Dodgy digital election ads: Does the watchdog need teeth?

The election was done and dusted weeks ago, but this week the advertising watchdog ruled another online election campaign ad was misleading. Mediawatch asks the Advertising Standards Authority: is the system working if dodgy ads are only called out long after they might have had an impact - and the parties who place them aren't penalised?

Last Monday the Advertising Standards Authority released a ruling which said a National Party Facebook ad in the week leading up to election day was misleading. 

The ad said a hypothetical retired couple would have to pay $140 a week under the Greens’ proposed wealth tax. The ASA found that wasn’t true. The couple wouldn’t have paid the tax at all.

The ad had already been taken down. If it hadn’t, the ASA would have asked for it to be withdrawn.

This was technically the system working as intended. 

There was only one problem: the election is already over.

Even if the ASA had been able to get its decision out before the election, it’s an industry self-regulatory body that has no power to enforce its decisions.

There was no real penalty for National being loose with the facts. 

Some have argued that lack of enforcement power, and the lag between ads being posted and decisions being made, are making political parties more comfortable with stretching the truth.

This week wasn’t the only time National had been censured for posting misleading ads in the lead-up to this year’s election.

In January, the ASA ruled that it had been misleading on the extra costs a proposed 'feebate' scheme for electric vehicles would place on fuel-burning cars. In May a complaint was upheld over an ad which claimed Labour was better at creating people on the dole than jobs. 

Complaints were also upheld over ads by Billy Te Kahika and Jami-Lee Ross’s Advance NZ party and the Social Credit Party.

Overall, the number of complaints to the ASA about misleading advertising rose from 16 in election year 2017 to 101 this year.

Earlier in the year Parliament’s speaker Trevor Mallard ordered National to take down an ad using parliamentary material in a misleading way.

That isn’t exactly catastrophic.

But it’s happening against the backdrop of a rising tide of online disinformation which has disrupted and distorted elections overseas - most recently in the US.

Does New Zealand have an adequate system to counter misinformation, particularly at election time? And can misleading advertising be dis-incentivised without clamping down on people’s freedom of speech?

Advertising Standards Authority chief executive Hilary Souter said the current, voluntary system was largely effective.

“Our process is voluntary. The enforcement that we request is removal of the ad if the ad is a problem. And most advertisers do,“ she said. 

“We had 29 ads from the National Party that were complained about. Seven of those had a case to answer and went to the Complaints Board. Three of those were upheld.

“I think you have to look at the bigger picture considering the volume of advertising that was out there."

The Broadcasting Standards Authority deals with election ads on TV and radio. Its powers are set out in the Broadcasting Act and it has the power to award costs against broadcasters for serious breaches of standards. Its decisions can be appealed in court.   

Would political parties be less willing to push the boat out with claims in their ads if the ASA had similar enforcement powers?

“You have to have a statutory basis for that. You can’t just say: 'Pay us some money because we don’t like your ad',“ Souter said. 

“That’s more complicated and would take more time. Advertising is a very fast moving business."

That's true. The ads in election year which prompted upheld complaints were widely viewed online before they were withdrawn  - or complaints about them were upheld and made public. 

Souter said election-period complaints are fast-tracked.

“In the regulated period between 13 June and 16 October we looked at 85 ads; 48 of those were fast tracked and the average turnaround time for the complaints that went to the (Complaints) Board was four days,” she said. 

But misinformation can move even faster than that online. 

“Election advertising comes under the banner of ‘advocacy advertising.’ It is different to selling a product or service. It’s not a commercial call to action so it is treated differently by the ASA,” she said. 

“The issue is what is the consumer take out – not what the advertiser intended.

“One person’s misinformation is another person’s opinion. That’s the first question we ask is: 'is it fact or is it opinion?'” she said.

“In relation to social media, those ads don’t exist in isolation. Every single one of the posts we considered had reaction immediately – people disputing it, people challenging it, people supporting it or arguing about it. 

“Then they come to the media‘s attention - and they would write about them and question whether or not the statements were  true. No one just sees the ads in isolation."

But isn’t that shifting responsibility to counter potential political misinformation onto voters and the news media? 

“The Justice Select Committee will do a review of the election; we will contribute to that,” she said. 

“The challenge our complaints board has is to determine what is fact and what is opinion. And if it is fact - is it substantiated?

“If the parties are posting stuff that is not credible then no one will vote for them.

“That’s the way democracy is supposed to work."