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An advertisement from the Progressive Green Party candidate for the Waitakere electorate, Mark Bellingham, was broadcast by MAI FM on 2 October. It said that if he was elected, the Party would get another Member into Parliament as a list MP.
Dr Grueber of the Green Society complained to MAI FM that the advertisement was incorrect. He said that to get a list MP as well as an electorate MP, required about 1.6% of the party vote. As the Progressive Greens had not obtained even half that percentage in any of the polls, he regarded the advertisement as misleading.
When MAI FM failed to respond within 48 hours, Dr Grueber referred the complaint to the Broadcasting Standards Authority under s.(1)(ba) of the Broadcasting Act 1989.
MAI FM advised the Authority that, on receipt of the Green Society’s complaint, the advertisement had been revised.
For the reasons below, the Authority upholds the complaint.
The members of the Authority have listened to an audio tape of the advertisement complained about and have read the correspondence (summarised in the Appendix). As is its practice, the Authority determines the complaint without a formal hearing.
An advertisement for Mark Bellingham, the Progressive Green Party candidate for the Waitakere electorate, was broadcast by MAI FM on Wednesday 2 October 1996.
Dr Hans Grueber of the Green Society complained to MAI FM that the broadcast was misleading. It breached the standards, he wrote, as it said that if Mark Bellingham was elected as an electorate MP, then he would be joined in Parliament by a Progressive Green list candidate. Dr Grueber explained why he considered the advertisement to be factually incorrect:
To get a second MP on top of an electorate MP a party needs to get around 1.6% of the party vote. The Progressive Greens have so far not featured in the polls anywhere near even half that number. There is in fact virtually no chance that the Progressives will get an extra List MP even in the unlikely event that they would win Waitakere.
As the broadcaster did not respond to the complaint within 48 hours, on the Society’s behalf Dr Grueber referred it to the Authority.
MAI FM advised the Authority that, on receipt of the complaint, the advertisement had been revised to take into account the point made in the complaint. Only the revised version, it stated, had been broadcast since the complaint was received on 3 October. It provided the Authority with a transcript of each version broadcast, and they both contained the point that should Mark Bellingham be elected, it would probably result in the success of a Progressive Green list candidate.
MAI FM also supplied the Authority with an audio tape of each advertisement. Whereas the revised version did contain the word ‘probably’, it was not included in the version broadcast on 2 October about which the Green Society complained.
The Authority considers that in view of point made in the complaint, in view of the audio tape, and in view of MAI FM’s report that it revised the advertisement on receipt of the complaint from the Green Society, that the transcript it received of the first version was incorrect when it included the word 'probably'. The Authority deals with the complaint on the basis that the advertisement broadcast on 2 October stated that the election of Mark Bellingham as an electorate MP would mean that a Progressive Green Party list member would also get into Parliament.
The Authority notes the concern expressed by the Electoral Commission and politicians, among others, that references to MMP must acknowledge – if not explain – that there are important exceptions and intricacies in practice. The Authority concludes that the unqualified statement complained about in the advertisement broadcast on 2 October was misleading. It considers that it breached the requirement in rule 2 of the Advertising Code of Ethics prepared by the Advertising Standards Authority. It reads:
2. Truthful presentation – Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representations, abuses the trust of the consumer or exploits his/her lack of experience or knowledge.
For the above reasons, the Authority upholds the complaint that the broadcast by MAI FM Ltd on 2 October 1996 of an election advertisement for the Progressive Green Party breached the standards.
Having upheld a complaint, the Authority may impose an order under s.13(1) of the Act. As the advertisement was revised upon receipt of the complaint, the Authority does not consider that it is appropriate to impose an order. Whereas the addition of the word ‘possibly’ – rather than ‘probably’ – might have more accurately summed up the possible outcome, given the acceptance of robust opinion in political advertising in rule 11 of the ASA’s code, the Authority considers that the revision was sufficient to comply with the standards. Rule 11 provides:
11 Advocacy Advertising – Expression of opinion in advocacy advertising is an essential and desirable part of the functioning of a democratic society. Therefore such opinions may be robust. However, opinion should be clearly distinguishable from factual information. The identity of an advertiser in matters of public interest or political issue should be clear.
Signed for and on behalf of the Authority
9 October 1996
Green Society’s Complaint to MAI FM Ltd- 3 October 1996
The Green Society’s Chairperson, Dr Hans Grueber, complained to MAI FM Ltd about an election advertisement broadcast on the afternoon of 2 October 1996 on behalf of the Progressive Green Party.
The advertisement, Dr Grueber wrote, was factually incorrect when it advised voters in the Waitakere electorate that if they voted Mark Bellingham, the Progressive Green candidate, into Parliament, they would not only get him into Parliament but also a list candidate from the Progressive Green Party.
To get a second MP, Dr Grueber continued, a party needed to secure about 1.6% of the party vote. As the Progressive Green Party had not registered even half that amount in any of the polls, Dr Grueber said that it was most unlikely to win an extra list MP even if it won in Waitakere. He wrote:
The ad is misleading and breaches the requirements of the laws of advertising.
Green Society’s Referral to the Broadcasting Standards Authority - 7 October 1996
As MAI FM did not respond to the complaint within 48 hours, on behalf of the Green Society Dr Grueber referred the complaint to the Broadcasting Standards Authority under s.8(1)(ba) of the Broadcasting Act 1989.
MAI FM’s Response to the Authority - 8 October 1996
MAI FM advised the Authority that the advertisement complained about was produced on 1 October and was broadcast for one day only - on 2 October.
After the formal complaint was received from the Green Society, on 3 October, the advertisement was revised and a second version was produced.
MAI FM wrote:
We reject Mr Hans Grueber’s criticism towards the Progressive Green Party ad in question, on the basis that it is impossible to determine what parties will receive what votes before election day. Therefore he has nothing substantial upon which to base a formal complaint.
The advertisement broadcast on 2 October, it advised the Authority contained the following comment:
But there’s another .... even bigger opportunity here for Waitakere voters. Under MMP if you elect Mark Bellingham to be your MP .... the Progressive Green Party gets into parliament .... and probably with another list member. That means a new coalition partner to ensure the continuation of responsible economic government.
With regard to the possibility of a list MP, the revised advertisement said:
If you vote Mark Bellingham in your electorate, the Progressive Greens get into Parliament, and with probably one more list MP .... you’ve created a whole new coalition partner in the next government.
Green Society’s Final Comment - 8 October 1996
On the Society’s behalf, Dr Grueber said he could not recall the use of the word ‘probably’ which, he noted, might mean the advertisement complied with the standards. He wrote:
The impression given was clearly that voting for Bellingham would give the voter an extra MP. If MAI FM would have responded to my complaint I might not have bothered you.
The revised advertisement also stated that 15,000 Waitakere voters voted for Mr Bellingham onto the Regional Council which, Dr Grueber said was incorrect and misleading as there was no evidence that the 15,000 votes received for Mr Bellingham were cast by Waitakere voters. He concluded:
The Progressives try to create a false picture of an overwhelming support for Bellingham in the Waitakere Parliamentary Electorate which does not and has not existed as claimed.
On these grounds we would like you to uphold our formal complaint. It is not point approaching the broadcaster first as they don’t seem prepared to reply.
MAI FM’s Response - 9 October 1996
Disputing the Green Society’s allegation that it had not been prepared to respond, MAI FM said the advertisement had been changed immediately on receipt of the complaint.