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 concerning an election programme for the National Party. The complainant considered the programme’s reference to delivering tax relief was misleading as the Party’s policy of ‘tax cuts for the majority of families…[has] been proven to be incorrect by independent economists’. The Authority considered viewers would have understood the statement to be advocacy or opinion rather than fact, encouraging the public to vote for National, and the relevant statement reflected National Party policy; it is not a quantified promise, a guarantee, or a statement of fact.

Not Upheld: E1: Election Programmes Subject to Other Standards (Accuracy), E2: Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy

The broadcast

[1]  A National Party election programme was broadcast on 6 October 2023 on Sky Open. The broadcast stated:

This election, only a party vote for National can change the government, strengthen our economy, lower your cost of living, and deliver you tax relief. Party vote National, and let’s get our country back on track.

[2]  The programme was voiced by National Party Leader Christopher Luxon.

Overview – Election Programmes

[3]  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 10 September 2023 to midnight on 13 October 2023. This is a complaint about an election programme broadcast for the National Party on Sky Open.

[4]  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.

[5] 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 concise responses to our request for submissions.

The parties’ submissions

The complaint

[6]  Simon Whitbread complained the programme was ‘promoting tax cuts for the majority of families’ and this has ‘been proven to be incorrect by independent economists’. The complainant noted the National party ‘admitted that their own numbers don’t stack up and only limited (around 3000 households around the country)’ families would benefit.

[7]  The complainant considered this ‘outright false information’ should not be broadcast during the regulated election period.

The National Party’s response

[8]  The National Party responded to the complaint under standard E2 (noting the complainant did not raise any standard said to be breached in the Code of Broadcasting Standards). After referring to guideline E2b to the standard, it did not consider the programme was ‘misleading or that it breaches standard E2. It very much falls into the category of opinion’.

Sky’s response

[9]  Sky Network Television Ltd referred to the wording of the standard, which stated that ‘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.’ It considered ‘political parties must be able to present their respective position to the electorate throughout the election period.’ Sky noted:

• ‘In this case the National Party advertisement states a vote for National will deliver tax relief. The advertisement does not state that it will deliver tax cuts for the majority of families, as stated by the complainant.’
• ‘The advertisement represents the National Party’s view and was a recognisable piece of advocacy and viewers would be able to interpret this advertisement as a political campaign advertisement.’

Jurisdiction – scope of complaint

[10]  The complainant raised standard E1: Election Programmes Subject to Other Code in making their complaint. However, they did not state which standards in the Code of Broadcasting Standards in New Zealand they considered were breached. Given the complainant’s concerns about the ‘outright false information’ broadcast, we have considered the complaint under the accuracy standard.

[11]  While the complainant did not explicitly rely on standard E2 – Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy,¹ we consider this standard also relevant to the complainant’s concerns. On this basis, we interpret the complaint as one made under standard E2 also.² We note the National Party responded to the complaint under this standard.

The standards

[12]  Under standard E1 (election programmes subject to other codes) all other standards in the Code of Broadcasting Standards in New Zealand, except for the balance standard (Standard 5) apply.³ The accuracy standard is relevant in assessing this complaint.⁴ The purpose of the accuracy standard is to protect the public from being significantly misinformed.⁵ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[13]  Standard E2 (Election Programme Advocacy) states election programmes may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy. Factual information must be able to be substantiated.⁶ The purpose of the standard is to ensure political parties and broadcasters take care not to mislead viewers by presenting political assertions as statements of fact.⁷

Our analysis

Overview – the right to freedom of expression and political speech

[14]  We have watched the broadcast and read the correspondence listed in the Appendix.

[15]  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.⁸

[16]  Given the high value placed on political speech in the lead up to an election, a correspondingly high threshold must be reached to conclude an election programme has breached the Election Programmes Code (ie the harm caused or potentially caused by the programme must be great).⁹

Standard E1: Other standards — Accuracy

[17]  Standard E1 of the Election Programmes Code 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.

[18]  The standard also has specific guidance when considering the accuracy standard in relation to election programmes, stating:¹⁰

Promises as to future conduct (eg election promises), being neither statements of fact nor opinion, are not capable of being assessed against the accuracy standard. These statements should be considered under standard E2. However, factual statements on which a future promise is based, may be subject to the accuracy standard.

[19]  The Authority has previously considered the accuracy standard in relation to election advertisements.¹¹ However, election advertisements in which parties are promoting their own policies, by their very nature, are not ‘factual’. They are highly political, often hyperbolic vehicles for advocacy and influence.

[20]  In this instance, Opposition Leader Luxon stated ‘only a party vote for National can… deliver you tax relief.’ This is a National Party policy; it is not a quantified promise, a guarantee, or a statement of fact. Therefore, we consider this concern more appropriately addressed under standard E2, below.

[21]  In any event, we consider viewers would have recognised the statement in the advertisement as robust political expression, typical of pre-election advertising, advocating for National’s policies and encouraging the public to vote for National. Viewers are able to form their own views about any given policy, with reference to considerable media coverage and publicly available information including for example the sources referred to in the complaint.¹²

Standard E2: Election programme Advocacy

[22]  The expression of opinion in advocacy advertising is a desirable and essential part of democratic society. Indeed, Guideline E2b to the standard acknowledges, as we have noted above, that election programmes promoting party or candidate policy promises are, by their very nature, highly political, often hyperbolic vehicles for advocacy, rather than factual information (and are generally readily distinguishable as such).¹³

[23]  Compliance against this standard is to be assessed on a statement by statement basis (and then in the context of the programme as a whole).¹⁴ In this instance, the complainant is concerned with the programme’s reference to delivering tax relief given later concessions by the National Party that a limited number of families would receive the full benefit of the tax relief. The question for us under this standard is whether, in the context, the statement ‘‘only a party vote for National can… deliver you tax relief.’ constitutes advocacy or opinion presented as fact which is, in turn, likely to mislead viewers.

[24]  The assessment of whether a statement is clearly distinguishable as factual information or opinion or advocacy may include consideration of:¹⁵

• the context and presentation (including tone) of the programme
• the precision (exact wording) of the statement
• whether the statement can be proven right or wrong (a fact) or is contestable or someone’s view (opinion or advocacy)
• how a reasonable viewer would perceive it
• the political identity, reputation and policies of the party/candidate promoted in the programme
• whether the statement can reasonably be interpreted as an expression of political opinion or advocacy, designed to persuade voters to vote for a party/candidate
• whether the particular point was the subject of substantial other coverage (eg on television, radio or other platforms) through which viewers or listeners could reasonably be expected to be aware of alternative views and opinions to consider in making their voting decision.

[25]  Having regard to these factors as they apply in this case, we consider the relevant statement was clearly distinguishable as advocacy or opinion rather than fact. In reaching this finding, we consider the following particularly relevant:

• The language used was exaggerated (“only a party vote for National can change the government”).
• The statement lacked precision, referring to delivering ‘tax relief’ without noting any particular quantum, or method, in providing that relief.
• The context and tone of the broadcast, characterised by political advocacy, clearly sought to secure votes by encouraging people to vote for National in order to “get our country back on track”.

[26]  In the circumstances, we consider viewers were not likely to be misled and would have understood the particular statement (and the broadcast overall) as a form of robust political expression, typical of pre-election advertising, advocating for National’s policies and encouraging the public to vote for National.

[27]  For completeness, we reiterate our finding the statement reflected National Party policy; it is not a quantified promise, a guarantee, or a statement of fact. It is not the Authority’s role to analyse the likely implications or feasibility of any Party’s policies. Viewers are able to form their own views about any given policy with reference to the broad range of media coverage and other publicly available information.

[28]  For these reasons, and taking into account the public interest in election programmes and party policies, and the robust political environment in the lead up to the general election, we do not agree the right to freedom of expression ought to be limited in this case.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
11 October 2023    

Appendix

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

1  Whitbread’s formal complaint to the Authority – 6 October 2023

2  The National Party’s response to complaint – 9 October 2023

3  Sky’s response to the complaint – 9 October 2023

¹ Standard E2, Election Programmes Code 2023
² The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint, as per Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62].
³ Standard E1, Election Programmes Code 2023
⁴ Standard 6, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁶ Standard E2, Election Programmes Code 2023 
⁷ See Brown and MediaWorks TV Ltd, Decision No. 2017-074 at [15]
⁸ Introduction, Election Programmes Code 2023 at page 1
⁹ Guideline G1a
¹⁰ Guideline E1b
¹¹ Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [8] citing Lloyd and TVWorks Ltd, Decision No. 2011-152 and Wood and SKY Network Television Ltd, Decision No. 2011-135.
¹² See also “National admits only 3000 families could get its full $250 tax cut’ 1 News (online ed, 5 October 2023); Jenna Lynch “Election 2023: National admits it knew all along its maximum tax cuts would only go to 3000 households” Newshub (online ed, 5 October 2023); Susan Edmunds “'Scam' vs 'gutter politics': Labour, National trade blows over tax cuts” Stuff (5 October 2023)
¹³ Guideline E2b, and see Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [8]
¹⁴ Guideline E2c
¹⁵ Guideline E2d