. ‘The cuts of wasteful spending [do] not amount to 6 billion in cuts to critical services. National has promised to increase funding to critical services like education and healthcare.’

The Labour Party’s response

[6]  The Labour Party responded to the complaint as follows:

• ‘Our advertisement raises the possibility of four specific sets of cuts that National could make, in part because the costings for their tax plan don’t add up. Far from being inaccurate, each of those four cuts have already been confirmed by the National party themselves.’

Cuts to free public transport

• ‘National will end funding for Labour’s “Community Connect” programme of additional public transport subsidies in Budget 2023. [Community Connect subsidises], among other things, free fares for children aged 12 and under, and half price fares for people aged 24 and under.¹’ 

Cuts to free prescriptions

• ‘National’s policy is to reverse Labour’s move to make prescriptions free for all. National would reinstate a fee for prescriptions for vast numbers of New Zealanders.²’

Two years off your pension

• ‘National’s policy is to progressively raise the age of superannuation from 65 to 67. Once implemented, that will mean New Zealanders receive a pension for two years less than they would under the current law.³’ 

$6 billion cut from other important services

• ‘National says it will cut $8.456 billion over its forecast period through “savings and reprioritisations” by way of “bureaucracy savings”, “climate dividend”, “close Labour programmes” and “contractor savings”.⁴’
• ‘We are excluding the $2.361 billion “climate dividend” from this total, leaving a touch over $6 billion in other cuts.’ 

[7]  ‘Labour’s advertisement does nothing more than document cuts National has already committed to make. These are not cuts that, in Mr Evans’ words, “National has already ruled out.” Instead, these are cuts National has already ruled in.’

The broadcaster’s response

[8]   Sky considered the programme did not breach any broadcasting standards, stating:

The Election Programmes Code confirms that “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.” As such political parties must be able to present their respective position to the electorate throughout the election period. In this case the Labour Party was advocating that there is a risk that National / Act’s tax plan could result in cuts to services. The advertisement represents Labour Party’s view or opinion of the risks of National / Act’s tax policies and accordingly it was a recognisable piece of advocacy and viewers would be able to interpret this advertisement as a political campaign advertisement. 

Jurisdiction – scope of complaint

[9]  While Evans’ complaint did not explicitly rely on standard E1 - Election Programmes Subject to other Code,⁵ we consider the wording of Evans complaint, including that the broadcast was ‘misleading’, ‘factually incorrect’, and ‘completely untrue’ raises issues more relevant to this standard (and specifically to the accuracy standard of the Code of Broadcasting Standards in New Zealand, which is applicable by virtue of standard E1). We do not consider that the other standard raised (E4 Misleading Programmes) adequately captures the key concerns of the complainant in this area because:

• The purpose of the misleading programmes standard is to prevent audiences being misled, by ensuring they are aware that they are watching election advertising which promotes a particular party or candidate.⁶
• In this case, we are satisfied that this election programme was clearly a political party advertisement advocating for the Labour Party, and would not have misled viewers in the manner envisaged by the standard. The programme did not imitate any existing programmes or formats. The conclusion of the programme clearly featured a ‘Party Vote Labour’ banner and statement to the same effect, as well as the required authorisation for the programme.

[10]  On this basis, analysis under standard E1 (accuracy) is reasonably necessary in order to properly consider Evans’ complaint and we consider this standard can reasonably be implied into the complaint.⁷

The standard

[11]  The accuracy standard states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.⁸

Our analysis

Overview – the right to freedom of expression and political speech

[12]  We have watched the broadcast and read the correspondence listed in the Appendix.

[13]  The starting point in our consideration of any election programme complaint is the right to freedom of expression, and specifically the importance of political speech, which includes the right of broadcasters, political parties and candidates 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.⁹

[14]  Given the high value placed on political speech in the lead up to an election, a correspondingly high threshold must be reached to conclude an election programme has breached the Election Programmes Code (ie the harm caused or potentially caused by the programme must be great).¹⁰ In this case, the complainant has submitted this Labour Party election programme contained statements that were inaccurate and misled audiences as to the National Party’s policy proposals.

Standard E1: Election Programme Subject to Other Codes (Accuracy)

[15]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹¹ Additionally, guideline E1b to Standard E1 provides guidance on how the accuracy standard in particular is to be applied in an election context, noting that robust debate, advocacy and expression of political opinion are a desirable and essential part of a democratic society. The relevant points of guidance in this case are as follows:¹²

• The assessment of whether any election programme statement amounts to a material point of fact or is misleading will be guided by how a reasonable viewer or listener would interpret it in the context of an election campaign (ie would a reasonable viewer or listener interpret the statement literally or as a transparent promotion of party/candidate policies or encouragement to vote a particular way).
• Whether the statement related to an election issue or party policy that viewers or listeners could reasonably be expected to be aware of (lessening the chance of being misled), is also a relevant contextual factor.

[16]  Having regard to this guidance, we note the following factors:

• The programme posed questions on what funding might be cut under a National / ACT government, rather than making a definitive statement that those cuts would be made. This is evidenced by the tone of the speaker, the question marks depicted after each topic listed and the later statement ‘Don’t take the risk’.
• With regard to the question on the possibility of ‘six billion dollars [being] cut from other important services’, we note that ‘important’ is a subjective rather than a factual term. What one person regards as an ‘important service’ another may not. The use of subjective terms is more consistent with the expression of opinion than fact.
• 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.¹³
• In a previous decision on an analogous case (where a National Party ad suggested various taxes Labour might introduce if elected) the Authority considered the advertisement comprised the National Party’s opinion and analysis of Labour’s policies, rather than making assertions of fact.¹⁴ We consider the same reasoning applies here.
• At the time of this advertisement there was substantial coverage on television, radio and other platforms about the National and ACT parties’ various tax policies, which lessened the chances of the public being misled.

[17]  Considering the above, we are satisfied viewers would have understood the programme as a campaign advertisement advocating for the Labour Party and its views, rather than any representation as to particular facts. Viewers were therefore unlikely to have been misled.  

[18]  Taking into account the vital importance of free political expression in the lead up to the general election, we do not consider that the right to freedom of expression ought to be limited in this case. It is important that political parties and candidates are able to exercise this right to tell their story and convey their political message in the way they choose, so long as standards are maintained. The complainant has not identified any concerns which warrant our intervention on this occasion.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
2 October 2023    

Appendix

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

1  Todd Evans’ formal complaint – 23 September 2023

2  Labour Party’s response to the complaint – 25 September 2023

3  Sky’s response to the complaint – 26 September 2023

4  Evans’ final comments – 26 September 2023

¹ Citing: The National Party “National’s Back Pocket Boost – Tax relief for the Squeezed Middle” (accessed 25 September 2023) <national.org.nz> at page 18
² Citing: The National Party “Helping More Kiwis Fight Cancer” (accessed 25 September 2023) <national.org.nz> at page 2
³ Citing: Nicola Willis “Labour can’t be trusted on Super” (27 May 2023) <national.org.nz> 
⁴ Citing: The National Party “National’s Back Pocket Boost – Tax relief for the Squeezed Middle” (accessed 25 September 2023) <national.org.nz> at page 22
⁵ Standard E1, Election Programmes Code 2023
⁶ Curtis and Television New Zealand Ltd, Decision No. 2017-065 at [15]
⁷ The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint, as per Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁸ Standard 6, Code of Broadcasting Standards in New Zealand
⁹ Introduction, Election Programmes Code 2023 at page 1
¹⁰ Guideline G1a, Election Programmes Code 2023
¹¹ Guideline 6.1, Code of Broadcasting Standards in New Zealand
¹² Guideline E1b, Election Programmes Code 2023
¹³ Brown and MediaWorks TV Ltd, Decision No. 2017-022 at [18]
¹⁴ Brown and MediaWorks TV Ltd, Decision No. 2017-022 at [18]; and Cullen and Television New Zealand Ltd, Decision No. 2017-072 at [17]