BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Te Raumawhitu Kupenga declared a conflict of interest and did not participate in the determination of this complaint.

Complaints under section 8(1) of the Broadcasting Act 1989
Labour Party Asset Sales Advertisement – contained comment, “vote National and kiss your assets goodbye” – allegedly inaccurate

Findings
Standard E1 (election programmes subject to other Codes) – Standard 5 (accuracy) – advertisement was clearly Labour’s analysis and opinion of National’s policy on asset sales – guideline 5a to Standard exempts analysis and opinion from standards of accuracy – viewers would have understood that the advertisement was encouraging people to vote for Labour – freedom of expression crucial to democracy and political debate – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An advertisement for the New Zealand Labour Party was broadcast on TV One on 14 November 2011 at 7am, and on 24 November 2011 at 7.25am. The advertisement contained the following voiceover:

If you think power prices are high now, wait until we don’t own a damn thing. You have a choice: vote National and kiss your assets goodbye, or vote to own your future.

[2]  Bob Radley made a formal complaint alleging that the statement “vote National and kiss your assets goodbye”, and the suggestion that electricity prices would rise in the absence of government control, were inaccurate and misleading.

[3]  Fiona Angus made a formal complaint alleging that the advertisement was “totally misleading” because it did not state that only 49 percent of the assets would be sold and “these words indicate that we will no longer have these assets when in fact we will still retain 51 percent ownership”.

[4]  The issue is whether the advertisement breached Standard E1 (election programmes subject to other Codes) of the Election Programmes Code, and Standard 5 (accuracy) of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the advertisement inaccurate or misleading?

[6]  At the outset, we note that Standard E1 of the Election Programmes Code expressly acknowledges that election programmes, including political party advertisements, are broadcast in a robust political arena, and should be viewed and interpreted accordingly. It states:

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.

[7]  In our view, the right to free political expression is one of the founding principles of democracy and, especially during a critical time for the democratic process in the build-up to a general election, limitations upon that right must be imposed only after careful consideration. In accordance with section 5 of the New Zealand Bill of Rights Act 1990, the Authority can only limit the right to freedom of expression contained in section 14 of that Act where such a limitation is reasonable and demonstrably justified in a free and democratic society. A high value is placed on political speech, meaning that a correspondingly high threshold must be reached before the Authority would intervene and uphold a complaint as a breach of the accuracy standard.

[8]  Standard 5 (accuracy) of the Free-to-Air Television Code states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The Authority has previously considered the accuracy standard in relation to election advertisements.¹

[9]  Mr Radley argued that the statement “vote National and kiss your assets goodbye”, and the suggestion that electricity prices will rise in the absence of government control, were inaccurate and misleading. He contended that:

The present government has stated that any sales will only be of less than 51 percent of government’s share ownership. It is fundamental commercial law that 51 percent is an unassailable controlling interest. Stakeholders of less than 51 percent do not have power of control of any commercial venture.

[10]  Ms Angus made similar arguments, and considered that the advertisement should have made it clear that only 49 percent of assets would be sold.

[11]  We note that in the lead-up to the general election, the Labour Party had clearly signalled that the National Party’s proposed sale of assets was a main focus of its election campaign. In our view, this advertisement clearly continued that theme, and presented Labour’s views on, and analysis of, National’s policy on asset sales and its implications, with the price of electricity as one example.

[12]  Guideline 5a to Standard 5 (accuracy) states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. In our view, reasonable viewers would have understood that, in this advertisement, Labour was promoting its own policies, and would not have interpreted the comment literally, as meaning you could “kiss all of your assets goodbye”. This was clearly not a statement of fact to which the accuracy standard applied. It was transparently an encouragement for viewers to vote for the Labour Party on the basis of its opposition to the proposed asset sales, and was well within the limits of acceptability in the context of a robust election campaign, and political expression and debate.

[13]  We also agree with the broadcaster that the issue of asset sales was covered extensively leading up to the election, so viewers could reasonably be expected to be aware of some of the details behind National’s policy, including that 51 percent of asset ownership would be retained. Accordingly, even had the accuracy standard applied, we do not consider that viewers would have been misled.

[14]  We note that Ms Angus argued that the advertisement was misleading and would not be tolerated in commercial business, or when considered in terms of the Fair Trading Act. As outlined above, a high value is placed on political speech, especially during the lead-up to an election, and in our view election campaigning cannot be viewed in the same way as statements made in a commercial, trading or real estate context.

[15]  For these reasons, and taking into account the principles outlined above at paragraphs [6] and [7], we consider that upholding the complaint would unjustifiably restrict the right of the Labour Party and of the broadcaster to free political expression. Accordingly, we decline to uphold the complaint that the advertisement breached Standard E1 and Standard 5 (accuracy).

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 November 2011

Appendix

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

Bob Radley’s complaint

1                  Bob Radley’s formal complaint – 14 November 2011

2                 TVNZ’s response to the complaint – 15 November 2011

3                 The Labour Party’s response to the complaint – 15 November 2011

Fiona Angus’ complaint

1                  Fiona Angus’ formal complaint – 24 November 2011

2                 TVNZ’s response to the complaint – 24 November 2011

3                 The Labour Party’s response to the complaint – 24 November 2011

4                 Ms Angus’ further submissions – 24 November 2011

¹See, for example, Wood and SKY, Decision No. 2011-135, Spencer and TVNZ, Decision No. 2002-088, and The Māori Party and Raukawa FM, Decision No. 2005-103.