New Zealand First Direct Mail Advertisement
Meeting 10 December 2008
Complainant: M & J. Dryden & Others
Advertisement: New Zealand First
Complaint: The direct mail advertisement was addressed to 'John Key C/- ...' and then listed the name and address of the recipient. It began 'Dear John' and then had the heading "The Inconvenient Truth About Winston Peters". The advertisement stated "Over the past few weeks you have come out and said you will not work with New Zealand First. Big mistake. You have teamed up with Rodney Hide via the media to attack New Zealand First and myself in what has been the dirtiest election campaign ever..." A paragraph at the end of the letter included the text "While we worked with Labour, you were in opposition digging up dirt and untruths that failed to stick; well I know you are going to hate visiting this site that has been set up especially for [Name of recipient]. Large text then said "www.[Name of recipient].MrKey.co.nz".
Complainants, M & J. Dryden, said:
"As you will see from the enclosed letters, they are addressed to:
C/- M. Dryden
C/- J. Dryden
respectively, to the above address.
Also note the web sites as listed and personalised at the bottom of the letters.
We believe we have a justified complaint in this instance, in that we have been used to direct mail to John Key. In actual fact, we have opened someone elses mail!
Also our names are now on the web without our consent and linked to John Key. We do not believe that this is acceptable and wish to include this within our complaint.
We look forward to hearing your comments on this issue."
Duplicate Complainants shared similar views and in particular expressed concern about the use of their names on the internet without their permission, and a breach of privacy issue.
The Chairman ruled that the following provisions were relevant:
Code of Ethics
Basic Principle 4: All advertisements should be prepared with a due sense of social responsibility to consumers and to society.
Rule 5: Offensiveness - Advertisements should not contain anything which in the light of generally prevailing community standards is likely to cause serious or widespread offence taking into account the context, medium, audience and product (including services).
Rule 10: Privacy - Unless prior permission has been obtained an advertisement should not portray or refer to any persons, whether in a private or public capacity, or refer to any person's property, in a way likely to convey the impression of a genuine endorsement.
Rule 11: Advocacy Advertising - Expression of opinion in advocacy advertising is an essential and desirable part of the functioning of a democratic society. Therefore such opinions may be robust. However, opinion should be clearly distinguishable from factual information. The identity of an advertiser in matters of public interest or political issue should be clear.
The Advertiser, New Zealand First, said:
"Thank you for your letters of 24th, 25th and 26th November 2008.
As I explained to you in our short telephone conversation on 28th November, we have had to answer similar complaints made to the Electoral Commission. In fact, complaints made directly to New Zealand First, and myself in particular, motivated us to provide an explanation that has been sent out to in excess of one hundred and fifty people.
It is a word for word copy of this letter that I supplied to the Electoral Commission and now supply to you for your consideration.
As I said to you, it is more technical than I would have penned myself, but I am sure you and the Authority will be satisfied by it.
Thank you for your comment when you visited your personalised site recently.
Many people expressed amazing support with constructive comments.
A few people have been confused by the site, and think we have set up a website in their name. This is not so.
No one can go to this site without your personal pass, and no one will see your name unless you forward it onto family and friends. Everyone has their own personalised pass. Others can visit http://www.truthaboutwinston.co.nz
Essentially, the personalised URL is not a true URL (Uniform Resource Locator).
A true URL is a registered domain that can be searched via google and has WHOIS information associated with it.
The personalised portion of the URL is generated from the database and is in no way associated with the actual URL like a normal subdomain would be. It is an alias.
I can assure you of your privacy. Your name has not been splashed over the interne. For cost effective communications we have used Internet technology called PEM, or Personalised Electronic Mail, and created a link for you to personally view several video clips, accompanied by a self explanatory letter.
Names were randomly picked from public databases and will not be used other than sending you the initial letter and this response to your comment."
The Complaints Board perused the complaint and the advertisement. It noted Complainants raised a number of issues including the unauthorised use of their names.
The Chairman directed the Complaints Board to consider the complaint with reference to the Code of Ethics, Basic Principle 4, and Rules 5, 10 and 11.
Basic Principle 4 required advertising to be prepared with a due sense of social responsibility to consumers and society. Rule 5 related to advertising that may cause serious or widespread offence. Rule 10 related to a requirement for prior permission before use of any information that may imply a genuine endorsement and Rule 11 set out the requirements of advocacy advertising.
The Complaints Board also noted the Advocacy Principles:
1. That Section 14 of the Bill of Rights Act 1990, in granting the right of freedom of expression, allows advertisers to impart information and opinions but that in exercising that right what was factual information and what was opinion, should be clearly distinguishable.
2. That the right of freedom of expression as stated in Section 14 is not absolute as there could be an infringement of other people's rights. Care should be taken to ensure that this does not occur.
3. That the Codes fetter the right granted by Section 14 to ensure there is fair play between all parties on controversial issues. Therefore in advocacy advertising and particularly on political matters the spirit of the Code is more important than technical breaches. People have the right to express their views and this right should not be unduly or unreasonably restricted by Rules.
4. That robust debate in a democratic society is to be encouraged by the media and advertiser and that the Codes should be interpreted liberally to ensure fair play by the contestants.
5. That it is essential in all advocacy advertisements that the identity of the advertiser is clear.
Turning to the advertisement before it, the Complaints Board noted that it was in the form of a personally addressed letter to John Key, C/- a name and address, and the name was repeated via what appeared to be a website address at the end of the letter.
In the first instance, the Complaints Board discussed the device used by New Zealand First with regard to the website address and noted that it was a new technique that is being increasingly used by a range of advertisers in promoting their product or service.
The Complaints Board discussed the complaints in relation to the issue of privacy and specifically the requirements of Rule 10 in the Code of Ethics which states:
"Rule 10: Privacy - Unless prior permission has been obtained an advertisement should not portray or refer to any persons, whether in a private or public capacity, or refer to any person's property, in a way likely to convey the impression of a genuine endorsement."
The Complaints Board sympathised with the concerns expressed by Complainants with regard to the use of their names in the advertisement before it. However, in relation to the wording of Rule 10, which focused on the issue of genuine endorsement, the Complaints Board ruled that the use of names and addresses in this context, did not effect a breach of Rule 10 of the Code of Ethics and the complaint was not upheld under this Rule.
Rule 11 required that the identity of the advertiser in advocacy advertising be clear, and the Complaints Board was satisfied that it was clear that the advertisement was from New Zealand First, signed by its Leader and containing an authorisation statement. The Complaints Board ruled that the advertisement was not in breach of Rule 11 of the Code of Ethics.
The Complaints Board then turned to consider the advertisement under Basic Principle 4 requiring a due sense of social responsibility and Rule 5 with regard to offensiveness.
A minority of the Complaint Board considered that the advertisement did not show a due sense of social responsibility. In the view of the minority, the use of a person's name in what was to all intents and purposes a website address, without any context or additional information about the technique was in breach of Basic Principle 4 of the Code of Ethics. In addition, a minority of the Complaints Board considered that the number of complaints and concern expressed was indicative of widespread offence and agreed that the complaint should also be upheld under Rule 5 of the Code of Ethics.
However, the majority of the Complaints Board disagreed. In the view of the majority, while the execution of the advertisement had caused a level of concern for voters, it had used a communication technique that was becoming more common and while of concern to the Complainants, did not actually mean that their personal information was available on the internet. Therefore the majority of the Complaints Board did not consider that the advertisement reached the threshold to effect a breach of Basic Principle 4 of the Code of Ethics nor the requirements with regard to serious or widespread offence under Rule 5 of the Code. In making its ruling, the majority took into account the Advocacy Principles and the importance of robust debate in a democratic society.
In accordance with the majority, the Complaints Board ruled to not uphold the complaint.
Decision: Complaint Not Upheld