Should local government election advertisers have only 24-48 hours to respond to advertising standards complaints?

Written By Tony Stevens

Election processes are under pressure, locally and overseas. The Advertising Standards Authority appears to be trying to get ahead of this by publishing a new guide as to how it will handle complaints regarding local body elections advertising. But can electoral candidate advertisers really respond to ASA complaints within 24-48 hours?

The “ASA’s guide on Local Government Election Advertising” (“LGE Ads Guide”) signals how the ASA expects to deal with this sort of “advocacy advertising” under the its Advertising Standards Code. The LGE Ads Guide says a fast-track ASA complaints process will apply during the local government voting cycle, from 16 September to 8 October 2022. Once the ASA accepts a complaint “advertisers have 24-48 hours to respond.”

The ASA should be applauded for seeking to seeking to expedite its complaints process in a potentially challenging political environment. Otherwise, complaints are unlikely to be able to be addressed until after the horse has bolted. But the New Zealand Bill of Rights Act 1990 stakes are high, as the ASA will be making decisions that impact on important free speech rights and which could (potentially) impact on some election outcomes.

This puts the spotlight on the 24-48 hours for an advertiser’s response:

  • Is the blanket 24-48 hours timeframe realistic?

  • What about natural justice? Will the ASA in a real sense fairly hear [from] the advertiser in 24-48 hour timeframe?

  • Is the timeframe a non-negotiable, or could the ASA allow more time if needed? Could reasonable advertiser requests for more time be handled within the 24-48 hours?

  • What about weekends, when information and resources (including legal if needed) to prepare a response may be less accessible? This could affect the ASA too, as it says it will respond within 48 hours of the Complaints Board Meeting, but could it comply after (say) a Friday Board meeting?

  • Is the LGE Ads Guide intended to be binding, and what status does it have relative to the ASA Code, and the ASA’s Guidance Note on Advocacy Advertising?

  • What if a complaint raises a number of issues, involving multiple/bundled individual complaints or more substantial complaints? In some cases an advertiser will reasonably require more than 24-48 hours to respond.

  • What about “political” complaints? Will the ASA’s Competitor Complaints processes apply to complaints by or on behalf of competitor political parties/groups?

  • Could the tight timeframe stress the complaints process and lead to further disputes?

Again, it is laudable that the ASA is seeking to make its complaints process work better in this context, and at a high level the LG Election Ads Guide seems to be on the money. But, respectfully, is the 24-48 hours too tight, and could that back-fire to undermine the process?

NOTE: This Blog does not comprise legal advice, and should not be taken as legal advice. If you require legal advice you should consult with a lawyer.

Tony Stevens