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 concerning an election programme for the National Party. The complainant considered the programme’s statement “only a party vote for National can change the government’” was misleading as ‘voting for National could change the government but it’s not the only way to change the government.’ The Authority considered listeners would have understood the statement to be advocacy or opinion rather than fact, encouraging the public to vote for National, and that there are a number of other parties that could be voted for.

Not Upheld: E2: Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy

The broadcast

[1]  A National Party election programme was broadcast on 2 October 2023 on The Edge. The broadcast stated:

This election, only a party vote for National can change the government, strengthen our economy, lower your cost of living, and deliver you tax relief. Party vote National, and let’s get our country back on track.

[2]  The programme appeared to be voiced by National Party Leader Christopher Luxon.

Overview – Election Programmes

[3]  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 National Party on The Edge.

[4]  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.

[5]  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 concise responses to our request for submissions.

The parties’ submissions

The complaint

[6]  Peter Gill complained the programme’s statement “only a party vote for National can change the government’” was misleading as ‘voting for National could change the government but it’s not the only way to change the government.’

The National Party’s response

[7]  In response to the complaint, the National Party stated:

• ‘Guideline E2b that recognises that “Election advertisements that promote a party’s or candidate’s policy promises are, by their very nature, highly political, often hyperbolic vehicles for advocacy, rather than factual information (and are generally readily distinguishable as such).”’
• ‘We do not consider that “the only way to change the Government is to party vote National” is misleading or that it breaches Standard E2. It very much falls into the category of opinion. This is a long-held view that opposition parties have used in previous election advertising, that as the largest opposition party in parliament National is the only party in a position to change the government.’

MediaWorks’ response

[8]  MediaWorks Radio Ltd did not make any comments in response to the complaint.

Jurisdiction – scope of complaint

[9]  While the complainant did not explicitly rely on standard E2 - Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy¹ (because no standard was expressly identified), we consider the wording of the complaint, including that the broadcast was ‘misleading,’ raises issues most relevant to this standard. On this basis, we interpret the complaint as one made under standard E2.²

The standard

[10]  Standard E2 (Election Programme Advocacy) states election programmes may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy. Factual information must be able to be substantiated.³

[11]  The purpose of the standard is to ensure political parties and broadcasters take care not to mislead listeners by presenting political assertions as statements of fact.⁴

Our analysis

Overview – the right to freedom of expression and political speech

[12]  We have listened to 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.⁵

[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).⁶

Standard E2: Election programme Advocacy

[15]  The expression of opinion in advocacy advertising is a desirable and essential part of democratic society. The guidance to the standard acknowledges that election programmes promoting party or candidate policy promises are, by their very nature, highly political, often hyperbolic vehicles for advocacy, rather than factual information (and are generally readily distinguishable as such).⁷

[16]  In this instance, the complainant is concerned with the programme’s statement “only a party vote for National can change the government”. The question for us under this standard is whether, in the context, this statement constitutes advocacy or opinion presented as fact which is, in turn, likely to mislead listeners.

[17]  The assessment of whether a statement is clearly distinguishable as factual information or opinion or advocacy may include consideration of:⁸

• the context and presentation (including tone) of the programme
• the precision (exact wording) of the statement
• whether the statement can be proven right or wrong (a fact) or is contestable or someone’s view (opinion or advocacy)
• how a reasonable listener would perceive it
• the political identity, reputation and policies of the party/candidate promoted in the programme
• whether the statement can reasonably be interpreted as an expression of political opinion or advocacy, designed to persuade voters to vote for a party/candidate
• whether the particular point was the subject of substantial other coverage (eg on television, radio or other platforms) through which viewers or listeners could reasonably be expected to be aware of alternative views and opinions to consider in making their voting decision.

[18]  While acknowledging that National are not the only party that can be voted for to result in a change in government, we consider the relevant statement was clearly distinguishable as advocacy or opinion rather than fact. In reaching this finding, we consider the following particularly relevant:

• The language used was exaggerated (“only a party vote for National can change the government”).
• It would be widely understood by people of voting age that there are a number of parties that could be voted for, and therefore a party vote for National is not the only way in which the government can change.
• The context and tone of the broadcast, characterised by political advocacy, clearly sought to secure votes by encouraging people to vote for National in order to “get our country back on track”.

[19]  In the circumstances, we consider listeners were not likely to be misled and would have understood the particular statement (and the broadcast overall) as a form of robust political expression, typical of pre-election advertising, advocating for National’s policies and encouraging the public to vote for National.

[20]  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 the right to freedom of expression ought to be limited in this case.

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

Susie Staley
Chair
9 October 2023    

Appendix

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

1  Peter Gill’s formal complaint to the Authority – 2 October 2023

2  Gill’s further comments – 3 October 2023

3  MediaWorks advising no comments – 4 October 2023

4  The National Party’s response to complaint – 5 October 2023

¹ Standard E2, Election Programmes Code 2023
² 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].
³ Standard E2, Election Programmes Code 2023 
⁴ See Brown and MediaWorks TV Ltd, Decision No. 2017-074 at [15]
⁵ Introduction, Election Programmes Code 2023 at 1
⁶ Guideline G1a
⁷ Guideline E2b, and see Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [8]
⁸ Guideline E2d