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Labour’s YouTube Boob 2

By Steven | 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 | 39 Comments »

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