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 for Open Government.
The coalition complained to the editor of the Herald about the contents of the editorial on December 4, 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 November 20, 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 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 on November 20, 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 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 these 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 August 13, 2007, when the registration threshold was $5000 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 $7000 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 $1000 for anyone who wishes to run an advertisement that refers to a candidate.
This minimises 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.
The Herald has acknowledged it erred but says 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 not have.
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 the Herald now includes in its potted summaries the $120,000 spending cap, the $12,000 threshold and the $1000 threshold which applies to naming candidates.
The Herald has taken appropriate steps to subsequently mitigate its mis-statements.
For the reasons given, the council finds 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.