Curtis and Television New Zealand Ltd - 2017-065 (4 September 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Brian Curtis
ProgrammeNational Party Election Programme
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A campaign clip for the National Party (an election programme for the purposes of the Election Programmes Code) was broadcast on TVNZ 1 on 28 August 2017. The clip featured a group dressed in blue running through New Zealand landscapes, who passed another group of four wearing red, green and black shirts with their legs tied together and struggling. The Authority did not uphold a complaint that the election programme breached the Election Programmes Code of Broadcasting Practice and was misleading on the grounds it implied that National was only a single party in Government. The election programme did not imitate any existing programme, format or identifiable personality as envisaged by the misleading programmes standard in the Election Programmes Code. In any event, the election programme was clearly promoting a party vote for the National Party and viewers understand that election programmes by their nature are authorial advocacy and designed to promote the party’s vision, should it be elected. In these circumstances, the Authority did not consider viewers would have been misled. The Authority also emphasised the importance and value of political expression, particularly in the lead up to a general election.
Not Upheld: Misleading Programmes
 A campaign clip for the National Party (an election programme for the purposes of the Election Programmes Code) was broadcast on TVNZ 1 on 28 August 2017. The clip featured a group of people dressed in blue running through New Zealand landscapes, as a voiceover said:
Success doesn’t happen by chance. Together, we’ve got our economy working – creating thousands of new jobs, putting more money into families’ budgets. National will deliver a better future for all New Zealanders, for young and old, for hard-working families, and for those who need our support.
 The group then passed a group of four people wearing red, green and black shirts with their legs tied together and struggling, as the voiceover said, ‘The choice is simple: keep New Zealand moving forward, or risk it all on who knows what’.
 Brian Curtis complained that this election programme was misleading and implied that the National Party was only a single party in Government, but since the Mixed Member Proportional (MMP) voting system had been ‘in vogue’, there had been more than one party making up Government.
 The issue raised in Mr Curtis’ complaint is whether the broadcast breached the misleading programmes standard in the Election Programmes Code of Broadcasting Practice.
 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
 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 National Party by TVNZ.
 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.
 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 response to our request for submissions.
Was the election programme misleading?
 Standard E4 of the Election Programmes Code states that an election programme may not imitate an existing programme, format or identifiable personality in a manner which is likely to mislead.
The parties’ submissions
 Mr Curtis submitted:
- This was the second election season where the National Party had intimated they were ‘pure’ in the number of parties that have or will make up their Government.
- Since MMP had been ‘in vogue’, there had been more than one party making up Government. The 2011–2014 and 2015–2017 Governments comprised four parties, therefore the election programme had no credibility when looking at National’s current situation.
- This election programme implied that National was only a single party in Government.
 The National Party submitted:
- Under MMP, every party, including the National Party, tries to maximise its vote.
- The election programme showed the National Party is a unified, positive, forward-moving team.
- The programme did not talk about the past or the status quo, but was rather reflective of the Party’s desired result for the 2017 General Election. There was no suggestion that National is the only party, or about what other parties may or may not have to work with, as that is hypothetical. The programme was therefore not imitating an existing situation but was hypothetically sketching the ideal future structure of Government.
- Adding runners in other coloured shirts would be more likely to mislead audiences, as it is not certain which parties would be governing with National, if any.
- National is simply saying that they are the best team and they are campaigning to maximise the party vote for National.
 TVNZ submitted:
- The National Party election programme did not imitate an existing programme, format or identifiable personality in a manner which was likely to mislead.
- The programme was clearly represented as National Party advertising and carried the appropriate authorisation tag at the end. Viewers would therefore not have been misled in this regard.
- In any event, in a democracy such as New Zealand, freedom of expression rights are important and must be respected. Political parties must be able to advocate for their respective viewpoints during the election period and there must be a robust process for these different viewpoints to be heard.
- TVNZ disagreed that the programme was misleading by implying that National is only a single party in Government. The message of the programme promoted a National Party vote, and implied that a many-party coalition made up of opposition parties would be unworkable.
- Commentators were clear about what the programme was saying and it had already been satirised.1
 The starting point in our consideration of any election programme complaint is the right to freedom of expression, and specifically the right to 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.
 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. In this case, Mr Curtis has submitted that the National Party election programme would have misled audiences.
 The purpose of the misleading programmes standard is to prevent audiences being misled, by ensuring they are aware that they are watching election advertising which promotes a particular party or candidate.
 In this case, we are satisfied that this election programme was clearly a political party advertisement advocating for the National Party, and would not have misled viewers in the manner envisaged by the standard. The programme did not imitate any existing programmes or formats and did not feature any identifiable personality. The conclusion of the programme clearly featured a ‘Party Vote National’ banner, as well as the required authorisation for the programme. We therefore find no breach of Standard E4.
 Nevertheless, for completeness, we record our view that we do not consider viewers would have been misled by the election programme in the manner alleged by the complainant. This election programme promoted the National Party’s message that it is a ‘unified, positive, and forward-moving team’. While the runners in blue did not feature coalition party members, we consider it would have been clear to viewers that political parties will seek to promote their own party, and to earn viewers’ party vote, in any campaign material.
 The election programme alluded to a hypothetical potential alternative coalition government which, in the National Party’s view, would be ‘disunited, chaotic and… take New Zealand backwards’. This did not imply that the National Party would only form a single-party Government, but rather encouraged audiences to give their party vote to National as their preferred party.
 For these reasons, and taking into account the public interest and the robust political environment 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 the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
4 September 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Brian Curtis’ election programme complaint – 29 August 2017
2 The National Party’s response to the complaint – 30 August 2017
3 TVNZ’s response to the complaint – 30 August 2017
4 The National Party’s further comments – 30 August 2017
5 Mr Curtis’ further comments – 30 August 2017
1 See, for example: National's campaign ad attacks Winston Peters despite needing him to govern (Newshub, 26 August 2017); The NZ National Party's teal-clothed runners ad, explained (The Spinoff, 28 August 2017); A highly unscientific comparison of Labour and National's TV ads (The Wireless, 29 August 2017)
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