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By Steven | 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 (norĀ 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 boardĀ 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 | 2 Comments »

2 Responses to “Wrong”

  1. eddie clark Says:
    November 10th, 2008 at 3:30 pm

    The weird (read wrong) treatment of their own advocacy principle is particularly bizarre if you look at previous political expression decisions. In the past they waxed lyrical about the wonders of free expression in political advocacy, this time they say that 3.5% difference is unacceptably inaccurate. In the West Wind decision they OK’d a picture that was literally 500% inaccurate.

  2. Act lied and gets away with it at The Standard 2.02 Says:
    November 30th, 2008 at 1:14 am

    […] Wrong – ASC Appeal Board upheld a complaint against Labour that a YouTube video saying the National was planning to cut KiwiSaver in half. Steven thought that decision was wrong, and so do I. Everything I’ve seen says that the contributions from government will be dropped by more than half, and employer contributions by a lot. But it appears that the ASCAB have a problem with numbers. […]


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