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Public Interest Law Journal of New Zealand |
Last Updated: 18 February 2023
104 Public Interest Law Journal of New Zealand (2021)
1014
Public Interest Law Journal of New Zealand
(2021) 8 PILJNZ 104
ARTICLE
The Advertising Standards Authority and the Self-Regulation of Misleading Political Advertising on
Social Media: The Need for a Stricter Approach to Protect Aotearoa New Zealand’s Democracy
MAISY BENTLEY*
Since its presence in early forms in the late 1990s, social media has become a coordinating tool for nearly all of the world’s political movements. Advertising by political parties on social media is now commonplace. Public discourse about misleading political information on social media is growing. So too are concerns about the impact this has on democracy. In Aotearoa New Zealand, the Advertising Standards Authority, through a self-regulation system, has the power to regulate political advertising on social media. However, complaints about misleading political advertisements are upheld at a rate that is almost two-thirds lower than other types of complaints made to the Advertising Standards Authority. This article assesses the reasoning that the Advertising Standards Authority uses to adjudicate claims that a political advertisement on social media is misleading. This article argues that the Advertising Standards Authority’s approach is too lenient and that key elements are not congruent with social science evidence. Misleading political advertising can harm democracy, and the information infrastructure of social media exacerbates such harm. In light of this, a stricter approach to misleading political advertising on social media is needed. The approach advocated for in this article includes five additional points of consideration that should be added to the Advertising Standards Authority’s Guidance Note on Advocacy Advertising. Despite creating a greater restriction on free speech, such an approach is justified in light of the demonstrable threat of harm.
* BA/LLB(Hons) student, Te Herenga Waka Victoria University of Wellington. I would like to thank my supervisor Steven Price for his feedback, guidance and encouragement during the process of producing this research.
I Introduction
The harms of misleading political advertising on social media have manifested themselves across the globe in recent years: protests, demonstrations and even insurrections have resulted. Restraining misleading political advertising on social media is essential given the “critical threat to public life” that it poses.1 Aotearoa New Zealand is not immune to this threat. Although we are fortunate to have a body—the Advertising Standards Authority (ASA), whose jurisdiction extends to social media—misleading political advertisements continue to occur in Aotearoa New Zealand. With reference to a case study on an advertisement about petrol prices posted to the National Party’s social media channels,2 this article demonstrates the reality of the threat by assessing the reasoning used by the ASA to adjudicate complaints about misleading political advertising on social media. Then, a statistical analysis of all complaints made to the ASA about political advertising on social media illustrates that the ASA upholds such complaints at a rate that is nearly two-thirds lower than that of any other type of complaint.3 Once the presence of this threat is established, an analysis of the ASA’s reasoning shows that these conclusions are often inconsistent with social science evidence about what misleads consumers. To address this threat, this article proposes an alternative, stricter approach, which can be realised by adding five additional points of consideration to the ASA’s Guidance Note on Advocacy Advertising.
<https://www.facebook.com/NZNATS/posts/3277327968949442>; and NZ National Party (@NZNationalParty) “This Government is fleecing New Zealanders through petrol taxes and Jacinda Ardern is the Fleecer-in-Chief.”
<https://twitter.com/NZNationalParty/status/1202349076336889856>.
II The Advertising Standards Authority
Before analysing how the ASA applies its codes in response to complaints, it is necessary to summarise the ASA’s objectives, codes and complaints process. The ASA is a self- regulatory body.4 It is funded by the advertising and media industries.5 The system it implements is complementary to the legislative framework.6 Broadly, the ASA has three explicit objectives. First, the ASA maintains proper and generally acceptable standards of advertising to ensure that advertising is not misleading or deceptive. Secondly, it promotes effective self-regulation. Finally, the ASA established and funds the Advertising Standards Complaints Board (the Board) and the Advertising Standards Appeal Board (the Appeal Board).7 Throughout this article, any reference to “the ASA” means all three of these bodies together.The ASA’s jurisdiction extends to social media.8 The ASA’s Guidance Note on Identifying Advertising includes a broad definition of advertising, defining it as:9
... any message, the content of which is controlled directly or indirectly by the advertiser
... with the intent to influence the choice, opinion or behaviour of those to whom it is
addressed.
A The Complaints process
Consumers complain to the Board when they believe an advertisement breaches the Advertising Standards Code (the Code).10 The Board determines whether the advertisement has breached the Code.11 If the Code has been breached, a complaint is upheld and the advertisement must be removed or amended,12 though decisions can be appealed to the Appeal Board.13 The ASA cannot enforce takedown or amendment requests.14 However, “[t]here is invariably compliance”.15
B The Advertising Standards Code and Advocacy Principles
The purpose of the Code is to “ensure that every advertisement is a responsible advertisement”.16 The Code is made up of two principles: “Social Responsibility” and “Truthful Presentation” (the Advocacy Principles).17 The Advocacy Principles apply to
(September 2020) at 1.
13 At 906–907.
14 At 906.
political advertisements, which the ASA refers to as “advocacy advertising”.18 Each principle is supported by rules that are “[e]xamples ... of how the principles are to be interpreted and applied”.19 Each rule is supported by guidelines that further “explain a rule”.20 In addition, the Code is accompanied by guidance notes that “provide interpretation assistance” and are “to be read in conjunction with” specific rules.21 Relevant to this article, the “Guidance Note on Advocacy Advertising” captures the Advocacy Principles and “is to be read in conjunction with Rule 2 (e)”, which is explained below.22 The Advocacy Principles include five points:23
III The ASA’s Decision on the Petrol Advertisement
Now that the ASA’s objectives, codes and complaints process have been traversed, this article will assess how the ASA applies its codes to complaints about misleading political advertising. This analysis will be done by reference to a National Party of New Zealand advertisement posted on its Facebook and Twitter pages.24 The advertisement featured a bar graph. The graph compared the average price of petrol during a nine-year-period when the National Party was in government, with the average price of petrol during a one- month-period when the Labour Party was in government.25 The graph disproportionately displayed the price of petrol and the amount of tax paid on petrol under the Labour
18 At 13.
Government:26 it exaggerated the price four-fold.27 However, the correct figures were listed in the advertisement.28
When the Board assessed the advertisement, it applied the Code and Advocacy Principles to find that the petrol advertisement posted by the National Party in December was not misleading.29 The Appeal Board used similar reasoning to dismiss an appeal of that decision.30 First, the Board assessed whether the advertiser’s identity was clear, and concluded that it was.31 Secondly, the Board concluded that it was an advocacy advertisement—so, r 2(e) applied.32 Broadly, r 2 is concerned with truthful representation. To ensure this, r 2(e) requires that:33
Advocacy advertising must clearly state the identity and position of the advertiser. Opinion in support of the advertiser’s position must be clearly distinguishable from factual information. Factual information must be able to be substantiated.
In the course of this assessment, the ASA identifies a consumer takeout, which is what the consumer would likely perceive when viewing the advertisement.34 The ASA’s objective through r 2 is to prevent consumers from being misled.35 Therefore, the consumer takeout is likely to weigh heavily on the Board’s decision. The consumer takeout is additionally important as it can affect what is required to substantiate a statement. The ASA will decide whether a consumer would view something as a statement of opinion or fact. Where an advertisement is deemed to state something as a fact, the Board identifies what consumers would perceive the statement of fact to be—not, for example, what the advertiser claims they were trying to portray.36 The Board then assesses whether that fact is substantiated.37 For example, saying a capital gains tax was “on Labour’s Agenda” would be interpreted by most people to mean it was on a list of ideas for discussion, “not that [it] would become law”.38 Therefore, to substantiate the statement and demonstrate that it was not misleading, the advertiser only had to show that the Labour Party had indicated it would consider a capital gains tax.39 The advertiser did not have to show that it would at some point come into force.40The Board decided the consumer takeout from the petrol advertisement was that “petrol was considerably more expensive under the current Labour Government and consumers were paying more tax on petrol than when the National Party were in power”.41
With petrol being generally more expensive at the time of the advertisement, the ASA’s interpretation of the statement from the consumers perspective could be substantiated. However, Thomas Lumley, a Professor of Biostatistics at the University of Auckland, found that the graph specifically portrayed that, under Labour, the price of petrol was 61 per cent more and tax was 92 per cent more.42 If the Board had recognised this as the consumer takeout, then it would be impossible to substantiate—because it was not true.
The Board decided that the advertisement was not misleading because the correct figures were featured on the graph.43 A minority of the Board disagreed, arguing “it was reasonable for an audience to assume the visual element of a graphic comparison would match the numerical data it represents”.44 The Appeal Board agreed with the majority.45 It noted that although “the visual impact of the graphic may have more impact than the quoted figures for some consumers”, it had to consider the advertisement in its entirety, which showed the figures used.46
The Board noted the placement of the advertisement on the National Party Facebook and Twitter pages. It said that:47
... the placement ... meant the audience was likely to have a political interest in policy and performance comparisons ... and an appreciation of the political stance a party’s own Facebook and Twitter platforms were likely to present.
A minority disagreed and said that:48
... the medium and political advocacy arena did not save the advertisement from potentially misleading some consumers who did not take the time to examine the data figures which accompanied the graphic representation.
However, the Appeal Board agreed with the majority and went further to say that “the placement limited the advertisement’s reach” and “the advertiser had not taken steps to further distribute the advertisement”.49 It then stated that the fact the advertisement reached a wider audience through sharing on the social media platform, was outside the advertiser’s control and intended audience.50 Neither board explained how an interest in policy and performance helped to prevent the advertisement from being misleading, nor did they present evidence to substantiate this view.51The Court of Appeal has held that the ASA, “in carrying out its public regulatory role ... must be regarded as exercising public power”.52 Therefore, the ASA has a legal obligation to comply with the New Zealand Bill of Rights Act 1990 (the Bill of Rights).53 The ASA’s self- regulatory system fetters free speech in its ability to request the amendment or takedown of advertisements that are deemed to breach the Code.54 The ASA takes a boilerplate
approach to the Bill of Rights. Most decisions, including that of the petrol advertisement, state the Board’s position on political advertisements in identical terms. They say that these advertisements:55
... were not only acceptable but encouraged, as they were an essential and desirable part of the functioning of a democratic society. The Complaints Board also observed that in a free and democratic society, differences of political opinion should be openly debated without undue hindrance or interference from authorities such as the Complaints Board, and in no way should political parties, politicians, lobby groups or advocates be unnecessarily fettered by a technical or unduly strict interpretation of the rules and regulations. Therefore, the Complaints Board considered the rest of the complaint in conjunction with this liberal interpretation under the application of the Advocacy Principles.
IV The ASA’s Broader Approach to Adjudicating Misleading Political Advertising on Social Media
Both quantitative and qualitative research conducted in the course of producing this article demonstrate that the reasoning used by the ASA to determine complaints about the petrol advertisement reflects the ASA’s broader approach to misleading political advertisements on social media.
Complaints about social media advertisements make up a minority of complaints received by the ASA, but have been increasing since 2012.56 All complaints about political advertising on social media claim that the advertisement is misleading, compared to only 45 per cent of all complaints received by the ASA.57 Despite this, the ASA upheld complaints about political party advertisements at a rate of only 12.5 per cent between 2017 and 2019,58 compared to upholding, on average, 35 per cent of all complaints received during that three-year period.59
advertisement to be removed, a complaint must be upheld. So, these figures have been treated as analogous with complaints being upheld. The 35 per cent rate cited in this text was calculated
The ASA’s other decisions use similar reasoning to the petrol decision.60 For example, in 2019, the National Party posted an advertisement on social media claiming that Labour had put “75 times more money to the Provincial Growth Fund than it has into Pharmac”.61 There had been 75 times more new funding allocated to the Provincial Growth Fund, but there had not been, overall, 75 times more money given to the Provincial Growth Fund.62 The Appeal Board found it was not misleading.63 It noted the placement of the advertisement on the National Party Facebook page.64 The Board said consumers would likely have a “political interest in budget allocations and an appreciation of the political stance a party’s own Facebook page was likely to present”.65 This affected the consumer takeout of the advertisement, and in turn affected the level of substantiation required.66 The Appeal Board found:67
... the substantiation provided by the Advertiser, particularly within the context of an advocacy advertisement, could support the view that in the 2019 budget the Provincial Growth Fund continued to [receive] its budgeted allocation of $1 billion ... while Pharmac was only allocated an “extra” or “new” $40 million over 4 years. ... [L]ooking at the appropriations in a wider context ... helped to justify the “75 x more” statement made in the advertisement.
Similarly, in 2017, the National Party posted a video to its Twitter that outlined “Labour’s Tax Agenda”.68 The advertisement used the Labour Party logo and the colour red.69 The advertisement attracted several complaints that it would lead consumers to think that these taxes were the Labour Party’s official stance.70 Such a statement could not be substantiated.71 Like other decisions referenced, the Board said that the context, including public debate and placement on the Twitter page, was crucial to its decision.72 Relying on that context, the Board held that the consumer takeout from this advertisement would be that the statements are the National Party’s opinion on the Labour Party’s tax policy, not the Labour Party’s official stance.73 The advertiser, therefore, did not have to substantiate its comments and the complaint was not upheld.74
by the author by averaging the rate at which the Advertising Standards Authority changed or removed advertisements as a result of complaints received during this three-year period.
62 At 2–3.
These decisions reflect a broader pattern. Before 2017, no complaints of this nature were received. In 2017, there were 15 complaints about social media advertising.75 Five of these complaints related to advertisements by political parties.76 All five complaints concerned claims that the advertisements were misleading. Four of the complaints had no grounds to proceed.77 One of the complaints was not upheld.78 All five of these decisions adopted a similar approach used to adjudicate the complaints about the petrol advertisement. All five interpreted the consumer takeout broadly and resulted in a low level of substantiation being required.
Of the 603 total complaints to the ASA in 2017, 55 per cent concerned misleading advertising.79 37 per cent of those advertisements were removed or amended.80 Similar figures were seen in 2018 and 2019.81 In comparison, all complaints about political party advertisements on social media concerned claims that the advertisements were misleading. So, political advertisements are more likely to be complained about as being misleading. However, the ASA is far less likely to uphold a complaint about misleading political advertising. In 2017, none of these complaints were upheld; in 2018, one complaint was partially upheld; and in 2019, two complaints were upheld.82 Therefore, complaints about misleading political advertising are upheld at a rate of 12.5 per cent.83 This is almost two-thirds lower than the rate at which other complaints made to the ASA are upheld.
This quantitative assessment shows that the ASA is less likely to uphold complaints about misleading political advertising on social media. The various examples used show that the ASA nearly always deploys similar reasoning to that used in the petrol decision. This means that criticisms that can be levelled at the petrol decisions can also be levelled at the ASA’s adjudication of complaints about misleading political advertising on social media more generally.
V The Consequence of the ASA’s Current Approach: Harm
The approach that the ASA takes to adjudicate complaints about misleading political advertising on social media has been outlined through a qualitative assessment of the petrol decision and a quantitative assessment of how this approach is reflected more broadly in the ASA’s adjudication. In assessing the ASA’s approach, identifying flaws and proposing alternative considerations to address these flaws is essential, because misleading political advertising on social media can cause harm by manipulating public opinion and undermining trust in democracy.Philip Howard, Director of the Oxford Internet Institute, University of Oxford and co-author of a study (with Samantha Bradshaw, researcher at the Oxford Internet Institute) about political misinformation across 70 countries, states: “[t]he manipulation of public opinion over social media remains a critical threat to democracy”.84 For some countries, the threat of misinformation is related to foreign interference.85 While that is not the focus of this article, the report details similar harms to citizens and their ability to engage in democracy as a result of misleading information, regardless of its source.86
This harm is twofold. First, advertising is shown to “have a measurable effect on consumer behaviour”.87 When advertising is misleading, consumers are unable to exercise their autonomy due to a lack of full and accurate information.88 Autonomy is essential to a functioning democracy where elections must be free, fair and informed.89 More specifically, misleading information can play a role in determining the course of elections.90 Democracy presupposes an informed and autonomous electorate.91 Therefore, where false advertisements mislead voters, they interfere with the process upon which democracy is based.
Secondly, the purpose of regulating misleading advertising is to prevent confidence in advertisers from being undermined.92 In the case of misleading political advertising, this could undermine confidence and trust in democracy.93 Howard and Bradshaw, in their co-authored study, affirm this threat.94 They say that misleading political information used on social media to manipulate public opinion has the potential to “undermine trust in the
<oii.ox.ac.uk>.
media, public institutions, and science”.95 Consumers are increasingly aware of misleading information.96 For example, 48 per cent of Aotearoa New Zealanders are concerned about mistakenly spreading misinformation, and many are concerned about family members not being able to identify it.97
Such harms are not theoretical. The United Kingdom’s parliamentary inquiry into disinformation and fake news stated:98
Much has been said about the coarsening of public debate, but when these factors are brought to bear directly in election campaigns then the very fabric of our democracy is threatened.
Ultimately, social media can cause great harm by falsely manipulating public opinion and undermining trust in democracy. Considering this harm, it is essential to scrutinise the approach to regulating misleading political advertising and suggest improvements in light of that scrutiny.
VI Assessing the ASA’s Approach to Adjudicating Complaints about Misleading Political Advertising on Social Media
In light of social science evidence, the ASA’s approach to the petrol advertisement was too lenient. In applying this approach, the ASA misconstrued the context of the advertisement—in particular, the relevance of public discourse and the target audience. The ASA’s consumer takeout, which weighs heavily on its decision, does not align with evidence about consumer behaviour. Finally, the ASA did not give due regard to the shifting role of political parties on social media. This approach is also reflected in its response to other claims that political advertisements on social media are misleading.99 Again, this is of concern because misleading advertising can harm democracy.100
These flaws in the ASA’s adjudication create the risk that advertisements that can mislead consumers will not be subjected to takedown or amendment requirements. A better, stricter approach that addresses these flaws and mitigates this harm is offered in response to each flaw as it is explained. To assist with the application of this alternative approach, this article suggests that five additional points of consideration should be added to the Guidance Note on Advocacy Advertising. These additional points should be considered when adjudicating complaints about misleading political advertising on social media. Once this new approach has been detailed, the subsequent section will provide justifications for this approach, including addressing counterarguments and accounting for greater infringements on the rights of free speech.
A Consumer knowledge and discourse
... the audience was likely to have a political interest in policy and performance comparisons ... and an appreciation of the political stance a party’s own Facebook and Twitter platforms were likely to present.
But this not supported by fact. In that decision, the Board did not articulate how having an interest or understanding in policy or the political stance presented by a political party’s social media page would prevent consumers from being misled.102 In a different decision, the ASA said that because of this interest, consumers would have a greater knowledge of the public debate and therefore the objective facts and varying opinions on the issue.103 In light of this, the Board said it would be clear to the consumer that the advertisement is simply one of those opinions.104 Under the Code, opinions do not need to be substantiated.105 However, the ASA does not provide evidence for this proposition.It is easier to deploy this reasoning when adjudicating complaints about advertisements on television, radio and similar media. The advertisements will be consumed amongst a variety of advertisements, possibly including competing views on the same issue.106 However, social media has fundamentally different characteristics.107 Advertisements can be micro-targeted to very specific groups, and a combination of manual sharing and algorithms dictate the distribution of unpaid content.108 So, social media users are likely to see advertisements amongst selected or targeted content, rather than a range of views.109
It is arguable that despite consumers viewing social media advertisements in this isolated context, they will be informed about the public debate from other sources. However, half of Aotearoa New Zealand’s population is disengaged from traditional news.110 Facebook has a 16 per cent share of news consumption in Aotearoa New Zealand, whereas newspapers and radio have only 13 per cent and nine per cent, respectively.111 So, in contrast to the Board’s reasoning, the advertisement may be misleading because consumers do not have the public debate or broader context in which to place the statements.
So, a new approach to adjudicating complaints about misleading political advertising on social media should account for evidence about consumers’ knowledge of the public discourse. Such an approach should be reluctant to deem a statement to be an opinion
<www.facebook.com>; and Twitter “About your Home timeline on Twitter” <www.twitter.com>.
only on the basis that a consumer would know it is an opinion because they have access to the objective facts, and other opinions, through the broader public discourse and other news sources.
B Sharing and audience
The Board noted the context of the petrol advertisement on the National Party Facebook Page, and said this was crucial to its decision.112 It held that those who follow the page will have an interest in the party’s policy “and an appreciation of the political stance a party’s own Facebook and Twitter platforms were likely to present”.113 Even if the Board’s argument is accepted, these followers are not the only consumers of the advertisement. Content on social media is often shared by consumers to their networks.114 When those who follow the political party page share the advertisement, it can reach their friends, family and followers who do not follow that page. Further, social media platforms share content to consumers’ News Feeds from pages they do not follow.115This is different from sharing a television or billboard advertisement. In that context, a person would have to reproduce the advertisement by taking a picture or video recording, and make efforts to distribute this. In this context, the advertiser could only foresee and be responsible for ensuring it is not misleading in the original context, not when it is reproduced.116
Despite this, the Appeal Board has said that the sharing of an advertisement on social media is “outside the Advertiser’s control”, so those who view it this way are not considered part of the audience.117 However, in contrast to traditional media outlets, the sharing of advertisements is a direct and foreseeable—if not intended—function of social media advertising.118 Indeed, sharing is built into the very infrastructure of the platforms.119 Advertisers are aware of this and seek to capitalise on it.120 The extensive proliferation of misleading advertising by political parties on social media supports the view that they are aware of its ability to spread widely.121 Evidence shows that political parties’ use of misleading information to manipulate voters is calculated and evidence- based.122
The ASA is correct to note that a central way through which this extended audience will see the advertisement is when it is manually shared by consumers who follow the page.123 However, this is not the only way. Consumers’ News Feeds on Facebook include content about their friends’ activities, including when a friend comments on content belonging to
someone who is not in the consumer’s network, or on content in a group that the consumer is not part of.124 On Twitter, a consumer’s Timeline includes content from pages that the consumer has not followed.125
A better way to categorise the audience is to include this larger pool of consumers. This different categorisation of the audience means it is larger, with different levels of knowledge. The audience will include those who follow the page and so, under the ASA’s reasoning, will know an advertisement is an opinion. But it will also include those who do not follow the page and therefore do not have the additional knowledge or context that the ASA believes those who follow the page to have. Without this context, they are less likely to know that it is an opinion. This group, therefore, could be misled under r 2 of the Code because, to them, opinion is not clearly distinguishable from fact. Further, in these instances, there is more than one consumer takeout: those who follow the page and therefore, in the ASA’s view, will not be misled, and those who see the advertisement through other means. The ASA has held that where there is “more than one consumer takeout”, this indicates that “the advertisement lacked the context and qualification needed to avoid confusing consumers”.126 Therefore, the correct view is that such advertisements could be misleading
C Understanding consumer behaviour
The Appeal Board noted that the visual component of the petrol advertisement “may have more impact than the quoted figures for some consumers”.127 However, it had to “consider the advertisement in its entirety which included the correct figures”.128 It held that because of those figures, the advertisement was not misleading.129The ASA’s role is to prevent consumers from being misled, and this should be central to its analysis. Research has shown that social media users have a “short attention span” and do not examine content closely.130 Further, psychological evidence shows that most users are not good at identifying misleading information.131 In Aotearoa New Zealand, 64 per cent of people say they cannot decipher journalism from rumour and falsehood.132 53 per cent cannot recognise respected sources of information.133 Finally, 52 per cent of Aotearoa New Zealanders admit to unintentionally believing false information, and
48 per cent are concerned about mistakenly spreading false information.134 This evidence—that consumers do not closely examine information—supports the view that using the data displayed in the petrol advertisement to calculate whether the graph visually misrepresented that data is inconsistent with consumer behaviour. In light of this evidence, it can be assumed that most social media users would believe the graph is reflective of the figures and therefore would be misled by the advertisement. When adjudicating complaints, the ASA needs to account for this social science evidence, for the
level of attention that consumers may pay to an advertisement, and for how this affects the advertisement’s potential to mislead the consumer.
D Advocates or information disseminators
The ASA is more likely to find that consumers will know they are viewing an opinion when an advertisement is posted to a political party page, as the ASA believes they will know the “stance” that page will present.135 Statements of opinion do not require substantiation.136 In contrast, evidence shows that political parties’ social media presence plays a dual role as official information channels and advocacy platforms.137 This has made it increasingly difficult for consumers to differentiate between fact and opinion.138Previously, there were clearer channels for communicating factual information, such as press conferences or reports on official stationery.139 This is no longer the case: announcements of policy are just as likely to be made on a Facebook page as they are to be released in an official government document.140 This mixture of uses for social media was documented as far back as 2011 in a parliamentary research paper on “New Zealand Parliamentarians and Online Social Media”.141 This can create an ill-defined boundary between political and official information.142 Therefore, in contrast to the ASA’s view, it has become increasingly difficult for consumers to differentiate between factual information and opinion or advocacy on political party social media pages.143
E Public function and the Bill of Rights
In addition, commercial and political cases require a different approach. This different approach should account for the ASA’s public function. It should also incorporate an analysis of whether upholding the complaint, which will result in an amendment or takedown, is a proportional and justified restriction on free speech. The Code is commercially focussed. The ASA has described it as: “an expression of the business community’s recognition of its social responsibilities”.144 Recognising such social responsibilities and preventing misleading commercial advertising is important. However, misleading political advertising can have far worse consequences.145 The ASA performs an important public function in preventing such consequences. As discussed above, failing to perform that function could harm democracy. The different impacts of allowing misleading commercial advertising compared to political advertising need to be considered when adjudicating complaints.This has particular relevance for the ASA’s consideration of the Bill of Rights. The ASA does not engage in a reason-based proportionality analysis that demonstrates
(Parliamentary Library, 15 February 2011) at 10.
engagement with the individual circumstances: it states its position in identical terms (using the same paragraph) in most decisions.146 Such an approach does not provide assurance that the legal obligation to comply with the Bill of Rights is being met in every case.147 While citizens have the right to free speech,148 rights can be restricted where it is reasonable, prescribed by law, and demonstrably justified in a free and democratic society.149 For a limit to be demonstrably justified, it must be proportionate.150 So, when the ASA upholds complaints, it needs to demonstrate that it has considered whether limiting freedom of expression is proportional and justified.151
Proportionality continues to be relevant in a broader sense. A proportionality analysis requires balancing the right to free speech against what is achieved by limiting it through the self-regulatory scheme.152 The balancing process should include “reasoning rather than an impressionistic process”.153 For the objective and limit to be proportional, they must have a rational relationship to each other, create as little interference as possible with the right and be demonstrably justifiable in light of the objective.154 Preventing harms to democracy is more important than preventing harm to the commercial advertising industry: this is reflected in the strong protections given to democratic rights.155 Therefore, in political and commercial cases, there may be different limitations that are justified and proportional. The ASA needs to recognise its public function, the harms from misleading political advertising and the impact this has on its role, by providing a greater justification for intervening in—and upholding—complaints.
F Fair play and robust debate
The ASA relies on Advocacy Principle four to say that the Code should be interpreted liberally.156 However, the Advocacy Principles note that the Code “should be interpreted liberally to ensure fair play”.157 This is because “robust debate in a democratic society is to be encouraged”, and ensuring fair play facilitates this.158 However, in the ASA’s decisions, applying the Code liberally manifests as allowing an advertisement to remain.159 Instead,
– the Bill of Rights and the Broadcasting Standards Authority” in Jeremy Finn and Stephen Todd (eds) Law, Liberty, Legislation (LexisNexis, Wellington, 2008) 295 at 297.
Stafford, above n 3; and Eakin, above n 3.
the Code’s application should consider whether allowing the advertisement to remain supports fair play or robust debate, as prescribed by the Advocacy Principles.160
Understanding and accommodating free speech, fair play and robust debate in the age of social media is more complex than simply protecting the right to speak.161 Scholars from the Massachusetts Institute of Technology found that, across the world, “falsehood diffuses significantly farther, faster, deeper, and more broadly than the truth ... and in many cases by an order of magnitude”.162 False stories are 70 per cent more likely to be retweeted than true stories.163 Further, true stories take almost six times longer than false stories to reach the same number of people.164 This means there is a lack of fair play. If one side is sharing misleading information while the other is not, it is challenging to engage in fair and robust debate.
For example, in the lead up to the 2017 general election, the National Party launched the tax agenda advertisement discussed earlier in this article.165 The advertisement focused on Labour’s plan to increase tax, including income tax.166 Labour had repeatedly ruled out increasing income tax.167 However, the spread of National’s advertisement made it very difficult for Labour to engage in robust debate and get their perspective heard. As a result, the leader of the Labour Party spent the “week denying the income tax claim” and later “ruled out introducing any new taxes until after 2020”.168
Robust debate requires different opinions to be heard. Misleading advertising on social media spreads further, faster and deeper than the truth. This means there is no fair play and those with opposing views cannot engage in robust debate. The ASA’s adjudication needs to reflect this dynamic: because of the way information spreads on social media, ensuring fair play and robust debate is not always supported by protecting the right to speak.
G Greater explanations
In regards to the petrol advertisement, neither the Complaints Board nor the Appeal Board provided analysis of, or an explanation for, why it categorised the audience as being outside of the advertiser’s control.169 Further, they did not provide analysis of how an interest in policy and performance helped to prevent the advertisement from misleading consumers, or evidence to substantiate this view.170 Finally, neither Board provided any further commentary on why they believed that displaying the correct numbers prevented
164 At 1148.
(ASCAB), above n 30, at 4.
the disproportionate graphic from being misleading.171 They did not, for example, say it was because the numbers were displayed prominently as part of the graphic, or because they were simple numbers that consumers could easily engage with. It is not clear at what point such a graphic, even with the correct figures, may become misleading in the Board’s opinion.
The Board should provide commentary on how the presence or absence of certain features prevents an advertisement from being misleading. This would help advertisers to understand when an advertisement might be classed as misleading and how to avoid this. Further, it would demonstrate engagement with the facts of each case and whether, in light of those facts, a limit on free speech is justified. This is in contrast to the Board’s current approach of repeating its position in identical terms (stating the same paragraph) in every decision.172
H Summary
Despite the ASA’s finding that the petrol advertisement will not mislead consumers, evidence shows that central parts of its reasoning are not congruent with the realities of social media consumption. First, social media advertisements are not consumed in the context of public discourse, so consumers cannot be assumed to have knowledge of public debate on a matter. Secondly, the audience is larger, and has a greater range of knowledge, than that which is accounted for by the ASA. In light of this, there are two different consumer takeouts. Therefore, not all those who view the advertisement will know it is an opinion, nor will all viewers know the stance that the political party page is trying to promote. The ASA has previously said that varying consumer takeouts from one advertisement means it is misleading. Thirdly, consumer behaviour does not closely scrutinise social media content. Not closely scrutinising an advertisement may mean the consumer is misled. The ASA is not holding an advertisement to be misleading in these instances as it is not correctly accounting for consumer behaviour. Fourthly, channels of official and political information are often merged. This means that consumers are less likely to know when something published is an opinion and are more likely to view it as a fact, which must therefore be substantiated or else held to be misleading. Fifthly, the ASA does not acknowledge its public function: specifically, that preventing misleading political advertising is of greater significance than stopping misleading commercial advertising, so it may warrant greater restrictions. Sixthly, the ASA is required to interpret the Code liberally to ensure fair play and robust debate. At present, it only interprets it liberally. Interpreting it liberally to ensure fair play and robust debate may mean being stricter on misleading political advertising, given what social science evidence says about how quickly misleading information spreads, and how difficult it is to provide a countervailing view. Finally, the ASA does not provide much explanation for the decisions it takes, leaving advertisers in the dark about when something may cross the line into “misleading”, and therefore creating a large grey area.
I Amending the Guidance Note on Advocacy Advertising
To address the criticisms identified in the preceding section and implement the alternative approach that has been advanced at the same time, this article suggests that five additional points of consideration should be added to the Guidance Note on Advocacy Advertising. These points should be considered by the Board when it is adjudicating complaints about misleading political advertising on social media. The additions are as follows:
VII Justifications for a Stricter Approach
This alternative approach encourages the ASA to draw on social science evidence about consumer knowledge and behaviour. In doing so, the ASA should take a stricter approach to potentially misleading advertisements. This is justified because it aligns better with the ASA Code and Guidance Notes, and mitigates the potential harms from misleading political advertising on social media.
A Giving effect to the ASA’s Code and Guidance Notes
The approach advocated in this article gives better effect to the ASA’s objectives, Code and Guidance Notes. Social scientists have noted that it is increasingly difficult for consumers to know when political parties are presenting fact or opinion.173 Under r 2 of the Code,
opinion and fact must be distinguishable.174 So, if consumers cannot distinguish if an advertisement is fact or opinion, then the complaint should be upheld.175 However, under the ASA’s current approach, such complaints are often not upheld.
The ASA’s current approach focuses on interpreting the Code liberally rather than “liberally to ensure fair play”, as the Advocacy Principles prescribe.176 It focuses on protecting the right to speak rather than considering the ability of misleading advertisements to silence one side of the debate due to its faster, deeper and broader spread.177 Correctly considering these factors, as is advocated in this article, will better give effect to Advocacy Principle four by more accurately ensuring fair play and robust debate.178
The level of substantiation required in the decision regarding the Provincial Growth Fund advertisement was low.179 The Board noted that the substantiation “could support the view” made in the advertisement and that the context “helped to justify” the statement.180 Factors considered when assessing substantiation include the type of claim—for example, this claim relates to political speech, so the ASA may be more liberal with the level of substantiation required.181 However, the Guidance Note also requires the Board to consider the consequences if the claim is false, and the benefits if it is true.182 As has been outlined in this article, the consequence of political parties making false claims on social media can be very harmful. The approach advocated in this article therefore encourages the ASA to better account for these consequences of false claims, as is required by the guidance note.
The harm from misleading advertising is recognised in the Code and the power of the ASA to restrict speech, including political speech.183 The Code was considered and created carefully to achieve that purpose and address that harm without creating unnecessary infringements on speech.184 Therefore, an approach that is consistent with the Code will achieve its purpose of preventing misleading advertisements without unnecessary infringements.
B Alternative approach justified despite limits on speech
This stricter approach creates a greater restriction on the freedom of expression. The speech in the decisions that the ASA has adjudicated is highly protected speech. Not only is it political speech, it is generally valuable speech that discusses matters of public interest.185 Political speech is “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”.186 Aotearoa
Sweet, above n 3; Thomas, above n 3; and Trlin, above n 3.
Freedom of Speech (2nd ed, Oxford University Press, Oxford, 2005) at 162.
New Zealand courts have taken a wide interpretation of political speech, noting that “[i]n a representative democracy it would not be right to view information relevant to the democratic process too narrowly.”187
Political speech is highly valued speech.188 The Privy Council has said that “[p]olitical debate is at the core of representative democracy.”189 The High Court has said this is because an individual’s electoral rights cannot be “properly exercised without sufficient knowledge about policies and candidates”.190
Three predominantly accepted theories validate the protection of speech:191 first, that speech allows for individuals’ self-development of thought and autonomy;192 secondly, that such speech contributes to the marketplace of ideas, where truth will emerge from the competition of ideas in a free and transparent public discourse;193 and finally, that political speech is valuable to democracy and society.194 On the surface, it appears that the ASA’s approach and its resistance to fetter such speech is justified. In the alternative, a stricter approach is justified. This is because, as will be explored in the following subsections, in this context, the marketplace of ideas does not work as effectively: breathing space is maintained, the chill effect is not large and the harm is severe.195
1 Harm
Political speech is very important.196 There are reasons to protect even false speech,197 such as to prevent deterring citizens from entering debates.198 However, the harm caused by misleading political advertisements on social media is severe.199 There must be a point at which even political speech creates more harm than benefit. Even when the impact of chill and breathing space are considered, the harm from misleading political advertisements on social media is significant enough to justify limiting that speech in the manner that this article has proposed.
Political speech is protected on the basis that it is constructive rather than obstructive to the operation of democracy.200 However, misleading political advertising on social media can “manipulate and oppress the voter”.201 When discussing balancing the right to speak freely with the rights of voters to engage in an electoral process free from manipulation and oppression, the Supreme Court of Canada said that although polticial expression “warrants a high degree of constitutional protection, there is nevertheless a
193 At [13.6.3].
194 At [13.6.8] and [13.6.12].
danger that political advertising may manipulate or oppress the voter”.202 The High Court in Watson v Electoral Commission was faced with the challenge of ensuring that a limit is not so over-inclusive as to chill protected political speech, but not so under-inclusive as to deprive the electoral process of integrity.203 The Court said that “it has been long recognised that those two sets of rights must accommodate each other”.204
Any limit on rights must be demonstrably justified to serve an objective that is important and significant enough to limit the right.205 The highly protected position of this speech means that the objective must also be very important and significant. The harm from misleading political advertising on social media is severe and demonstrable.206 Misleading advertisements manipulate and oppress voters by depriving them of the autonomy to make a free and informed choice.207 Preventing such harms is a significant and important objective. As these cases show, where speech may manipulate or oppress the voter, it can be limited.208 The two rights must accommodate each other and, because of the harm demonstrated from this form of advertising, a stricter approach is a reasonable accommodation.
2 Marketplace of ideas
An argument against a stricter approach is that the freedom of speech allows the marketplace of ideas to function. However, due to the nature of social media, the marketplace of ideas does not function properly, so this counterargument does not possess much weight. The marketplace of ideas allows free and transparent public discourse from which ideas and accepted truths will emerge.209 However, in the context of misleading political advertising on social media, the marketplace of ideas does not work as effectively. So, as a rationale for the protection of free speech, the marketplace of ideas is not as robust or relevant.
Consumers do not engage with social media content before sharing it.210 So, while content may appear to have widespread acceptance, those sharing it have likely not challenged it or accepted it as truth, as the marketplace of ideas theory presumes.211 In addition, social media advertisements are consumed in an isolated context, giving people the ability to avoid public discourse.212 Further, misleading advertisements have a “pernicious effect ... on the quality of public debate”.213 It is difficult for consumers to consider viewpoints when the marketplace is populated with misleading statements “from seemingly authoritative sources”.214 Finally, rather than supporting a functioning
202 At 829.
203 Watson, above n 90, at [82]. 204 At [108].
marketplace of ideas, misleading advertisements can force opponents to respond to specific statements or engage in similar tactics.215 As a result, democratic debates “degenerate into cycles of attack and denial” rather than engagement on substantive issues.216
3 Breathing space and chilling effect
A further argument against a stricter approach is that although restricting certain kinds of speech can be warranted, the collateral damage to other forms of speech may undermine those restrictions. However, this counter argument is not valid in this context. First, the chilling effect from restrictions imposed by the ASA is insignificant as the penalties are small. Secondly, if chill is created by a stricter approach, it may in fact bring social media in line with other forms of media.
In discussing political speech, free speech and the potential limits on both, the notion of breathing space is relevant. In New York Times v Sullivan, Brennan J famously observed that breathing space is necessary because the “erroneous statement is inevitable in free debate”.217 To put the risk and burden of such errors onto speakers of statements creates the risk of self-censorship and discourages robust debate.218 In other words, it creates a chilling effect where people are worried to speak for fear that the threat of sanction and the encroachment on free speech is broader than anticipated.219
The worst harm that could result from contravening the ASA Code is a takedown request.220 There are no costs, litigation, fines or retribution. There is no large burden or risk such as a criminal sentence. Because this burden is so small, it is unlikely that advertisers will self-censor where an advertisement is in a grey area, or it is unclear how the Code will apply. Therefore, this small burden reduces the chilling effect. So, even when a stricter approach is taken, it may not create a chilling effect, or the effect will be small.
Andrew Butler and Petra Butler have noted there is an argument to be made that sanctions and their potential chilling effects do “not inhibit responsible journalism”, but instead that they “dissuade media from acting recklessly in publishing content that has not been thoroughly researched”.221 A similar effect may be seen in advertising: social media advertising bypasses broadcasting gatekeepers who traditionally check for compliance with the Code and consider general principles of sound advertising.222 This is a form of the chilling effect, as gatekeepers engage in self-censorship where application of the Code is not clear because they are cautious not to be involved in a breach of it. This system is not occurring on social media, so there is already a greater ability for those advertising on social media to speak freely without self- or industry-enforced censorship. In light of this, even if a chilling effect is created, it may not create as large a burden on free speech, when accounting for the greater freedoms that already exist in this medium.
215 William P Marshall “False Campaign Speech and the First Amendment” (2004) 135 U Pa L Rev 285 at 294.
216 At 294.
If that level and style of chill is accepted across those media, it should be accepted on social media, and may serve to level the playing field between social media and other media.
Finally, an approach that provides more analysis and justification, as suggested in this article, limits the chilling effect. Providing such analysis will help advertisers to better understand whether an advertisement will be found to be misleading. If advertisers have greater certainty about what is likely to get taken down, then it narrows the range of advertisements that might be affected by the chilling effect.
A stricter approach creates a greater restriction on speech. However, in the context of social media, the marketplace of ideas does not work effectively, breathing space is maintained, the chilling effect is not large and the harm is severe. Therefore, this restriction is justified.
VIII Conclusion
When the ASA found that the petrol advertisement was not misleading, it continued its reluctance to uphold complaints regarding misleading social media advertising by political parties.223 Similar reasoning is reflected in most decisions regarding misleading political advertising on social media and the low rate at which complaints of this nature are upheld.224 The ASA’s approach is too lenient and not congruent with social science evidence.Misleading political advertisements on social media are harmful to consumers and democracy. In light of that harm, an alternative stricter approach, including five additional points of consideration, should be added to the Guidance Note on Advocacy Advertising. These will guide the ASA in adjudicating complaints about misleading political advertising on social media. These include: considering the isolated context in which social media advertisements are consumed; acknowledging that sharing of content is central to the function of social media; when applying r 2(e) of the Code, considering the dual role of political parties as both information disseminators and advocacy groups; considering the rapid and broad dissemination of misleading advertising on social media preventing robust debate; and finally, when upholding complaints, demonstrating that upon engagement with the particular facts, a limit on speech is proportional and justified.
Such an approach will likely result in more advertisements being found to be misleading. This fetters the highly protected political speech contained in advertisements. Such restrictions are justified in light of the “critical threat to public life” that misleading social media advertising poses.225 In response to research on the global proliferation of misleading political information on social media, political scientists and legal scholars argued that “[w]e must redesign our information ecosystem in the 21st century” to mitigate the harm it causes.226 By taking an evidence-based and cautious alternative approach, the ASA can play the role entrusted to it in ensuring the information ecosystem is fit for the 21st century. Doing so is essential to mitigating the threat that misleading political advertising on social media poses to Aotearoa New Zealand’s democracy.
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URL: http://www.nzlii.org/nz/journals/NZPubIntLawJl/2021/8.html