BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989

The Complaint
A viewer complained that a One News item "fundamentally misrepresented" the Electoral Finance Bill by saying, first, that "new rules for election spending will mean big donations to political parties' campaigns will no longer be kept secret", and second, that "other secret donors would also be outed – donations over $5000 would have to be declared”. 

The complainant said the Bill required no greater degree of disclosure of the amounts of donations and the identities of donors than the existing law.

The Broadcaster’s Response
TVNZ said the story was about third party activities at election time, rather than donations to political parties. As third parties would have to register with the Electoral Commission if they intended to spend more than $5,000 on an election campaign, their identity would no longer be secret.

The broadcaster maintained that the term "secret donors" referred to third party groups such as the Exclusive Brethren, while the terms "donors" and "donations" were used in a more general way than defined in the Bill.

The Authority’s Decision
The Authority said that while the item did talk about third party activities, the references to "big donations to political parties' campaigns" and "other secret donors" would have left viewers with the impression that all donors to political parties could no longer remain anonymous.

The Authority agreed with the complainant that the item fundamentally misrepresented important parts of the Electoral Finance Bill, which did not require any donors to political parties to reveal their identities if they did not wish to.  Although donations over $10,000 had to be declared, the donors could still remain anonymous. 

The Authority said the item appeared to confuse donations to political parties with donations to third parties; third parties had to declare donors over $500, and register with the Electoral Commission if their election expenditure exceeded $5,000.

Standard 5 (accuracy) – upheld

No Order – decision clarifies correct position at the time of the broadcast; Electoral Finance Bill since redrafted.

This headnote does not form part of the decision.

Broadcast

[1]   An item on One News, broadcast at 6pm on 23 July 2007 on TV One, stated that “new rules for election spending will mean big donations to political parties’ campaigns will no longer be kept secret”. The item said that a proposed law change, the Electoral Finance Bill, would force third parties like the Exclusive Brethren to register with the Electoral Commission before they got involved in the election race.

[2]   The item included quotes from Justice Minister Mark Burton, Foreign Affairs Minister Winston Peters, and National Party leader John Key.

[3]   The reporter referred to the controversy surrounding election spending in 2005, and stated that “if plans go ahead, third parties with a stake in the electoral race would be forced to register with the Electoral Commission”. She added that “other secret donors would also be outed – donations over $5000 would have to be declared”.

Complaint

[4]   Steven Price, with the support of the Coalition for Open Government, lodged a formal complaint about the accuracy of the item with Television New Zealand Ltd, the broadcaster. First, Mr Price complained that the statement “new rules for election spending will mean big donations to political parties’ campaigns will no longer be kept secret” was inaccurate. He contended that the Bill did not change the rules relating to donations to political parties’ campaigns. It did not require any donors to reveal their identities if they did not wish to, he wrote, nor did it require parties to do so. Mr Price stated that the Bill required no greater degree of disclosure of the amounts and identities of donors than the current law.

[5]   Mr Price argued that this statement was the introductory statement to the item, and was therefore particularly important. Further, he said that the statement had not been attributed to anyone, but was stated as a fact.

[6]   Second, the complainant maintained that the statement “other secret donors would also be outed – donations over $5000 would have to be declared” was unclear. He argued that there were two possible meanings to the statement, and both were inaccurate. Most viewers, Mr Price wrote, would understand the reference to “other secret donors” to be donors other than those to third parties such as the Exclusive Brethren, whom the reporter had just been discussing. “Other secret donors” would then be donors to political parties, he said. However, donations over $10,000 had to be declared, but could still be anonymous or routed via trusts. In either case, he contended, the secret donors were not “outed”, and this provision was not “new” because these rules in the Bill simply replicated the existing laws.

[7]   Mr Price stated that the other possibility was that “other secret donors” referred to donors to third parties such as the Exclusive Brethren. This did not make much sense in context, he said, but it was still inaccurate because third parties had to declare donors over $500, not $5,000. He agreed that this part of the law was new, and did “out” such donors. However, Mr Price wrote, it had nothing to do with donations to political parties.

[8]   In the complainant’s view, the item fundamentally misrepresented the contents of the Bill which was, he said, a very important Bill as it went “to the heart of our democracy”. He maintained that viewers would have thought that the Bill contained restrictions on donations to political parties and secret trusts when, in fact, it contained neither. At the very least, the complainant wrote, viewers would have thought the Bill contained some significant “new” rules about political party donations when it essentially replicated the existing regime.

[9]   Mr Price stated that he had some sympathy for the reporter, as the contents of the Bill had not been clearly described by the Government and the Justice Minister had been “rather evasive” at the press conference. However, he said, the Government did not make the claims that were the subject of his complaint and, even if it did, the news item had asserted the statements as fact rather than attributing them to the Government.

Standards

[10]   TVNZ assessed the complaint under Standard 5 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5a    Significant errors of fact should be corrected at the earliest opportunity.

5b    Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5c    Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

5d    Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e    Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Broadcaster's Response to the Complainant

[11]   Looking at the first statement complained about (“new rules for election spending will mean big donations to political parties’ campaigns will no longer be kept secret”), TVNZ noted that the reporter had stated that the story was about the third party activities at election time in particular groups such as the Exclusive Brethren. The story described the row over donations in the 2005 election, including the million dollar anti-Labour and anti-Green Party campaign by the Brethren. Under the proposed Bill, TVNZ said, third parties like the Brethren would have to register and therefore their identity would no longer be secret.

[12]   The broadcaster noted the following statements from the Explanatory Note given by the Government for the Electoral Finance Bill:

The Bill requires third parties to notify the Chief Electoral Officer of their involvement in electoral activity if they are going to incur election expenses over a threshold.

…the Chief Electoral Officer is required to establish, maintain, and publish a list of third parties.

[13]   With respect to the second statement complained about (“other secret donors would also be outed – donations over $5000 would have to be declared”), the broadcaster observed that there was still considerable confusion over the intent and meaning of the Bill. It found that the term “other secret donors” in the item referred to other individuals or groups such as the Exclusive Brethren. The reporter, it said, had stated that the story was not about donors to political parties – the term “secret donors” was referring to groups like the Exclusive Brethren. TVNZ said that the terms “donors” and “donations” in the item were used in a more general way than the definition of the terms in the Bill.

[14] The broadcaster said that the proposal in the Bill was for any individual or group other than a candidate to register their intentions if they planned to spend over $5,000. It noted that The New Zealand Herald had reported that “The Bill will require any campaign costing more than $5,000 to identify itself to the Chief Electoral Officer and register its intentions well in advance of the election. It will not be allowed to spend more than $60,000 a year”.

[15]   Further, TVNZ observed that the Bill stated in regard to Election Advertising by third parties that they must not exceed $5,000 and that a declaration must be given that specifies the full name, address and contact details of the promoter of the advertising. This election advertising was the type of donation that the Exclusive Brethren undertook on behalf of the National Party, it said, and this is what the item was referring to.

[16]   TVNZ found that Standard 5 was not breached.

Referral to the Authority

[17]   Dissatisfied with TVWorks’ response, Mr Price referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989 with the support of the Coalition for Open Government.

[18]   Mr Price questioned why, if the item was solely about third party activities, it opened with the statement that “big donations to political parties’ campaigns will no longer be kept secret”. He stated that there was a difference between donations to political parties and third party activities.

[19]   The complainant wrote that he believed viewers would have been misled into thinking that the Bill provided some “new rules” about donations to political parties, and that these would involve disclosure. Neither was true, he said, and although the item did discuss the new third party rules it did not clarify or correct these inaccuracies.

[20]   With respect to the second statement, Mr Price noted that the preceding sentence had referred to “third parties with a stake in the electoral race”. Surely, he said, “other” secret donors must be “other” than those third parties. He questioned whether viewers would have understood this, and contended it was more likely viewers would have related the phrase “other secret donors” back to the item’s first sentence. In other words, he said, viewers would have concluded that the other secret donors were those making “big donations to political parties’ campaigns” who “will no longer be kept secret”. The complainant stated that TVNZ had not denied that this was inaccurate, but simply said that it was not what the item meant. He wrote:

But even on their (very strained) interpretation of the item, it is still inaccurate. TVNZ cites some provisions in the Bill, but it does not even attempt to defend the statement actually broadcast – that “donations over $5,000 would have to be declared”. TVNZ merely talks about the third party registration and expenditure disclosure rules, and in a rather confused way.

[21]The complainant contended that under the Bill, donations to third parties over $500 would need to be declared. This was a new rule and was significant, he said, but it was different to the expenditure rules. It was only when third party spending exceeded $5,000 that they needed to register.

[22]   In the complainant’s view, it was important for the public to know where influential sums of money were coming from (the source of donations). The fact that a third party was required to disclose its expenditure was of less moment, he said, and an item that purported to be about donations should have accurately discussed the proposed rules about donations. Mr Price wrote:

As for declarations, under the Bill everyone who engages in electoral advertising and wants to spend less than $5,000 has to fill out one of those (clause 53), listing the address and contact details of the promoter. This isn’t only about those who spend over $5,000. TVNZ does not appear to understand this.

Broadcaster’s Response to the Authority

[23]   TVNZ said that, as you would expect in a news story aimed at the average news viewer, some of the language and terms in the One News item were used in a more general way than the strictly defined terminology of the Bill. It stated that the press release of the Bill had created “a certain amount of confusion amongst all the parties involved and it is clear that even the Minister of Justice struggled with the closer definitions”.

[24]   The broadcaster attached copies of newspaper articles covering the Bill which, it said, supported the story as TVNZ reported it.

[25]   TVNZ maintained that there was a natural correction of any confusion of the issues as the Bill progressed through Parliament and more stories were reported. It must be remembered, TVNZ said, that the story occurred hours after the press release of the Bill and other stories had since screened on TVNZ about the Bill.

Complainant’s Final Comment

[26]   Noting TVNZ’s point about using general language, Mr Price agreed that a broadcaster should have used plain language to explain the effect of the Bill. However, he argued that he was not complaining about “some legal technicality”, it was saying that TVNZ fundamentally misrepresented important parts of the Bill.

[27]   Referring to the broadcaster’s argument that there was a “natural correction” process, Mr Price contended that the first story about an issue was often the one that made the most impact on viewers. He noted that if TVNZ had quickly corrected its errors, the he would not have pursued the complaint.

Broadcaster’s Final Comment

[28]   TVNZ maintained that the One News reporter had “reported the points of the Bill as described by the Government office responsible”. It disagreed that the first item was often the one that made the most impact, as “facts” often changed.

[29]   The broadcaster reiterated its view that the item was accurate “in terms of the information available when the story went out”. It wrote:

The Committee believes that the audience viewing the item (in the majority unaware of the definitions given in the Bill) would have understood the reporter's meaning in the item without any confusion.

Further submissions from the Complainant

[30]   Noting TVNZ’s argument that the reporter had “reported the points of the Bill as described by the Government office responsible”, Mr Price stated that this argument did not tally with the Government’s press release and question and answer documents. He provided copies of these to the Authority.

[31]   The complainant also disputed that the story was accurate at the time of the broadcast. He noted that the Bill, its explanatory note, and the Government’s question and answer paper were all available, and all contained accurate information.

Further submissions from the Broadcaster

[32]   TVNZ stated that, with the benefit of hindsight, the terminology used in the item could have been clearer. However, it contended that this was not a breach of the standards. TVNZ wrote that the meaning would have been clear to the average viewer who understood the terms in a more general way than the definitions given in the Bill.

Authority's Determination

[33]   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.

[34]   The complainant has alleged that two statements in the One News item were inaccurate. Having read the relevant portions of the Electoral Finance Bill which was released on 23 July 2007, the Authority turns to consider each statement below.

“New rules for election spending will mean big donations to political parties’ campaigns will no longer be kept secret.”

[35]   The Authority considers that the above statement would have indicated to viewers that new provisions in the Bill were going to make it impossible for people to make large donations to political parties anonymously. It agrees with the complainant that the statement was inaccurate for the following reasons.

[36]   First, the Authority notes that Part 2 Subpart 3 of the Bill set out the rules for donations to political parties. It provided that donations over $10,000 had to be declared, but they could still remain anonymous. Clause 35 stated that the financial agent of a party must file a return setting out the name and address of the donor, the amount and date of the donation. However, this requirement only applied if the party donation was notan anonymous donation. For anonymous donations, only the amount and date of the donation needed to be disclosed. In this respect, the Authority considers that the statement that “big donations to political parties’ campaigns will no longer be kept secret” was inaccurate and would have misled viewers as to the effect of the provisions in the Bill.

[37]   Second, the complainant has argued that the Bill did not introduce “new rules” about donations to political parties’ campaigns, because the Bill required no greater degree of disclosure of the amounts and identities of donors than the current law. The Authority has reviewed section 214G of the Electoral Act 1993 which outlines the current rules for donations to political parties. It agrees with the complainant that the Electoral Finance Bill did not change the rules about disclosing anonymous donations to political parties, and therefore it finds that it was inaccurate to describe the Bill as containing “new rules” in this respect.

[38]   For the reasons outlined above, the Authority finds that the statement was misleading and inaccurate, and breached Standard 5 (accuracy). It upholds this part of the complaint.

“Other secret donors would also be outed – donations over $5,000 would have to be declared.”

[39]   The Authority notes that the above statement was made in the following context:

Who can forget the election spending controversies of 2005, including the million dollar anti-Labour and anti-Green campaign by the Exclusive Brethren. If plans go ahead, third parties with a stake in the electoral race would be forced to register with the Electoral Commission. Other secret donors would also be outed – donations over $5,000 would have to be declared.

[40]   In the Authority’s view, the majority of viewers would have interpreted the sentence about “other secret donors” as applying to donors other than third parties like the Exclusive Brethren, who the reporter had just referred to. It agrees with the complainant that the statement was inaccurate because there was no requirement in the Bill to declare donations of $5,000. The Bill only provided that donations over $10,000 had to be declared by political parties.

[41]   Further, the Authority notes that even donations over $10,000 could still be made anonymously according to the Bill’s provisions. In these circumstances the Authority finds that it was inaccurate to state that “other secret donors would also be outed”.

[42]  The Authority considers that the statement was inaccurate and in breach of Standard 5 for the above reasons.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 23 July 2007 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[43]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to impose an order on this occasion. The Authority considers that its decision clarifies the correct position with respect to the relevant provisions of the Bill as it was on 23 July 2007. It also notes that the Bill has subsequently undergone further re-drafting, and has been subject to a substantial amount of media coverage. In these circumstances, the Authority is of the view that the publication of its decision is sufficient.

Bill of Rights

[44]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and demonstrably justifiable in a free and democratic society.

Signed for and on behalf of the Authority

Joanne Morris
Chair
12 February 2008

Appendix

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

1.            Steven Price’s formal complaint – 25 July 2007
2.           TVNZ’s decision on the formal complaint – 5 September 2007
3.           Mr Price’s referral to the Authority – 19 September 2007
4.           TVNZ’s response to the Authority – 9 November 2007
5.           Mr Price’s final comment – 26 November 2007
6.           TVNZ’s final comment – 4 December 2007
7.           Further submissions from Mr Price – 17 December 2007
8.           Further submissions from TVNZ – 20 December 2007