Sime and Television New Zealand Ltd - 2020-127 (30 September 2020)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Malcolm Sime
ProgrammeLabour Party Election Advertisement
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an election advertisement for the Labour Party that included the statement, ‘Together we went hard and early to fight COVID...’ The complaint was that this statement breached broadcasting standards because it should have said the Labour Party ‘went hard and late’, on the basis it could have taken ‘some action at the border’ earlier than it did, to protect New Zealanders. The Authority found the statement was clearly opinion and advocacy promoting the Labour Party, rather than a statement of fact, and that viewers were unlikely to be misled. There was no actual or potential harm caused, to outweigh the importance of freedom of expression and free political speech in the lead up to the general election, or to justify regulatory intervention.
Not Upheld: Election Programmes Subject to Other Standards (Accuracy), Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy
 A Labour Party election advertisement was broadcast on TVNZ 1 at 6.15pm on 20 September 2020, which included the following statement by the Labour Party leader, Prime Minister Jacinda Ardern:
Together we went hard and early to fight COVID. Our plan now is to rebuild the economy even stronger. We’ll create new jobs with infrastructure and environmental projects, make apprenticeships free to prepare for tomorrow’s jobs, and back business and grow trade with targeted support.
 Malcolm Sime complained that the advertisement should have instead stated, ‘Together we went hard and late’, noting the New Conservative Party had called for ‘some action at the border’ as early as 25 January 2020.
 In considering this complaint, we have viewed a recording of the broadcast and read the correspondence listed in the Appendix.
Overview – Election programmes
 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 13 September 2020 to midnight on 16 October 2020. This is a complaint about an election programme broadcast for the Labour Party by TVNZ 1.
 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.
The relevant standards
 Mr Sime alleged that the broadcast breached Standard E2 (Election Programme Advocacy – Distinguishing Factual Information from Opinion or Advocacy) of the Election Programmes Code. Under Standard E2, an election programme may include advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy. Evidence in support of factual information must be appropriate and robust and must be readily available and obtainable.1
 Under Standard E1 of the Election Programmes Code (Election Programmes Subject to Other Codes), all other standards in the Free-to-Air Television Code of Broadcasting Practice, except for the balance standard (Standard 8), apply. Because of the nature of Mr Sime’s concerns regarding the statement made in the advertisement (ie that ‘early’ was not the correct term), we have also considered his complaint in relation to the accuracy standard (Standard 9) of the Free-to-Air Television Code, and invited the parties’ submissions on that standard as well as Standard E2 .
 The purpose of the accuracy standard is to protect the public from being significantly misinformed.2 It states that broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.3
Responses from the Labour Party and the broadcaster
The Labour Party’s response
 The Labour Party responded to the complaint as follows:
- ‘Labour’s claim is true in the sense that a reasonable viewer would interpret it.’
- ‘[T]he typical consumer of our ad would not interpret “Together we went hard and early…” to mean “Together we went as hard and as early as the New Conservative Party had recommended in their press release”, [but] [i]nstead…to mean “Together, New Zealanders and their government went harder and earlier against COVID-19 than many other countries”.’
- ‘There is strong evidence in favour of Labour’s claim that we went hard and early against COVID-19 compared to other countries. For example:
- While New Zealand imposed self-isolation requirements for returning travellers within 16 days of our first confirmed COVID-19 case, that same action took 51 days in Australia, 59 days in Canada.
- New Zealand is one of only a very few countries in the world to impose managed isolation on returning travellers. Most countries have yet to take this step at all.
- While New Zealand closed its borders within 21 days of our first confirmed COVID-19 case, that same action took 40 days in Italy, 44 days in Spain, 56 days in Germany, and has yet to be implemented at all in some other countries such as the USA.’
The broadcaster’s response
 TVNZ responded to the complaint as follows:
Standard E2: Election Programme Advocacy
- This was clearly a statement of opinion or advocacy in support of the Labour Party’s position.
- ‘Early’ is a subjective term, and a reasonable interpretation of this word is that it refers to ‘near the beginning of a particular time or period’.
- Advocacy such as this does not require rigorous evidential proof.
- The Labour Party has provided sufficient substantiation for their view that ‘Together we went hard and early to fight COVID’.
Accuracy (Under Standard E1: Election Programmes Subject to Other Codes)
- The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
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.4
 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 have been caused by the broadcast. Given the high value placed on political speech in the lead up to a general election, a correspondingly high threshold must be reached to conclude that an election programme has breached broadcasting standards.5
Standard E2: Election Programme Advocacy
 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 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 viewer or 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.
 Having regard to these factors as they apply in this case, we determined that the statement complained about was clearly distinguishable as opinion and advocacy, rather than a statement of fact. The key reasons in support of this view were:
- The context and tone of the programme, characterised by political advocacy or a ‘political pitch’, clearly sought to secure votes by ‘selling’ the Labour Party’s past performance and plans for the future to prospective voters.
- The Concise Oxford English Dictionary defines ‘hard’ (adverb) as ‘with a great deal of effort’, and ‘early’ (adverb) as ‘before the usual or expected time’ or ‘at or near the beginning of a time, period, etc.’.8 Both are relative terms that require subjective analysis.
- Similarly, the statement characterising the Labour Government’s response to COVID-19 is contestable, and others may hold a different view, indicating it is more in the nature of subjective analysis and opinion (it is not a fact that can definitively be proven right or wrong).
- Reasonable viewers were likely to understand the statement about fighting COVID-19 to be a complimentary self-assessment, and political advocacy, with a view to encouraging prospective voters to vote for the Labour Party, rather than an objective and definitive statement of fact.
- Finally, the response of the New Zealand Government to COVID-19 was the subject of substantial coverage, both critical and complimentary, through which viewers or listeners could reasonably be expected to be aware of alternative views and opinions to consider in making their voting decision.
 In these circumstances, we have not found any breach of Standard E2, or any actual or potential harm that outweighed the importance of free political speech. We therefore do not uphold the complaint under Standard E2.
Standard E1: Election Programmes Subject to Other Codes (Accuracy)
 As noted above, the accuracy standard of the Free-to-Air Television Code states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.9 Additionally, guideline E1b to Standard E1 provides guidance on how the accuracy standard in particular is to be applied in an election context, noting that robust debate, advocacy and expression of political opinion are a desirable and essential part of a democratic society. The relevant points of guidance in this case are as follows:
- The assessment of whether any election programme statement amounts to a material point of fact or is misleading will be guided by how a reasonable viewer or listener would interpret it in the context of an election campaign (ie would a reasonable viewer or listener interpret the statement literally or as a transparent promotion of party/candidate policies or encouragement to vote a particular way).
- Whether the statement related to an election issue or party policy that viewers or listeners could reasonably be expected to be aware of (lessening the chance of being misled), is also a relevant contextual factor.
 For the same reasons we have outlined in our assessment of Standard E2, we are satisfied that the statement complained about was clearly distinguishable as opinion rather than a statement of fact to which the accuracy standard applied.
 We also consider that the statement related to an issue that was the subject of substantial coverage, namely the New Zealand Government’s response to COVID-19. Viewers could reasonably be expected to be aware of this issue and alternative views on it, reducing the likelihood of the audience being misled.
 We therefore find no breach of the accuracy standard, under Standard E1.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
30 September 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Malcolm Sime’s election programme complaint to the Authority and supporting information – 23 September 2020
2 The Labour Party’s response to the complaint – 23 September 2020
3 The Labour Party’s response to the accuracy standard – 23 September 2020
4 TVNZ’s response to the complaint – 25 September 2020
5 Mr Sime’s email confirming submission under accuracy – 25 September 2020
6 Mr Sime’s final comments – 25 September 2020
1 Election Programmes Code of Broadcasting Practice, March 2020, page 4
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Guideline 9a
4 See the New Zealand Bill of Rights Act 1990, ss 5 and 14, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
5 Guideline G1a, Election Programmes Code of Broadcasting Practice
6 Guideline E2c
7 Guideline E2d
8 Catherine Soanes and Angus Stevenson The Concise English Oxford Dictionary (11th ed revised, Oxford, 2008)
9 Guideline 9a