BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

A campaign clip for the Ban 1080 Party (an election programme for the purposes of the Election Programmes Code) was broadcast on 10 September 2017 on Māori Television. The clip featured a voiceover discussing the purported use and effects of sodium fluoroacetate (1080 poison) on New Zealand’s flora, fauna and waterways, accompanied by footage of animal carcasses and 1080 baits in water. The Authority did not uphold a complaint that the election programme was misleading and breached the Election Programmes Code and the Free-To-Air Television Code. The Authority found that the election programme did not contain statements of fact that were misleading, inaccurate, or indistinguishable from opinion. The claims made within the context of the broadcast were statements of political advocacy and opinion, made for the purpose of encouraging voters to vote for the Ban 1080 Party. The Authority emphasised the importance and value of political expression, particularly in the lead up to a general election, and in this context it did not consider the high threshold for finding a breach of standards was met.

Not Upheld: Accuracy, Distinguishing Factual Information from Opinion or Advocacy, Good Taste and Decency, Fairness, Balance

Introduction

[1]  A Ban 1080 Party campaign clip (an election programme for the purposes of the Election Programmes Code) featured footage of aerial drops of 1080 poison and footage of dead animals in water, with a voiceover making assertions about the aerial spray and impact of 1080. The advertisement concluded with an invitation to voters to vote for the Ban 1080 Party.

[2]  The full voiceover in the advertisement was as follows:

Almost 1 million hectares of New Zealand’s forests and waterways are aerially sprayed with 1080 poison bait every year. No attempt is made to avoid waterways and almost all forest streams are poisoned at the same rate as the land areas around them. Poisoned animal carcasses are left to decompose on land and in water. Reduce E.coli and stop the poisoning of our waterways. Give your vote to the Ban 1080 Party.

[3]  David Rameka complained that this election programme was inaccurate and made some ‘serious allegations’ about the application and impacts of 1080 on the environment, drawing particular attention to the statement implying that 1080 is applied directly into waterways.¹

[4]  The issues are whether the broadcast breached Standard E2 of the Election Programmes Code of Broadcasting Practice (Distinguishing Factual Information from Opinion or Advocacy) and also whether the broadcast breached the Good Taste and Decency, Balance, Accuracy and Fairness Standards of the Free-to-air Television Code of Broadcasting Practice (under Standard E1 – Election Programmes Subject to Other Codes). In our view Standard E2 and the Accuracy standard are the most applicable to the complaint, so we have focused our determination on these standards. We briefly address the remaining standards from paragraph [32] below.

[5]  The programme was broadcast on 10 September 2017 on Māori Television.

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

Overview – Election programmes

[7]  In an election year, the Election Programmes Code applies to election programmes which are broadcast for a political party or candidate during the election period. This year, the election period runs from 23 August to midnight on 22 September 2017. This is a complaint about an election programme broadcast for the Ban 1080 Party by Māori Television.

[8]  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.

[9]  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 detailed responses to our request for submissions.

Overview – The right to freedom of expression and political speech

[10]  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.

[11]  We may only interfere and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.² 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 be caused by the broadcast. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.

Was the broadcast inaccurate or misleading?

[12]  The accuracy standard (Standard 5) 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 objective of this standard is to protect audiences from receiving misinformation and thereby being misled.³

[13]  Guideline 5a to the accuracy standard states that it does not apply to statements that are clearly distinguishable as analysis, comment or opinion.

The parties’ submissions

[14]  Mr Rameka submitted:

• The statements made and visuals used in the advertisement were unqualified and unproven and needed to be fact-checked.
• The statement that ‘no attempt is made to avoid waterways’ is not factual and is misleading. Reputable organisations make it clear that careful and strict conditions are applied by organisations and landowners to where 1080 is applied near waterways.
• Care, protocols and restrictions are applied to major waterways. Regional councils impose specific consent conditions, including buffer zones, on aerial 1080 operations.
• ‘I have seen no evidence by Māori TV in their response that they have made any reasonable effort to fact-check the advertisement and whether or not the statements made are misleading.’
• These statements were presented as factual and were indistinguishable as the Party’s analysis or opinion.

[15]  Māori Television submitted:

• Nowhere in the advertisement were statements made advising that 1080 poison is put directly into waterways.
• Ban 1080’s advertisement was an opinion piece and was clearly distinguishable from fact.
• The purpose of the election programme was clearly to advocate a particular position, and to encourage voters to vote for the Ban 1080 Party.

[16]  The Ban 1080 Party submitted:

• Poisonous baits are dropped directly into all waterways, in most aerial operations. The few operations where some streams are buffered are poisoned upstream, where the tributaries begin.
• Council records from 2015 show that 1080 is dropped in waterways.
• Law changes in 2017 mean that aerials drops can now take place without any resource consent.
• It stands fully by the accuracy of the statements.

Our analysis

[17]  In order to determine if the accuracy standard applies to the Ban 1080 election programme, we must first consider whether the statements made in the advertisement were stated facts, or rather stated opinions. If the advertisement is found only to contain comment, analysis and opinion, then the accuracy standard will not apply (guideline 9a).

[18]  A fact is verifiable – something that can be proved right or wrong. An opinion is someone’s view; it is contestable and others may hold a different view. A consideration of whether a statement is an assertion of fact or an opinion is not always straightforward, and it depends heavily on context and presentation. It is crucial how a reasonable viewer or listener would perceive it.⁴

[19]  Other relevant factors in determining whether a statement is fact or opinion include:

• the language used in the statement
• the language used in the rest of the item
• the type of programme and the role or reputation of the person speaking
• the nature of the subject matter, for example if it is a controversial topic
• whether evidence or proof is provided
• whether the statement is attributed to someone.⁵

[20]  The Authority has previously recognised that election advertisements that promote a party’s policy promises are, by their very nature, ‘highly political, often hyperbolic vehicles for advocacy and influence’.⁶ This means that, in order to find a statement is an assertion of fact, the statement needs to be clearly identifiable as such by reference to the factors we have mentioned (that is, it is precise in its language and capable of being proven) – rather than simply expressing the opinions of a campaigning political party in a forum where advocacy, hyperbole and robust criticism of the government are the norm, and expected.

[21]  Taking the advertisement as a whole, and in the broader context of Ban 1080’s policy position, we consider that the second and third sentences of the advertisement which are the centre of this complaint, could reasonably be interpreted as the opinion of the Ban 1080 Party, rather than statements of fact. These sentences, while persuasive and advocatory, lacked the definitive precision or specific language required to be categorised as statements of fact that can be proved or disproved.

[22]  The dominant purpose and effect of the advertisement was to communicate Ban 1080’s political policy position in an attempt to secure votes in the upcoming election. Ban 1080 are known as a political organisation with the predominant focus of banning 1080 in New Zealand. The use of 1080 is a political and controversial issue in New Zealand as indicated by the contrasting opinions held by various political parties regarding the use of it in our forests, and specifically the use of aerial dropping as a 1080 distribution system.

[23]  It is clear from Ban 1080’s policy material and the information it provided to us that its strongly held view is that no attempt is made to avoid waterways during 1080 drops, and that waterways and animals are being poisoned at an unacceptable rate. We do not think viewers would be unduly surprised by the Party’s expression of these views or that they would be unexpected, given the Party’s mission statement. Having regard to the broader political context and the context of Ban 1080’s known political position, our view is that the statements made within the second and third sentences of the advertisement were statements of political opinion and advocacy, and not fact.

[24]  For these reasons, and taking into account the vital importance of free political expression in the lead up to the general election, we do not agree that the right to freedom of expression ought to be limited in this case. We therefore do not uphold this aspect of the complaint.

Did the election programme clearly distinguish factual information from opinion or advocacy?

[25]  Standard E2 of the Election Programmes Code states that an election programme may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy.

The parties’ submissions

[26]  Mr Rameka submitted:

• The advertisement made ‘clear, bold and absolute’ statements including:
  • ‘Almost 1 million hectares of New Zealand’s forests and waterways are aerially sprayed with 1080 poison bait every year’; and
  • ‘No attempt is made to avoid waterways and almost all forest streams are poisoned at the same rate as the land around them.’
• The statements made in the advertisements were presented as factual and were indistinguishable as the party’s analysis or opinion.
• People who are not informed on 1080 and its effects could be easily misinformed and take the statements made during the election programme to be fact.
• The advertisement did not state that it was the analysis, comment or opinion of the Ban 1080 Party.
• The advertisement was not clearly distinguishable as the party’s analysis or opinion.

[27]  Māori Television submitted that the advertisement was clearly advocating a point of view.

[28]  The Ban 1080 Party submitted:

• A significant amount of information regarding resource consents for aerial dropping of 1080 and the effect it can have, including information obtained from a Regional Council, dated from 2013-2016.
• What the Party says does not matter, ‘it’s what can be proven.’

Our analysis

[29]  The expression of opinion in advocacy advertising is a desirable and essential part of democratic society, but factual information should be clearly distinguishable from opinion or advocacy.⁷ The purpose of this standard is to ensure that political parties and broadcasters take care not to mislead viewers by presenting political assertions as statements of fact.

[30]  The nature of Standard E2 is such that we have asked ourselves the same questions as we did in relation to the free-to-air Accuracy standard. As discussed above in paragraphs [20] to [24], we have reached the view that the statements made in the second and third sentences of the advertisement, when placed within the context of Ban 1080’s political identity and known political position against the use of 1080 in New Zealand, could reasonably be interpreted as statements of political opinion or advocacy, designed to persuade voters to vote for the party. We accept that these were strong, persuasive statements, however this was consistent with the purpose of the advertisement, and the level of precision necessary to describe the statements as ‘factual’ was absent.

[31]  When watching the advertisement in its entirety, it would be obvious to viewers that by its very nature it was advocating for the Ban 1080 Party and its flagship policy. We therefore do not consider that the audience would have been misled in the manner envisaged by Standard E2, and we do not uphold this part of the complaint.

Did the broadcast breach any other broadcasting standards?

[32]  Mr Rameka also raised the good taste and decency, fairness and balance standards in his complaint. He did not make specific submissions on why he believed these standards were breached.

[33]  We have found that these standards were either not applicable, or not breached, for the reasons summarised below.

Good taste and decency

[34]  The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence.⁸ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁹

[35]  While the images of animal carcasses and 1080 pellets in the water may have disturbed some people, they were not unexpected in the context of an election programme regarding the use and effects of 1080 poison. The advertisement’s content did not reach the high threshold required for a finding that it threatened norms of good taste and decency, or constituted a breach of this standard, particularly taking into account the robust political environment leading up to the 2017 general election.

Fairness

[36]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. We do not consider that any individual or organisation was referred to, for the purposes of the standard.

[37]  In any event, as we have said, the election programme’s purpose was to advocate a position and encourage voters to vote for the Ban 1080 Party. Given the nature of the programme, Ban 1080 Party’s position as an opposition party, and the contrasting views between the Government and Ban 1080 on the issue of 1080 use, criticism of the use of 1080 and aerial dropping is expected and we do not consider the advertisement was unfair.

Balance

[38]  Under the Broadcasting Act 1989, there is a specific exclusion which means that the balance standard (Standard 8) does not apply to election programmes.¹⁰ This is because election programmes by their nature advocate for a particular party or candidate, and they are not expected to present alternative views. Therefore we are unable to consider the balance standard in relation to the Ban 1080 election programme.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
20 September 2017

 
Appendix

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

1     David Rameka’s election programme complaint – 12 September 2017
2     Māori Television’s response to the complaint – 13 September 2017
3     Ban 1080’s response to the complaint – 14 September 2017
4     Mr Rameka’s final comments – 15 September 2017
5     Ban 1080’s final comments – 15 September 2017

¹ See also Lupton and Māori Television Service, Decision No. 2017-071, regarding the same advertisement.

² See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.

³ Bush and Television New Zealand Ltd, Decision No. 2010-036

⁴ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62

⁵ As above 

⁶ See, for example, Allen and MediaWorks TV Ltd, Decision No. 2014-106

⁷ Allen and MediaWorks TV Ltd, Decision No. 2014-106

⁸ Turner and Television New Zealand Ltd, Decision No. 2008-112 

⁹ Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)

¹⁰ Sections 8(1) and 21(1)(b)