Lupton and Māori Television Service - 2017-071 (20 September 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Maria Lupton
ProgrammeBan 1080 Party Election Programme
BroadcasterMāori Television Service
[This summary does not form part of the decision.]
A campaign clip for the Ban 1080 Party (an election programme for the purposes of the Election Programmes Code) was broadcast on 11 September 2017 on Māori Television. The clip featured a voiceover discussing the purported use and effects of sodium fluoroacetate (1080 poison) on New Zealand’s flora, fauna and waterways, accompanied by footage of animal carcasses and 1080 baits in water. The Authority did not uphold a complaint that the election programme was misleading by inferring that there are dead possums and pigs in waterways as a result of 1080, and also by implying that 1080 is deliberately dropped into waterways. The Authority found that the claims made within the context of the broadcast, and the images used, amounted to expressions of political advocacy and opinion rather than fact, made for the purpose of encouraging voters to vote for the Ban 1080 Party. The Authority emphasised the importance and value of political expression, particularly in the lead up to a general election. In this context the Authority did not consider the high threshold for finding a breach of standards was met.
Not Upheld: Accuracy, Distinguishing Factual Information from Opinion or Advocacy
 A Ban 1080 Party campaign clip (an election programme for the purposes of the Election Programmes Code) featured footage of aerial drops of 1080 poison and footage of dead animals in water, with a voiceover making assertions about the aerial spray and impact of 1080. The advertisement concluded with an invitation to voters to vote for the Ban 1080 Party.
 The full voiceover in the advertisement was as follows:
Almost 1 million hectares of New Zealand’s forests and waterways are aerially sprayed with 1080 poison bait every year. No attempt is made to avoid waterways and almost all forest streams are poisoned at the same rate as the land areas around them. Poisoned animal carcasses are left to decompose on land and in water. Reduce E.coli and stop the poisoning of our waterways. Give your vote to the Ban 1080 Party.
 Maria Lupton complained that this election programme was misleading as it inferred that there are dead possums and pigs in waterways as a result of 1080, and it also implied that 1080 is deliberately dropped into waterways.1
 The issue is whether the broadcast breached Standard E2 of the Election Programmes Code of Broadcasting Practice (Distinguishing Factual Information from Opinion or Advocacy) and also whether the broadcast breached the Accuracy Standard of the Free-to-air Television Code of Broadcasting Practice (under Standard E1 – Election Programmes Subject to Other Codes).
 The programme was broadcast on 11 September 2017 on Māori Television.
 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 Ban 2080 by Māori Television.
 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 and detailed responses to our request for submissions.
Overview – The right to freedom of expression and political speech
 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.
 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. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.
Was the broadcast inaccurate or misleading?
 The accuracy standard (Standard 5) of the Free-to-Air Television 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 objective of this standard is to protect audiences from receiving misinformation and thereby being misled.3
The parties’ submissions
 Ms Lupton submitted:
- That ‘the advertisement is not accurate in relation to all material points of fact. It misleads and fails on almost all points of fact as outlined below:
- This advertisement is misleading in showing and inferring that the dead possum and dead pig are in the water as a result of 1080 poison.
- After ingesting 1080 possums normally go back to their nests to die and are unlikely to be in the water.
- After ingesting 1080 pigs will generally vomit the poison back up and not die from it.
- The advertisement is also misleading in inferring that 1080 is deliberately put into waterways.
- Contractors go into a great deal of effort to avoid waterways as much as possible.’
 Māori Television submitted:
- Nowhere in the advertisement were statements made advising that 1080 poison is put directly into waterways.
- Ban 1080’s advertisement was an opinion piece and was clearly distinguishable from fact.
- The purpose of the election programme was clearly to advocate a particular position, and to encourage voters to vote for the Ban 1080 Party.
 The Ban 1080 Party submitted:
- Poisonous baits are dropped directly into all waterways, in most aerial operations. The few operations where some streams are buffered are poisoned upstream, where the tributaries begin.
- ‘When the aerial operations are undertaken, the poison baits are cast all across the forest, the water, and the grassy areas around the waterways. The animals then encounter the poisonous cereal food, consume it, often eating many more baits that is required to kill them. And they die. In and around the waterways.’
- ‘Possums consume the bait and die while out feeding. They most often do not return to their nests to die. They die where, and whenever the poison over comes them.’
- Council records from 2015 show that 1080 is dropped in waterways.
- Law changes in 2017 mean that aerials drops can now take place without any resource consent.
- It stands fully by the accuracy of the statements.
 In order to determine if the accuracy standard applies to the Ban 1080 election programme, we must first consider whether the content in the advertisement amounted to stated facts, or rather stated opinions. If the advertisement is found only to contain comment, analysis and opinion, then the accuracy standard will not apply (guideline 9a).
 A fact is verifiable – something that can be proved right or wrong. An opinion is someone’s view; it is contestable and others may hold a different view. A consideration of whether a statement is an assertion of fact or an opinion is not always straightforward, and it depends heavily on context and presentation. It is crucial how a reasonable viewer or listener would perceive it.4
 Other relevant factors in determining whether a statement is fact or opinion include:
- the language used in the statement
- the language used in the rest of the item
- the type of programme and the role or reputation of the person speaking
- the nature of the subject matter, for example if it is a controversial topic
- whether evidence or proof is provided
- whether the statement is attributed to someone.5
 The Authority has previously recognised that election advertisements that promote a party’s policy promises are, by their very nature, ‘highly political, often hyperbolic vehicles for advocacy and influence’.6 This means that, in order to find an assertion of fact, a statement needs to be clearly identifiable as such by reference to the factors we have mentioned (that is, it is precise in its language and capable of being proven) – rather than simply expressing the opinions of a campaigning political party in a forum where advocacy, hyperbole and robust criticism of the government are the norm, and expected.
 Taking the advertisement as a whole, and in the broader context of Ban 1080’s policy position, we consider that the content of the advertisement which is the centre of this complaint, could reasonably be interpreted as an expression of the opinion of the Ban 1080 Party, rather than fact.
 The dominant purpose and effect of the advertisement was to communicate Ban 1080’s political policy position in an attempt to secure votes in the upcoming election. Ban 1080 are known as a political organisation with the predominant focus of banning 1080 in New Zealand. The use of 1080 is a political and controversial issue in New Zealand as indicated by the contrasting opinions held by various political parties regarding the use of it in our forests, and specifically the use of aerial dropping as a 1080 distribution system.
 It is clear from Ban 1080’s policy material and the information it provided to us that its strongly held view is that no attempt is made to avoid waterways during 1080 drops, and that waterways and animals are being poisoned at an unacceptable rate. We do not think viewers would be unduly surprised, or misled, by the Party’s expression of these views or the images selected for use in the advertisement, given the Party’s political identity and mission statement.
 For these reasons, and taking into account the vital importance of free political expression 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 this aspect of the complaint.
Did the election programme clearly distinguish factual information from opinion or advocacy?
 Standard E2 of the Election Programmes Code states that an election programme may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy.
The parties’ submissions
 Ms Lupton submitted that ‘the advertisement is not factual. It is misleading’.
 Māori Television submitted that the advertisement was clearly advocating a point of view.
 The Ban 1080 Party submitted:
- A significant amount of information regarding resource consents for aerial dropping of 1080 and the effect it can have, including information obtained from a Regional Council, dated from 2013-2016.
- What the Party says does not matter, ‘it’s what can be proven.’
 The expression of opinion in advocacy advertising is a desirable and essential part of democratic society, but factual information should be clearly distinguishable from opinion or advocacy.7 The purpose of this standard is to ensure that political parties and broadcasters take care not to mislead viewers by presenting political assertions as statements of fact.
 The nature of Standard E2 is such that we have asked ourselves the same questions as we did in relation to the free-to-air Accuracy standard. As discussed above in paragraphs  to , we have reached the view that the statements and images used in the advertisement, when placed within the context of Ban 1080’s political identity and reputation for being against the use of 1080 in New Zealand, could reasonably be interpreted as expressions of political opinion or advocacy, designed to persuade voters to vote for the party. We accept that these were strong, persuasive statements, and that the images used were confronting.
 However, the level of precision necessary to describe the statements as ‘factual’ was absent. The choice of images was consistent with Ban 1080’s message, and its exercise of political speech. When watching the advertisement in its entirety, it would be obvious to viewers that by its very nature it was advocating for the Ban 1080 Party and its flagship policy. We therefore do not consider that the audience would have been misled in the manner envisaged by Standard E2, and we do not uphold this part of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
20 September 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Maria Lupton’s election programme complaint – 12 September 2017
2 Māori Television’s response to the complaint – 13 September 2017
3 Ban 1080s’s response to the complaint – 14 September 2017
4 Ms Lupton’s final comments – 14 September 2017
5 Ban 1080’s final comments – 19 September 2017
1 See also Rameka and Māori Television Service, Decision No. 2017-070, regarding the same advertisement.
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.
3 Bush and Television New Zealand Ltd, Decision No. 2010-036
4 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
5 As above
6 See, for example, Allen and MediaWorks TV Ltd, Decision No. 2014-106.
7 Allen and MediaWorks TV Ltd, Decision No. 2014-106