Press Council unanimously finds fault with the NZ Herald's electoral finance campaign

News release 18 April 2008

Coalition for Open Government

The Coalition for Open Government is delighted that the Press Council has upheld its complaint against the NZ Herald's Electoral Finance Bill campaign.

The Press Council found that the Herald's front-page editorial last year contained a "mis-statement of fact", which the paper should have promptly corrected.

Coalition spokesperson Steven Price said the Press Council's ruling showed once again that the public were not well-served by the reporting on the Electoral Finance legislation. "We strongly support the Herald's right to comment on this important law," he said. "But it's vital that the media doesn't mislead the public about the basic facts. We think the Herald was exaggerating the problems with the bill in order to bolster the paper's campaign against it."

This is the first time the Press Council has ruled that such a prominent, vigorous and sustained campaign by a newspaper contained a significant inaccuracy.

The editorial was published under the banner headline: "DEMOCRACY UNDER ATTACK Speak now, or next year hold your peace".

The paper asserted that anyone spending any money on electioneering would need to register as a third party to do so. The Press Council said this was wrong. The law only requires those who want to spend more than $12,000 electioneering who need to register - a much smaller group. The law is designed to allow normal debate about issues to go on as usual in election years, with no controls or limits of any kind, and the restrictions on electioneering are geared to telling voters who is behind the ads and ensuring that the ability to participate in political debate doesn't turn on the size of your bank account.

This is not the first example of misleading reporting on the bill. COG's complaints against early coverage of the Electoral Finance Bill on TVNZ and TV3 were upheld by the Broadcasting Standards Authority in February.

The Press Council's decision is set out below.

The BSA's decisions are available at:

http://www.bsa.govt.nz/decisions/2007/2007-093.htm

and

http://www.bsa.govt.nz/decisions/2007/2007-094.htm

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The Coalition for Open Government was reformed for 2007 to lobby for fairer and more transparent electoral finance laws. It supported the thrust of the Electoral Finance Act, though it was critical of some aspects of the law and the way it was passed.

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CASE NO: 1024

ADJUDICATION BY THE NEW ZEALAND PRESS COUNCIL ON THE COMPLAINT OF THE COALITION FOR OPEN GOVERNMENT AGAINST THE NEW ZEALAND HERALD

NOT TO BE PUBLISHED BEFORE 18 APRIL 2008

The Coalition for Open Government complained that two editorials in The New Zealand Herald concerning the Electoral Finance Bill contained inaccurate statements. The complaint is upheld.

Background

The New Zealand Herald ran a vigorous campaign against the passing of the Electoral Finance Bill. Two of its editorials which were part of this campaign are the subject of the complaint by the Coalition.

The Coalition complained to the editor of the Herald about the contents of the editorial on 4 December 2007. In its reply the Herald referred to its considerable news reporting and other editorials during the previous three weeks. This reply caused the Coalition to complain about a previous editorial published in the 20 November 2007 edition.

The December editorial appeared on the front page under the heading:

"democracy under attack

Speak now, or next year

hold your peace"

The words in the December editorial to which the Coalition objects were:

"From next month until a probable November election, any person or group wanting to promote an issue of concern would face a legal and bureaucratic minefield. For the right to spend their money they would need to register as a "third party", file declarations about donors and expenses and keep within a spending limit of $120,000, just 5 per cent of the amount MPs' parties may spend."

The editorial contained quotes from other newspapers which supported the editor's view.

The second editorial complained about had appeared previously on 20 November 2007 in its normal position on the perspectives page. It was headed:

"Electoral bill still an outrage"

The editorial appeared after the Select Committee had proposed amendments to the Bill which alleviated some of the public concern about the proposed legislation.

The part of the November editorial which is subject to the complaint read:

"The bill still seeks to control not just donations to parties and their spending but also the campaigns that any other group in the community might mount for the purpose of speaking to voters. To spend their own money at any time in election year they will have to register themselves as "third parties", make financial declarations about their donors and expenses, and keep within a statutory spending limit. The committee has doubled their spending cap to $120,000 but that is only 5 per cent of the amount permitted to parties."

The Complaint

The Coalition accepts the Herald's right to run a campaign and to express its views. However, it complains that the editorials mis-state a key fact which "serves the paper's purpose in highlighting the ill effects of what it regards as an odious bill. But because its error greatly exaggerates those ill effects, the editorials mislead readers."

The Coalition is concerned about the following words in the December editorial:

any person or group wanting to promote an issue of concern would face a legal and bureaucratic minefield. For the right to spend their money they would need to register as a "third party".

The point at issue is that under the revised bill, no person or group will have to register as a third party unless they want to spend more than $12,000 on election advertisements. In the Coalition's view most groups looking to take part in an election debate do not spend more than $12,000 and use relatively inexpensive means of participating, namely press releases, websites, letters to the editor, comments in the media or organised marches. The editorial suggests that everyone will need to register and this is not correct.

In reply, after the Herald had made the concessions referred to below, the Coalition made the following submissions:

(a) The error was a significant one because it appeared on a rare front page editorial; had an alarming banner headline emphasising the gagging effect of the bill on everyone; it repeated an error in an earlier editorial; the error formed part of the foundation of a prominent, protracted and critical campaign by the Herald; it related to a significant piece of legislation affecting the workings of the national democracy; and the error was published at a crucial time while the bill was going through Parliament.

(b) In the Coalition's view the three previous articles were insufficient to alleviate the Herald from responsibility for its errors. They were not in the same papers as the editorials, one of which was a front page editorial, and they did not draw attention to the errors in the editorials. In response to the Herald's submission that the error "does not undermine our general view of the shortcomings of the bill", the Coalition believed that was a matter of opinion and the Herald should have properly provided the correct information to its readers to let them make up their own mind, particularly as the Herald was taking an openly partisan stance itself.

The Herald's Response

The Herald in its response conceded that the Coalition has a point but, although it is not trivial, it is by no means as serious as the Coalition makes it out to be. The Herald believes that the mitigating factors are overwhelming. It does however concede that the November editorial was misleading as it mentioned the doubling of the spending cap from $60,000 to $120,000, but did not mention the $12,000 threshold for registration, leaving it open for readers to assume that anyone spending any money, would have to register.

The Herald states that when it received the complaint relating to the December editorial, it was not inclined to oblige the Coalition because the key phrase in the passage referred to was "to promote an issue of concern". Its view was that no third party would be able to promote a cause effectively for less than $12,000 and would therefore be required to register. The allowable amounts for third parties were, in the Herald's opinion, so small by comparison that no third party would be able to promote a cause effectively. It had made this point previously in an editorial on 13 August 2007 when the registration threshold was $5,000 and the maximum spending cap, $60,000. Having made the point that no third party would be able to promote a cause effectively, it saw no necessity to refer to the threshold as it did not regard the $7,000 increase as sufficient to change its opinion.

The Herald also notes that the $12,000 threshold figure had already appeared in its news columns three times before the Coalition made its first complaint.

The Herald submitted that its error was not serious or significant because:

(a) The increase of the threshold to $12,000 does not undermine its basic position. That sum falls well short of the amount required to promote a cause effectively. It refers to the Electoral Commission comment that $40,000 would be needed before a campaign would begin to register. It agreed with that assessment. If it overlooked the matter in its editorials it was rather because the matter was relatively unimportant to it and it had already made the point.

(b) A further complication is that it is not correct as the Coalition says that "no person or group will have to register unless they want to spend more than $12,000 on election advertisements". There is a threshold of $1,000 for anyone who wishes to run an advertisement that refers to a candidate. This minimizes the consequences of the Herald's error because the statement that "anyone will have to register" is much closer to the truth than no-one will have to register unless they spend more than $12,000. This more realistic assessment of the significance of the $12,000 threshold mitigates the effect as does its coverage as a whole.

Discussion

The Herald has acknowledged it erred, but says that the error was not significant and that factors mitigate the effect of its error. It accepts that it was not trivial.

The Herald was entitled to run the campaign which it did against the Electoral Finance Bill. This is accepted by the Coalition. However, comment or advocacy as this was must be based on fact. In this case, as the Herald has acknowledged, it mis-stated the fact. The need to register for third persons only applied to those who wished to spend more than $12,000 on advertising.

The Council accepts that it is probably correct that any person or group wanting to promote an issue of concern would be required to spend more than $12,000. However, this is not the point. The editorial suggested that anyone who wished to promote an issue of concern would need to register as a third party. The failure to note the $12,000 threshold was a mis-statement of fact, which in the Council's view was not minimised by the words "to promote an issue of concern".

Nor is it sufficient in the Council's view to say that the correct amount had been mentioned on other occasions. The December editorial was given prominence on the front page, and although some of the readers would have been aware of the $12,000 threshold, many would have not. In the circumstances, the other articles and editorials cannot be relied upon in support of a submission that readers were not misled.

It is noted that the Herald now includes in its potted summaries the $120,000 spending cap, the $12,000 threshold and the $1,000 threshold which applies to naming candidates. The Herald has taken appropriate steps to subsequently mitigate its mis-statements.

Conclusion

For the reasons given, the Council finds that the omission of a significant detail led to inaccurate statements being published in two of The New Zealand Herald's editorials and the Council upholds the complaint.

The Council is also of the view that in this particular case, a prompt correction given reasonable prominence, would have been an acceptable acknowledgement of its error.

Press Council members considering this complaint were Barry Paterson (Chairman), Aroha Beck, Ruth Buddicom, Kate Coughlan, Penny Harding, Keith Lees, Clive Lind, Denis McLean, Alan Samson and Lynn Scott.

ENDS

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