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 misled the public by giving ‘the impression’ the National Party’s policies would support public services, which was in ‘direct contradiction to their proposed policies’. The Authority considered listeners would have understood the programme as a typical advertisement for the Party, encouraging the public to vote for National. By their nature, such programmes are not factual and are often hyperbolic vehicles for advocacy. Further, it is not the Authority’s role to analyse the likely implications of any Party’s policies (which are not quantified promises, guarantees, or statements of fact), and listeners are able to form their own views about any given policy with reference to the broad range of available media coverage and other publicly available information.

Not Upheld: Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy

The broadcast

[1]  A National Party election programme was broadcast on 11 September 2023 on ZM. The broadcast stated:

New Zealand is in recession and Kiwis are struggling. National will rebuild the economy to get it working for you. We'll stop the wasteful spending that you're paying for, deliver the skills, infrastructure and technology New Zealand needs to grow and reward hard work with tax relief. A working economy means higher wages, a lower cost of living, and the ability to afford the quality public services we all rely on. Let's get our country back on track.

Overview – Election Programmes

[2]  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 ZM.

[3]  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.

[4]  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

[5]  Lara East complained the broadcast breached standard E2 (election programme advocacy – distinguishing factual information from opinion or advocacy) of the Election programmes Code of Broadcasting Practice in New Zealand as it ‘gives the impression that National will support public services, which is in direct contradiction to their proposed policies.’

[6]  The complainant referred to concerns expressed by the Public Service Association about the impact the National Party’s policies will have on public services provided by various public agencies, including ‘MSD, MPI, MBIE, Customs, DOC, and Environment.’

[7]  In response to the National Party’s and NZME’s comments, the complainant considered the programme would not be ‘readily distinguishable’ as opinion for a number of people, referring to the PSA’s concerns.

The National Party’s response

[8]  The National Party considered the complaint to be ‘factually incorrect’, responding:

The National Party is not cutting public services and has in fact publicly committed to investing in public services, for example increasing the health and education budgets every year that we are in office.

NZME’s response

[9]  NZME Radio Ltd did not consider the programme misleading or in breach of the applicable standard, noting:

• ‘Guideline E2b recognises that “Election advertisements that promote a party’s or candidate’s 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).”’
• With reference to Guideline E2d (concerning the assessment of whether a statement is clearly distinguishable as factual information or opinion or advocacy), NZME considered the ‘statement complained of, that is “A working economy means higher wages, a lower cost of living, and the ability to afford the quality public services we all rely on”, falls into the category of opinion rather than factual information.’
• ‘The focus of the advertisement is on the National’s Party commitment to reduce what it perceives to be wasteful [public] spending and an indication that public spending will be contingent on New Zealand’s [economy] being “rebuilt”.’

The standard

[10]  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.¹

[11]  The purpose of the standard is to ensure political parties and broadcasters take care not to mislead listeners by presenting political assertions as statements of fact.²

Our analysis

Overview – the right to freedom of expression and political speech

[12]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[13]  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.³

[14]  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).⁴

Standard E2: Election programme Advocacy

[15]  The expression of opinion in advocacy advertising is a desirable and essential part of democratic society. Indeed, the guidance to the standard acknowledges 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).⁵

[16]  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).⁶ In this instance, the complainant is concerned with the programme’s reference to ‘quality public services’ given criticisms (such as by the PSA) of the implications of the National Party’s policies for public services. The question for us under this standard is whether, in the context, the statement ‘A working economy means…the ability to afford the quality public services we all rely on’ constitutes advocacy or opinion presented as fact which is, in turn, likely to mislead listeners.

[17]  The assessment of whether a statement is clearly distinguishable as factual information or opinion or advocacy may include consideration of:⁷

• 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 listener 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.

[18]  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 context and tone of the broadcast, characterised by political advocacy, clearly sought to secure votes by ‘selling’ the National Party’s plans to ‘rebuild’ the economy.
• The majority of the broadcast did not contain assertions of fact. While the statement ‘New Zealand is in recession’ is verifiable (the first statement of the broadcast), and a statement of fact, the remainder of the broadcast used language more consistent with opinion and hyperbole as typically used in the promotion of party policies. For example:
  
  (a)  We’ll get the economy ‘working for you’.
  (b)  We’ll stop ‘wasteful spending’.
  (c)  We’ll deliver what ‘New Zealand needs to grow’.
• The broadcast suggested that the National Party’s ability to deliver a working economy would lead to ‘higher wages’, a lower cost of living’, and ‘the ability to afford the quality public services we all rely on’. Listeners would have understood these policies as the Party’s perception of what a working economy looks like. These are not quantified promises, guarantees, or statements of fact.⁸ In addition, it is in the nature of party policies that one person’s perception of what a policy may deliver is likely to be different to another’s.
• No specific public services are referred to and individual’s perceptions of what constitutes ‘quality’ public services are also likely to differ.

[19]  In the circumstances, we consider listeners 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.

[20]  While this conclusion may not satisfy the complainant’s concerns, we consider those concerns relate to the complainant’s views regarding the likely consequences of National Party policies. It is not the Authority’s role to analyse the likely implications or feasibility of any Party’s policies. Listeners 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.⁹

[21]  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
14 September 2023    

Appendix

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

1  Lara East’s complaint to the Authority – 11 September 2023

2  The National Party’s response to the complaint – 12 September 2023

3  NZME’s response to the complaint – 12 September 2023

4  East’s final comments on the complaint – 13 September 2023

¹ Standard E2, Election Programmes Code 2023 
² See Brown and MediaWorks TV Ltd, Decision No. 2017-074 at [15]
³ Introduction, Election Programmes Code 2023 at 1
⁴ Guideline G1a
⁵ Guideline E2b, and see Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [8]
⁶ Guideline E2c
⁷ Guideline E2d
⁸ See Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [8] where we found statements concerning planned policy are not quantified promises, guarantees or statements of fact to which the accuracy standard applies to
⁹ See Allen and MediaWorks TV Ltd, Decision No. 2014-106 at [9] for a similar finding