Wrong
November 7, 2008
The Advertising Standards Complaints Appeal Board has upheld the decision against Labour’s YouTube ad – the one that criticised National’s plan to cut Kiwisaver in half. (The appeal board’s decision is below the complaints board’s one, so you’ll have to scroll down).
How bad is the decision? Let me count the ways.
First, it decided that the “cut Kiwisaver in half” claim was presented in the ad as a quote from John Key. This was because other statements in the ad were direct quotes (though viewers wouldn’t know that) and a date was given for each. But the ad didn’t use quote marks. And the original decision didn’t make this finding (nor did the complainant argue it on appeal).
Second, it accepted that the ad was ambiguous, but found it misleading “by implication and ambiguity”. Obviously, for those who understood it in the correct way, it wasn’t misleading at all. For those who didn’t, it may have been. Ambiguous statements are not plainly misleading, and need to be cut some slack in a political context.
Third, it accepted evidence that, under National Party policy, the minimum contributions would be cut by half, the employer tax credit would be discontinued, and government Kiwisaver contributions would be cut by 46.35%. (Actually the evidence was that it may be more than that). But apparently that wasn’t enough to justify the statement.
Fourth, it decided that the “cut Kiwisaver in half” claim was a statement of opinion disguised as a fact. It then knocked the ad for failing to distinguish between fact and opinion, and blew off the advocacy principle that allows latitude for political and other forms of advocacy. But we’re dealing here with a clear statement of fact – a factual characterising of the policy. Either it’s misleading, within the bounds set by political rhetoric, or it’s not. It it had said “cut Kiwisaver by three quarters” it would have simply been plainly wrong as a matter of fact. What the appeal board didn’t understand is that, properly applied, the advocacy principle requires some latitude for exaggeration.
Fifth, it applied the wrong standard. It said it needed to keep in mind
the high standard of accuracy required in advertisements regarding financial products or financial matters…
But this is a political ad. Viewers know that it will contain some simplification, some hyperbole. This is not, as the board thought, “inappropriate” in a political ad. It’s not an ad for investments in a finance company. The board shouldn’t be pulling out their high-powered consumer protection microscope and subjecting the ad to minute scrutiny.
The sixth reason ties the other ones up. I’m not just saying that I’d prefer the board to take a looser approach to this ad. I’m saying that it’s required by law. The board cites the ASA’s own advocacy code’s reference to the Bill of Rights Act (and rightly so, because the Bill of Rights covers them since they’re performing a public function). There’s lots of law on the approach such agencies are required to take when dealing with restrictions on freedom of expression – such as upholding a complaint that effectively imposes a ban on an ad. Those restrictions must be demonstrably justified, and political speech in particular must be treated very carefully. The appeal decision contains precisely no reference to any of that law, despite the fact that there are two lawyers on the board. To be fair, it doesn’t seem to have been argued before them in any detail at all.
By and large, lawyers suck at applying the Bill of Rights.
If anyone were to seek judicial review, I can’t see how this decision would survive High Court scrutiny. But with the election tomorrow, I doubt anyone will bother.
Topics: Advertising Standards, NZ Bill of Rights Act | 49 Comments »
So that’s all right then
November 5, 2008
The Daily Mail has just joined the Sun and the Daily Star in apologising to (and paying defamation damages to) Italian footballer Marco Materazzi for falsely accusing him of racially abusing Zinedine Zidane, triggering the famous headbutt in the 2006 World Cup final. The paper reported that he called Zidane “the son of a terrorist whore”.
In fact, in response to Zidane’s taunt that Materazzi could have his shirt after the game, Materazzi had merely said: “I’d rather have your whore of a sister.”
Topics: Defamation | No Comments »
NSW moves to stop judgments prejudicing trials
November 4, 2008
New South Wales is taking steps to take judgments offline where they might affect a jury because they contain prejudicial details. One of the parties has to make an application though. (Hat tip: Ursula Cheer).
Topics: Contempt of Court | No Comments »
CA to rule on right to jury in contempt cases
November 3, 2008
The Bill of Rights Act says we have the right to a trial by jury if the penalty for an offence exceeds 3 months jail.
The maximum penalty for contempt is indefinite imprisonment. Recently, Vince Siemer was sentenced to 6 months in jail. He asked for a jury trial. It was denied.
Why? The Courts maintain that contempt isn’t really a crime, it’s only “in the nature of a crime”. Contempt charges are brought by an application to court, not by an information laid by the police or a complainant. There are different procedural rules. A finding of contempt isn’t really a “conviction”.
I think these distinctions are bogus. If it looks like a duck, and quacks like a duck, and can send you to prison like a duck, the law should treat it like a duck.
Siemer is appealing the no-jury ruling to the Court of Appeal and the case is scheduled to be heard in December. Rodney Harrison QC has been appointed as an amicus, so the fate of our contempt laws will not hinge on Siemer’s ability to mount a complex legal argument without pissing off the judges…
Topics: Contempt of Court, NZ Bill of Rights Act | 51 Comments »
Copywrongs
November 3, 2008
How ironic that ACT violated the Greens’ intellectual property rights by pinching their cute-kid photo. So much for the law-and-order party.
Still, I think this points up a gap in our law. Spoofs like this should be fair game, I think. The US has a fairly strong parody defence to copyright infringements. Australia has followed suit. NZ’s protection of parody and satire is weak and uncertain. I think our current law is probably inconsistent with the Bill of Rights Act.
As it happens, in September, the government announced a review on the protection of parody and satire in our copyright laws. About time.
Topics: Copyright, Electoral speech, NZ Bill of Rights Act | 2 Comments »
Overcharged?
November 3, 2008
It was always possible that further charges were to be laid against some of the Urewera defendants, and here they are: participation in an organised criminal group.
Must say, though, I feel some disquiet about the adding of these broad-based charges (as opposed to the more specific Arms Act ones) after the High Court has narrowly found that the Fairfax coverage did not create a real risk of prejudice to the defendants’ trials – in part because:
there is nothing before us to suggest that there is any real risk that any defence available to the accused is likely to be compromised by the publication of the intercepted communications.
As I’ve discussed, that’s not really true. The judges were wrong to say that “the focus of any defence is likely to be on identification”. But even if it were true with respect to the Arms Act charges – it seems hard to believe that the published material from the intercepted communications won’t affect the defence of someone charged with participation in an organised criminal group.
Topics: Contempt of Court | 2 Comments »
We’re reporting their news, there
October 31, 2008
I’m following the US election closely, and I’m a Radio NZ listener, so you’d think I’d be applauding Radio NZ’s decision to send Geoff Robinson there to report the elections from the ground.
But really, I’m wondering why they’ve spent the money. How many of Geoff’s interviews couldn’t have been done from here by phone? (How many of them in fact are being done by phone?) Do we really need a NZ angle on these elections, and is RNZ delivering on that anyway? What’s the point of a bunch of vapid and disproportionately pro-Obama vox pops? Is the possibility of Arnie getting a role in an Obama administration really one of the big issues? Why does RNZ keep interviewing Zogby, which seems to be about the only polling organisation not prepared to suggest that it looks pretty much like Obama’s going to win (check the rolling poll averages and state-by-state breakdowns at RealClearPolitics and Pollster)?
Topics: Media ethics | 1 Comment »
White Knight
October 31, 2008
The Wellington City Council is requiring prior approval and bonds for the posting of political posters on council-owned poster bollards, and is apparently restricting their locations. Dean Knight rightly takes issue with this policy here and here.
Topics: Electoral speech, NZ Bill of Rights Act | No Comments »
Labour’s YouTube Boob 2
October 30, 2008
I mentioned the Electoral Commission v Cameron case in the post below. The Court of Appeal granted judicial review against an Advertising Standards Authority decision upholding a complaint against the Electoral Commission.
One of the grounds of that decision was that the ASA shouldn’t have used its own complaints jurisdiction to trespass on the Electoral Commission’s functions. Get a load of this:
… in the exercise of the assumed jurisdiction [of the ASA] we would expect the [ASA’s complaints] board to tread carefully in relation to such matters as the public education advertisements of the [Electoral] commission and similar public authorities to ensure that it does not substitute its views for those of an expert body charged with particular responsibilities.
Now, isn’t the Broadcasting Standards Authority a “similar public authority”? It has jurisdiction over the broadcast of political ads on radio and TV but not on the internet. If anyone complained about this ad to the BSA it would have to determine whether it was fair and accurate.
Isn’t that pretty similar to the standards being applied by the ASA (which decides whether an ad is misleading or deceptive)? Isn’t the BSA an “expert body charged with particular responsibilities” such that the ASA is in danger of “substitut[ing] its views” for the BSA’s?
I think there’s a pretty strong argument on the basis of the Cameron case that the ASA should have butted out here. After all, no-one is left without a remedy: a complainant who saw the YouTube ad could be redirected to the BSA by the ASA. As it stands, we have the prospect of inconsistent decisions.
Would the BSA decide the case any differently? This case would suggest not. The BSA upheld a Maori Party complaint against Labour for saying in an ad that the Maori Party had voted with National 227 times. The Maori Party felt this overstated their support for National, but rather shot themselves in the foot. The correct figure, it transpired, was at least 277 times. The BSA felt it had to uphold the complaint because the ad inaccurately undercounted the number.
That seems pretty silly and disproportionate to me. Even the BSA described it as “technical”. The BSA said it has adopted a “strict approach” to the accuracy principle. This isn’t really true – it quite often stretches to find reasons to avoid upholding merely technical breaches of the accuracy standard. Even if it was true, it doesn’t mean to say that the BSA need to adopt the same approach in electoral advertising cases. The Electoral advertising code, after all, accepts that the Bill of Rights required “robust debate, advocacy and expression of political opinion”.
Topics: Advertising Standards, Broadcasting Standards Authority, Electoral speech | 48 Comments »
Labour’s YouTube Boob
October 30, 2008
Did John Key say National would cut KiwiSaver in half? That’s what Labour said in their “John and John” ad. The ad was broadcast on TV and posted on YouTube.
One S Davies-Colley thought was misleading, and complained about it.
Under NZ’s increasingly creaky media law edifice, complaints about TV and radio election ads go to the Broadcasting Standards Authority. But the Advertising Standards Authority has jurisdiction over all the rest – including ads on YouTube. S Davies-Colley complained to the ASA.
The ASA’s complaints board agreed with S Davies-Colley. John Key didn’t say National would cut KiwiSaver in half. He merely said National would cut the minimum employee/employer contribution from 4% each to 2% each.
Okaaaaaay. Sounds like half to me. But apparently it’s not as simple as that. The scheme has a $1000 kick-start amount. That’s not changed. And it has tax credits up to about $1000 a year that remain, though it seems they will be reduced for lower-income earners. What’s more, employers can continue to offer better deals than the minimum. Also, there are KiwiSaver members who don’t have employers, such as the self-employed, caregivers at home and early retirees. Their benefits won’t be cut in half.
So it’s right to say that those employed will have their employer contributions cut in half. And it may be right to say that for most KiwiSaver members, the benefits lost will be about half, though for a fair number, it’s likely to be significantly less.
Here’s my beef: I accept the ad was technically wrong, but I don’t think it was substantially misleading. I think political speech needs to be given breathing space for a degree over-simplification and exaggeration. I don’t think people engaged should have to weigh their claims to a nicety or face a penalty for it. Here, the penalty is not just the removal of the ad but the formal imprimatur of a complaints body on a finding of error. And I think the NZ Bill of Rights Act requires the ASA to give more weight to the importance of political expression.
Don’t get me wrong: I’m delighted that we have a system for ruling on the accuracy of political ads. It offers something of a buffer against terribly misleading ads like those aired by the “Swiftboat Veterans for Truth” who attacked – almost certainly falsely – John Kerry’s war record and may well have swung the election to George W.
Also, I think the ASA does a pretty good job most of the time. For example, they were right to not to uphold a complaint against the National Party’s Iwi/Kiwi billboard, though it was arguably even more deceptive than the Labour ad. They were right to reject a complaint against a water safety ad by the Waitakere City Council, even though it overstated the annual number of drownings in home swimming pools. They are right to recognise the importance of “robust expression of opinion and debate” in their rulings and state in their principles that:
…the Codes fetter the right granted by section 14 [of the NZ Bill of Rights Act – freedom of expression] to ensure there is fair play between all parties on controversial issues. Therefore in advocacy advertising and particularly on political matters the sprit of the Code is more important than technical breaches.
A minority of the complaints board found the breach technical. I agree.
I’m inclined to think the majority members of the complaints board got too picky, as they did in 1997 when the ASA upheld a complaint against an Electoral Commission ad that explained MMP by saying:
Key fact: Each party’s share of all the Party Votes decides its share of all 120 seats in Parliament.
The ASA thought that the ad failed to acknowledge that there were some circumstances when the MMP system wouldn’t pan out like this. True. But overly picky. It loses sight of the big picture. The ASA’s ruling there was overturned by the Court of Appeal in Electoral Commission v Cameron [1997] 2 NZLR 421 for exceeding its jurisdiction and muscling in on the Electoral Commission’s territory. More on that later.
In defence of the ASA majority in the KiwiSaver case, they reasoned that it was important in a high-profile issue like KiwiSaver that the parties get their facts right. They may also have had in mind that accurate financial information is at a premium in these these days of worldwide economic meltdown.
But I think they undervalue the importance of cutting political speech some slack. At election time, political speech is particularly valuable. The KiwiSaver point was focused on policy, and on a political leader’s credibility. National had ready public platforms on which to defend itself. Labour’s statement was accurate on one reading, and any ambiguity ought to have been resolved in its favour (as the Broadcasting Standards Authority often does). I don’t think this limitation on their speech was justifiable.
The case is under appeal to the Advertising Standards Complaints Appeal Board, and I gather it will be heard early next week. The grounds of appeal are limited, though: Labour will have to show new evidence, or a failure of procedural fairness or (most likely, I think) that the decision was against the weight of evidence.
Successful appeals are rare, but I think this should be one.
Topics: Advertising Standards, Electoral speech, NZ Bill of Rights Act | 49 Comments »
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