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.

Complaint under section 8(1) of the Broadcasting Act 1989
New Zealand First Election Advertisement – stated that “only Winston and New Zealand First can save the foreshore and seabed for our family” – allegedly inaccurate

Findings
Standard E1 (election programmes subject to other Codes) – Standard 5 (accuracy) – statement was clearly opinion and promotion of New Zealand First policy – guideline 5a to Standard 5 exempts opinion from standards of accuracy – election programmes broadcast in robust political environment and listeners would have interpreted the advertisement accordingly – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An advertisement for New Zealand First was broadcast on Newstalk ZB on 21 November 2011 at approximately 10.40pm. The advertisement stated:

Child’s voice:        My mum and dad are voting New Zealand First because only Winston
                           and New Zealand First can save the foreshore and seabed for our family.

Winston Peters:    For a fair go, party vote New Zealand First.

[2]  Kevin Stitt of the Conservative Party made a formal complaint alleging that the advertisement stated that “New Zealand First are the only party that is going to do anything about the Foreshore and Seabed Act”, which was inaccurate. He maintained that “repealing of the Foreshore and Seabed Act is a major policy platform of the Conservative Party of New Zealand”.

[3]  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 Radio Code of Broadcasting Practice.

[4]  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?

[5]  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.

[6]  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.

[7]  Standard 5 (accuracy) of the Radio 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

[8]  Mr Stitt argued that the advertisement was inaccurate because it stated that “New Zealand First are the only party that is going to do anything about the Foreshore and Seabed Act”, when this was not the case. The Radio Network (TRN) considered that the statement was clearly opinion, suggesting that “while other political parties may have a similar policy, New Zealand First believes only Winston Peters and New Zealand First can enact it”. New Zealand First maintained that the statement in the advertisement was “entirely reasonable” given the party’s “record and intentions” with regard to the foreshore and seabed, and gave specific examples of its involvement in the issue.

[9]  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, the statement that “only Winston and New Zealand First can save the foreshore and seabed for our family” was clearly New Zealand First’s opinion, and not a statement of fact to which the accuracy standard applied. We consider that reasonable listeners would have understood that New Zealand First was promoting its own policies leading up to the election, and would not have interpreted the comment literally, as a statement of fact that New Zealand First was the sole party with any policy relating to the foreshore and seabed. The comment was transparently an encouragement for viewers to vote for New Zealand First on the basis of its policy relating to the foreshore and seabed, and well within the limits of acceptability in a robust election campaign, and political expression and debate.

[10]  Taking into account the principles outlined above in paragraphs [5] and [6], 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:

1                  Kevin Stitt’s formal complaint – 22 November 2011

2                 TRN’s response to the complaint – 22 November 2011

3                 New Zealand First’s response to the complaint – 23 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.