BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1) of the Broadcasting Act 1989
Election programme – advertisement for the New Zealand Labour Party – woman said “I just can’t trust you” referring to John Key, Leader of the Opposition – allegedly denigrated Mr Key

Findings
Election Programmes Code Standard E3 (denigration) – statements in the advertisement did not reach the threshold for a breach of the denigration standard – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An advertisement for the New Zealand Labour Party was broadcast on TV One on Sunday 2 November at 6.30pm. It showed a woman in her home giving a drink to a toddler sitting in a high chair. The woman said to camera:

You hear people saying, “Helen’s been there a while, give the other guy a go”. And I was thinking, “yeah, sounds fair enough”. But then I thought, things are bad, soon we’re really going to feel it. We need a leader who can hold things together, be there for our kids and our jobs.

You may know a few things about money trading Mr Key, but when it comes to my family’s future, I just can’t trust you.

Referral to the Authority

[2] Grace Haden directly referred a complaint about the advertisement to the Authority under section 8(1) of the Broadcasting Act 1989. She contended that the advertisement was a personal attack on and denigrated John Key by stating that he was not trustworthy. Ms Haden noted that the woman in the advertisement did not identify herself or state that she was giving her own opinion.

Standards

[3] Standard E3 of the Election Programmes Code of Broadcasting Practice is relevant to this complaint. It states:

While an election programme may oppose a political party, or candidate, it may not include material which denigrates a political party or candidate.

Broadcaster’s Response to the Authority

[4] TVNZ stated that the advertisement had contained an authorisation statement from the Labour Party, and on this basis alone the viewing public would have understood that the statements in the advertisement were the opinions of the Party, not statements of fact.

[5] The broadcaster noted that the New Zealand Bill of Rights Act 1990 required a high level of invective before the Authority could conclude that a broadcast encouraged denigration in contravention of the standards. It contended that the threshold for denigration was not met in this case.

Response from the New Zealand Labour Party

[6] The Labour Party acknowledged that the advertisement opposed Mr Key as a candidate. However, it did not agree that it denigrated Mr Key. It noted that the Oxford English Dictionary (2004) defined “denigrate” as meaning “to blacken, sully or stain (character or reputation); to blacken the reputation of (a person etc.); to defame.” The Party wrote:

The common element in each of these definitions is that something is said about the character or reputation of a person which is injurious to that reputation.

[7] The Labour Party said the statement in the advertisement was that the actress did not trust John Key to manage the current financial crisis. This was at most an expression of opinion as to whether he was the right person to be in control, it wrote, and did not contain anything which blackened, sullied or stained Mr Key’s character or reputation. The advertisement, it said, was a repetition of the main Labour Party theme in the election – “that it is all about trust, and voters should put their trust in Labour”.

[8] Given the importance of free expression in an election period, the Party wrote, there would have to be a clear false statement of fact to breach the standard. It contended that the advertisement did not breach the denigration standard.

Authority's Determination

[9] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[10] The complainant nominated Standard E3 (denigration) of the Election Programmes Code in her complaint. The Authority has considered denigration in the context of the Free-to-Air Television Code, which protects sections of the community from denigration, and has said on many occasions that the test is whether a broadcast “blackens the reputation” of one of those groups (see, for example, Decision No. 2006-022). It considers that this test also applies to the denigration standard in the Election Code, which applies to a political party or candidate. In light of the right to free expression protected by section 14 of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast breached the denigration standard (see, for example, Decision No. 2002-152).

[11] The Authority released a Practice Note in December 2006 which considered the concept of denigration,¹ and which included the following statement:

Comments will not breach the prohibition against denigration simply because they are critical of a particular group, because they offend people, or because they are rude; the BSA recognises that allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy. It is only where the expression of these views goes too far that [guideline 6g to Standard 6 of the Free-to-Air Television Code] will be found to have been breached.

[12] On this occasion, the actress in the Labour Party advertisement referred to the current economic crisis and said:

...We need a leader who can hold things together, be there for our kids and our jobs.
You may know a few things about money trading Mr Key, but when it comes to my family’s future, I just can’t trust you.

[13] The Authority considers that the advertisement lacked the necessary invective to cross the threshold for denigration. It notes that in the lead-up to the general election, the Labour Party had clearly signalled that “trust” was its main issue for the election. The Authority considers that the reasonable viewer would have understood that this advertisement continued that theme by suggesting, through an actress, that Mr Key could not be trusted to guide the country through financial hardship. It was transparently an encouragement for viewers to vote for the Labour Party on that basis, and well within the limits of acceptability in a robust election campaign.

[14] In the Authority’s view, to find a breach of the denigration standard in this case would place an unreasonable and unjustified limit on the right to freedom of expression which all political parties and broadcasters are entitled to under the Bill of Rights Act. Accordingly, the Authority finds that Standard E3 was not breached.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
5 November 2008

Appendix

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

1.           Grace Haden’s direct referral to the Authority – 3 November 2008
2.          The New Zealand Labour Party’s response to the Authority – 4 November 2008
3.          TVNZ’s response to the Authority – 4 November 2008

¹practicenotes-denigration