Thomas and SKY Network Television Ltd - 2017-082 (27 October 2017)
- Peter Radich (Chair)
- Paula Rose QSO
- Te Raumawhitu Kupenga
- Sarah Thomas
ProgrammeBan 1080 Party Election Programme
BroadcasterSKY Network Television Ltd
[This summary does not form part of the decision.]
A campaign advertisement for the Ban 1080 Party (an election programme for the purposes of the Election Programmes Code) was broadcast at 5.20pm on 9 September 2017 on Prime, during a G-classified fishing programme, Addicted to Fishing. The advertisement featured a voiceover discussing the purported use and effects of sodium fluoroacetate (1080 poison) on New Zealand’s fauna, in particular deer. The advertisement included a number of close-up images of dead deer allegedly poisoned by 1080, some of which appeared to be frothing at the mouth. A complaint was made that the broadcast of these images at a time when children may be watching was upsetting and inappropriate, in breach of the good taste and decency standard (which applies under Standard E1 of the Election Programmes Code). The Authority did not uphold the complaint, finding that, while the images may be confronting for some viewers, they related to Ban 1080’s main political policy message, and in the context the high threshold necessary to find a breach of the good taste and decency standard was not met. The Authority emphasised the importance and value of political expression, particularly in the lead up to a general election.
Not Upheld: Election Programmes Subject to Other Codes, Good Taste and Decency
 A campaign advertisement for the Ban 1080 Party (an election programme for the purposes of the Election Programmes Code) was broadcast at 5.20pm on 9 September 2017 on Prime, during a G-classified fishing programme, Addicted to Fishing. The advertisement featured a voiceover discussing the purported use and effects of sodium fluoroacetate (1080 poison) on New Zealand’s fauna, in particular deer. The advertisement included a number of close-up images of dead deer allegedly poisoned by 1080, some of which appeared to be frothing at the mouth.
 Sarah Thomas complained that the advertisement contained ‘images of dead deer with blood and froth coming out of their mouths’, which was disturbing for her and for her children and inappropriate for broadcast at a time when children could be watching.
 The issue is whether the broadcast breached the good taste and decency standard of the Free-to-Air Television Code of Broadcasting Practice (under Standard E1 of the Election Programmes Code – Election Programmes Subject to Other Codes).
 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 ran from 23 August to midnight on 22 September 2017. This is a complaint about an election programme broadcast for the Ban 1080 Party by SKY Television, on Prime.
 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. In this case, the complaint was first sent to the broadcaster and was subsequently referred to the Authority for determination on 9 October 2017. While the election period is now over we have nevertheless determined this complaint on a fast-track basis, given that the election continues to be a matter of topical importance.
 When we receive a complaint about an election programme, we seek submissions from the complainant, the broadcaster and also the political party. We thank the parties involved in this matter for their timely 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.1 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.
Did the broadcast breach the good taste and decency standard?
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards.
The parties’ submissions
 Ms Thomas said that she was ‘not impressed’ that the advertisement containing images of dead deer had been allowed to air during the day when children were likely to be watching.
 SKY Television advised that the advertisement had been reviewed by the Commercial Approvals Bureau (CAB) and classified ‘EG (Election General – meaning it can play anywhere)’. The CAB was set up in 1989 to approve the content of all television commercials before they are broadcast on any television or digital media outlet in New Zealand. When an advertisement is approved it is given a CAB classification which determines the times of day it may be broadcast.2
 The Ban 1080 Party submitted:
- The advertisement showed only a fraction of the effects of 1080 poison on New Zealand’s flora, fauna and waterways.
- Thousands of deer are poisoned every year in New Zealand by 1080. Often animals eat many more baits than are required to kill them, as there is a two-hour latent period before the targeted animal feels the effect of the poison – so animals suffer for many hours before they finally succumb to the poison. Additionally, the animals’ bodies are extremely toxic and so go on to poison any other animal, insect or bird that feeds off them.
- ‘We deliberately chose to coincide our ads with hunting and fishing shows because these are important messages about 1080 poison being in the food chain.’
- Ban 1080 agreed that the images used were disturbing, saying: ‘The protracted suffering that [hundreds] of thousands of animals are subjected to every year through the poisoning campaigns, is revolting and unacceptable.’
- Other animal welfare organisations use images of live animals that are suffering to get across their messages, ‘which is arguably more distressing than seeing dead animals’.
 Context is highly relevant to our consideration of whether certain content threatened standards of good taste and decency in the context in which it was broadcast. The relevant contextual factors here include:
- The Ban 1080 election advertisement was broadcast at 5.20pm on Prime, during children’s normally accepted viewing times.
- The advertisement was broadcast during the fishing programme Addicted to Fishing, which was classified G (General). The programme often contains images of fish being caught and killed.
- The CAB gave the advertisement an EG classification (Election General), meaning it could be aired at any time.
- The Ban 1080 Party advises the advertisement was placed within a fishing programme to highlight the Party’s views on the effect of 1080 poison on New Zealand’s waterways and the food chain.
- Political speech and election advertising are afforded high value in terms of the exercise of the right to freedom of expression, particularly in the lead up to a general election.
 Having regard to these factors, overall we do not consider that the Ban 1080 advertisement reached the high threshold necessary to find a breach of the good taste and decency standard, under Standard E1 of the Election Programmes Code.
 We accept that the images of dead deer included in this election advertisement were confronting. There were four close-up shots of dead deer during the course of the 57-second election advertisement, with the first shown approximately 40 seconds into the advertisement. Two of the deer appeared to have froth coming from their mouths.
 However, while the images may have upset some viewers, they were central to Ban 1080’s political message promoted in the advertisement, which sought to influence viewers to vote for the Ban 1080 Party. It is clear from Ban 1080’s policy material and the information it provided to us that its strongly held view is that waterways and animals are being poisoned at an unacceptable rate. This is the perspective on which the Ban 1080 Party’s policies are based. The voiceover accompanying the images was as follows:
Voiceover: Around 1 million hectares of New Zealand’s forests and waterways are aerially sprayed with 1080 poison bait every year.
Party leader: [Standing over dead deer on the ground] It’s bad enough to kill these little fellas [deer], but the way they die – it’s awful.
Voiceover: Studies show that thousands of deer are poisoned every year. Stop the cruelty. Give your vote to the Ban 1080 Party.
 Taking into account the vital importance of free political expression in the lead up to the general election, we do not consider that the right to freedom of expression ought to be limited in this case. It is important that political parties and candidates are able to exercise this right to tell their story and convey their political message in the way they choose, so long as standards are maintained. The images in the advertisement were not at a level which threatened standards or which warrants our intervention on this occasion.
 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
27 October 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Sarah Thomas’ election programme complaint – 9 September 2017, referred to the Authority by the broadcaster on 9 October 2017
2 SKY’s response to the complaint – 17 October 2017
3 Ban 1080’s response to the complaint – 17 October 2017
1 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.