The Advertising Standards Authority and Broadcasting Standards Authority have both dismissed a complaint against National’s ‘Let’s Tax This’ ad. Lawyer Steven Price, who advised on the complaint, explains why he thinks they got it seriously wrong.

When I first saw the National Party’s blatantly misleading ‘Let’s Tax This’ ad, I thought: the Advertising Standards Authority would have to uphold a complaint about this one. And if the ad is broadcast on TV or radio, the Broadcasting Standards Authority will have to as well.

Not that I think that complaints against political ads should usually be readily upheld. I don’t. I panned the ASA for upholding a complaint against a Labour ad in 2008 where the error was a nit-picky one. The basic point of the ad was right, I said. Political speech needs to be given room for exaggeration, colourful language, even minor mistakes. I also gave the ASA a serve for upholding an complaint against an ACT ad that was also basically correct. And I’ve provided advice to the BSA that it needs a compelling justification before upholding complaints against serious political programmes or political ads.

But it seemed to me that this ad crossed the line. Well, not so much “crossed” as flew over it on a monster truck.

When I heard that a bunch of law students from Victoria University were putting in a complaint, headed by Josh Trlin, I agreed to lend a hand. In the end, though, I thought Josh made the points really well and I didn’t have much to add. It looked compelling. The main point: the ad asserted Labour would impose taxes that were no part of Labour’s platform, including some it had repeatedly publicly ruled out.

A majority of the ASA disagreed. And, in a similar complaint, so did the BSA.

(I should note that the ASA and BSA were looking at slightly different things. The ASA had to decide whether the ad created an overall impression, which directly or by implication, omission, ambiguity or exaggerated claim was misleading or deceptive, or likely to mislead or deceive the consumer. Since it was an advocacy ad, they also had to decide whether it expressed opinion which was clearly distinguishable from factual information. The BSA had to decide whether the factual information was clearly distinguishable from opinion or advocacy, but did not need to rule on whether it was otherwise misleading).

I think they were both seriously wrong, to the point where they’ve abdicated their statutory and contractual responsibilities. That’s a harsh call, so let me explain it.

First, let’s look at why they did not uphold the complaints. Similar themes run through both decisions. They said the starting point was freedom of expression. That’s particularly important for political speech at election time. Viewers could understand that this was a political ad. Viewer would realise it was merely presenting an opinion, not factual information. The National Party had provided some justification for each of its assertions. And viewers could view the ad against the other substantial coverage in the media and elsewhere about tax issues.

The first bit of that is fine. No disagreement that political speech is important and you need very good reason to uphold a complaint against a political ad at election time.

But that’s where we part company. Let me list their errors.

Viewers’ impressions

Both the BSA and ASA are big on looking at the way ads will be understood by ordinary viewers. The ASA calls this the “consumer take out” and the BSA says it’s the impression left on ordinary viewers. You will have seen that the ad starts off with a casually dressed couple entering a leafy suburban house with a “for sale” sign in the yard. Arrows then appear asserting that the house will be subject to capital gains tax and the ground under it, a land tax. National argued that “there is no suggestion that the home shown in the advertisement was the family home.” I think it would probably be more correct to say that this particular clip was specifically chosen because National could not find another one that more clearly evoked a family home. The “consumer take out” here is obvious. The ASA ignored it.

The ad also shows a glass of water. A label suggests a water tax will apply to it. National explains that it showed “bottled water”. I do not doubt that this is true. There is only one problem: there is no bottle there, and without the bottle, it looks to ordinary viewers like tap water. If National wanted viewers to think “bottled water”, do you know what they could have done? Go on, wrack your brain. The point: without the bottle, this is asserting a tax on municipal water. Labour is not proposing that, and National knows it. The ASA and BSA should have called them on this: they are creating misimpressions for viewers. It is not subtle.

I could go on. For example, pretty much everyone who’s considered National’s claim that Labour will hike income tax had concluded it’s misleading. Not the ASA though. But let’s move on to an even bigger problem.

Opinion

Both the BSA and the ASA somehow conclude that this ad “made it clear it presented [National’s] opinion and what they considered to be a point of difference in policy” (ASA) or that it was “clear to viewers that the advertisement did not contain factual information, but rather National’s own analysis of Labour’s comments, policies and tax announcements” (BSA).

I think to call this an “opinion” butchers the language. In its own decision, the ASA says the ad has to be “clearly distinguishable from fact”. The BSA points out that parties have to “take care not to mislead viewers by presenting political assertions as statements of fact.”

But this ad plainly makes a series of assertions of fact. No other conclusion is open. The ad uses Labour-red arrows called Capital Gains Tax, Land Tax, Regional Fuel Tax, Income Tax, Water Tax and Fart Tax, pointing them at a house and land and a wallet and a gas pump and water and a cow. The voice-over says “There’s only one way to stop Labour’s taxes…”.

This is not, by any stretch of the imagination, an expression of opinion. It is not, as National tries to argue, “raising questions”. (It could have done that by using question marks in its arrows, which certainly would have made it less misleading). Nor is it, as National’s lawyers heroically try to suggest, a manifestation of “our argument… that their plans lack sufficient detail for New Zealanders to understand what they’re proposing and why…” or “our position that the representation in the advertisement is that Labour has a range of tax policies it will consider implementing that will affect New Zealanders.” That’s all very well, but it’s not what the ad says.

I really have no idea what the ASA and BSA believe amounts to an “opinion”. They don’t tell us. I’ve done quite a lot of thinking about the distinction between facts and opinions, partly because it comes up a lot in defamation law. The best definition of an opinion I’ve come up with is that it’s something that is conveyed in a way that the reader knows it’s open to be disagreed with. “We think you shouldn’t trust Labour not to enact a mass of new taxes”. That’s an opinion. Even: “Don’t trust Labour on taxes”. I’ll buy: “Will Labour pass new taxes?” But not: “Labour is going to put a tax on the family home and the land under it” or “Labour will pass a capital gains tax” or “Labour will tax drinking water” or “Labour will increase income taxes”. Those are assertions of fact. And those assertions are conveyed by this ad.

I have never seen a definition of opinion that would cover this ad.

Even though there is a plain political context to this ad, that does not change the nature of what it says. Or what ordinary people will take it to mean. And they will take it to be expressing facts about Labour’s policy. Because that’s  what it does.

The harm

The BSA quite properly notes that it needs to weigh the significance of the speech against “the level of actual or potential harm that might be caused by the broadcast.” Then it doesn’t do this. The closest it comes is to point out that there’s a lot of other coverage about taxes. The ASA notes this too. The reasoning here is that informed viewers will understand that taxes are being debated, that Labour has denied they will impose CGT or a land tax on the family home, that National’s claim about income taxes is really about Labour reversing tax cuts that have not yet taken effect, that fart tax isn’t really a tax at all, but a reference to the Emissions Trading Scheme, even though the Greens are in fact proposing a carbon tax, which is different, and… are you starting to see the problem here?

There really is no reason to assume that viewers, or even most of them, will be sufficiently up to speed with the nuances of the tax debate to (a) have an insight that what is being expressed here is an opinion, not assertions of fact and (b) that when the ad claims that Labour will impose CGT on what looks like the family home and tax drinking water, it really means they might impose CGT on something that’s not the family home and tax bottled water.

The real harm here  is that a substantial number of viewers will be deceived into thinking that these really are Labour’s policies. And that might affect their vote. That harm is deepened by the fact that tax is an issue that affects everybody seriously. And is central to the differences between the parties. And is hard to understand. All of that should lead to the conclusion that there is a better-than-usual justification for holding advertisers to account for the accuracy of their claims. I think the ASA and BSA, both of whom barely mention this, have seriously underestimated the potential harm here. It is not putting it too strongly to wonder whether the misleading claims in this ad have contributed to the apparent significant late swing against Labour.

Timid decision?

I think these decisions are timorous ones. I suspect those making them were worried about being seen as interfering with the election. Of course, the danger is that National will now crow that they’ve been proved right by two formal complaints bodies.

It’s also disappointing to see how little the ASA and BSA bothered to address the arguments made to them. For instance, the ASA only looked at the argument around whether Labour planned to introduce a “Fart Tax”. That’s a marginal call. Other parts of the complaint are much stronger. The justification provided by the National Party simply didn’t bear out the allegations in the ad.

The minority of the ASA (stand up and bow, whoever you are) got it right, saying:

the advertisement implied Labour would introduce the taxes presented and it conflated taxes that had been announced by the Labour Party with those that had not… The advertisements were likely to mislead consumers in breach of Rule 2 of the Code of Ethics and had not been prepared with a due sense of social responsibility to consumers required by Basic Principle 4 of the Code of Ethics.

So what does this all mean? The clear message it sends is that political ads will always be treated as opinion, and that as long as a party has a fleck of a sliver of a shard of justification for its claims, these bodies will not call them out even if their ads are very seriously misleading and misinforming people about issues that are pivotal to the election.

That means it’s up to the media to do that job.

Stephen Price is a barrister specialising in media law, practising in Wellington. This post was first published on his blog, medialawjournal.co.nz