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 that included very brief footage of a young person using a hand-held grinder without a guard. The complaint was that this was contrary to health and safety guidelines and promoted poor industrial practice. Noting the clip was fleeting and peripheral to the overall nature and purpose of the advertisement, the Authority did not find any breach of broadcasting standards. No actual or potential harm was caused in terms of the objectives of the applicable standards that outweighed the importance of freedom of expression and free political speech in the lead up to the general election.

Not Upheld: Election Programmes Subject to Other Codes (Law and Order, Good Taste and Decency, Accuracy)

Introduction

[1]  A Labour Party election advertisement was broadcast on TV Three at 7.33pm on 4 October 2020, which included brief footage (approximately two seconds) of a young person using a hand-held grinder without a guard.

[2]  Joe Lange complained that the advertisement promoted ‘very poor industrial practice in regards to safe power tool use’ and stated that ‘under health and safety, it is a sackable offence in many workplaces to operate an angle grinder with no guard’.

[3]  In considering this complaint, we have viewed the advertisement and we have read the correspondence listed in the Appendix.

Overview – Election programmes

[4]  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 13 September 2020 to midnight on 16 October 2020. This is a complaint about an election programme broadcast for the Labour Party by TV Three.

[5]  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.

[6]  When we receive a complaint about an election programme, we seek submissions from the complainant, the broadcaster and also the political party. We also endeavour 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 requests for submissions.

The relevant standards

[7]  Mr Lange alleged that the broadcast breached Standard E1 of the Election Programmes Code (Election Programmes Subject to Other Codes), in respect of the good taste and decency standard (Standard 1) and accuracy standard (Standard 9) of the Free-to-Air Television Code of Broadcasting Practice.

[8]  The good taste and decency standard states that current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. Its purpose is to protect the public from broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community values.¹

[9]  The accuracy standard states that broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. In an election programme context the assessment of whether any 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.² 

[10]  We have also interpreted the wording of the complaint, with respect to the footage being contrary to health and safety practices, as implicitly raising issues under the law and order standard (Standard 5), and invited the parties’ submissions on that standard as well as those explicitly raised in the complaint.

[11]  The law and order standard states that broadcasters should observe standards consistent with the maintenance of law and order. The purpose of this standard is to prevent broadcasts that encourage audiences to break the law, or otherwise promote serious antisocial or illegal behaviour.³ The context of the programme and the wider context of the broadcast are important considerations when assessing complaints under this standard and, in particular, when assessing the programme’s likely practical effect.⁴

Responses from the Labour Party and the broadcaster

The Labour Party’s response

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

• ‘I note from the complaint’s language, and from the Worksafe website, that there is no blanket prohibition on using an angle grinder without a spark arrester guard. The complainant suggests this practice is outside health and safety rules in “many workplaces” (my emphasis) rather than all workplaces. And the Worksafe website recommends mitigating the risk of flying sparks by taking an action to "SET spark arrestors in place to contain sparks as much as possible.” (my emphasis). These sources both indicate that there is not a blanket ban on using angle grinders in the way depicted in our advertisement. That means the context around the particular workplace and task is important.’
• ‘Our advertising agency has advised that “This scene was filmed with a qualified supervisor on set who was the owner of the premises and the person operating the machinery is an apprentice under the supervision of his employer on site.” In allowing his apprentice to operate the machinery this way, the qualified supervisor was exercising a professional judgment that doing so was safe. I submit that the on-site supervisor – rather than the complainant or the [Authority] – is in the best position to know the particular health and safety rules in this workplace and its full context.’

The broadcaster’s response

[13]  MediaWorks responded to the complaint as follows:

• ‘In our view, the brief shot of a young tradie using an angle grinder while wearing protective ear-muffs and protective eye-wear is unlikely to offend or disturb a significant number of the intended audience or to exceed the boundaries of the Good Taste and Decency standard.’
• ‘On Accuracy, considering the Labour Party’s point, that there is no WorkSafe blanket prohibition on using an angle grinder without a spark arrester guard, the Standards Committee is satisfied the broadcast did not contain any material errors of fact.’
• ‘We doubt any reasonable viewer would view the footage as seriously encouraging the audience to break the law or to promote any criminal or serious antisocial activity which is what [the Law and Order] Standard is designed to protect against.’

Our analysis

Overview – The right to freedom of expression and political speech

[14]  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

[15]  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 the level of actual or potential harm that might have been caused by the broadcast. Given the high value placed on political speech in the lead up to a general election, a correspondingly high threshold must be reached to conclude that an election programme has breached broadcasting standards.⁶

Law and Order

[16]  In our view, the law and order standard is the most applicable to the complainant’s concerns that the clip promoted poor industrial and health and safety practices.⁷

[17]  From the information available on the WorkSafe website, it appears that using a hand-held grinder without a guard may be inconsistent with health and safety guidelines.⁸

[18]  However, regardless of the legality or merits of the depicted practice, we are satisfied that in the context of this election advertisement, the very brief clip did not promote illegal activity or otherwise breach the law and order standard, taking into account the following contextual factors:

• his was an election advertisement for the Labour Party, the dominant purpose of which was clearly political advocacy and promoting Labour Party policy in the lead-up to the general election.
• In the voiceover for the advertisement, Rt Hon Jacinda Ardern commented on the Party’s response to COVID-19, and its plan for recovery in terms of creating jobs, supporting small businesses and growing the economy.
• The inclusion of the clip of the young person using an angle grinder, in this context, was a visual accompaniment to a reference to the Labour Party’s policy regarding trade apprenticeships. The clip was extremely brief, being approximately two seconds in the context of a 30-second advertisement.
• There was otherwise no reference to industrial practices.
• The remainder of the advertisement contained a wide range of images including of road workers, a café, forestry workers, a teacher, a doctor, young people playing rugby, a family at the beach, and a close up of Ms Ardern saying ‘Together let’s keep moving’.

[19]  We have not found actual or potential harm that justifies restricting the important right to free political expression. We therefore do not uphold this part of the complaint.

Remaining standards

[20]  We have also not found any breach of the good taste and decency or accuracy standards for the following reasons:

• The brief clip would not have caused widespread undue offence or distress and did not undermine community standards of taste and decency, in the context of a Labour Party election advertisement promoting a range of Labour Party policies (good taste and decency).
• The clip did not amount to a ‘material point of fact’ to which the accuracy standard applied and would not have misled viewers in light of the contextual factors described above (accuracy).

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

14 October 2020

Appendix

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

1  Joe Lange’s election programme complaint to the Authority – 5 October 2020

2  The Labour Party’s response to the complaint – 7 October 2020

3  The Labour Party’s response to the law and order standard – 8 October 2020

4  MediaWorks’ response to the complaint – 8 October 2020

5  MediaWorks’ response to the law and order standard – 8 October 2020

¹ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
² Guideline E1b
³ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁴ Guideline 5b
⁵ See the New Zealand Bill of Rights Act 1990, sections 5 and 14, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁶ Guideline G1a, Election Programmes Code of Broadcasting Practice
⁷ The Authority has previously considered other complaints about health and safety practices under the law and order standard, for example: Clapham and Mediaworks TV Ltd, Decision No. 2018-089, Blue and Television New Zealand Ltd, Decision No. 2011-045, and Boreham and Television New Zealand Ltd, Decision No. 2008-118.
⁸ The WorkSafe website states (https://worksafe.govt.nz/topic-and-industry/power-tools/fixed-hand-held-grinders/): ‘For hand-held grinders, guards MUST be fixed between the wheel and the operator’.  It also states, ‘While this guidance has not been updated to reflect current work health and safety legislation (the Health and Safety at Work Act 2015 and regulations), it may still contain relevant information and practices to keep workers and others healthy and safe’.