Ignorance is no excuse …. unless one is a politician, in which instance it’s too often observed.
Should all political advertising be qualified, as ‘uninformed opinion’? A slowly spoken introduction with each advert, similar to those used for some movies and TV programs. A bold announcement ‘any resemblance of characters portrayed to living people or similarities of the story to actual events are unintended and purely coincidental’.
It caters for all possibilities of fact and fiction. Hopefully the ending is a happy and surprising one. Politics has a certain dramatic quality. Fortunately one can take time out from the show and come back a few days in without missing too much. A lot like the Bold and the Beautiful, with intrigue, fickle relationships, inconceivable plot lines, and unbelievable characters. Only one has standards for it’s actors.
Some lies are so blatant it would not take a miracle, but perhaps restating it would enough times might convince people it is so.
I would be happy enough for a proven lie, eg ‘your dog has fleas today’ is easily proven or not, to be a misdemeanour with a fine with a conviction recorded for public record.
I see it as supporting integrity rather than protecting partisans and pollies who are of the opinion whatever it takes to sway opinion is fine.
It might be enough for publications, but I include public statements by the pollie not just their PR organisations.
You will always find exceptions to argue the con, yet consider the dialogue in the US about a supposedly stolen election where it gets repeated to their faithful who still are true believers, but not a win in any court or recount. Enough to prove they lie? Some still think it is the only truth they can believe, because it is allowed as ‘free political discourse’ aka lying …
edit: if the pollies and parties exhibited more integrity so they were deemed trustworthy by a significant majority we would likely not be having this discussion That we are begs why expecting integrity is a problem, other than ‘agreeing and enacting’ the mechanics involved.
Yes. More specific statements that intend to be factual. It’s not simple though.
To pick up on your own example, what about a more vague claim like “the election was stolen”? That is quite different from “there are faults in the election counting computers” or “the election counting computers were tampered with” or “some blocks of votes were intentionally discarded”. In normal English usage you can “steal” a contest just by some stroke of good fortune or other surprising turn of events. When you lose the unlosable election, it could be said to have been stolen? (1993)
That goes way beyond “advertising” however. Inside parliament? Outside parliament? During an election campaign? Outside an election campaign?
(What is a “public” statement? We’ve had enough interesting disclosures over the decades of comments that were clearly intended for a strictly limited audience but nevertheless became public.)
Should a politician then leave the statements to the advertisers (paid actors? - you know like “Fake Tradie” who turned out to be a real tradie and therefore under your regime those who claimed he was a fake tradie might find themselves in trouble because after all status as a tradie is basically a question of fact)?
What about forecasts about the future? Will the court be deciding whether a person could reasonably have believed that the forecast will become true, when in fact the forecast is eventually shown to be false, potentially out by a wide margin? If Treasury prepares a forecast and the Treasurer repeats the forecast publicly?
What about where a pollie prefaces a statement with “I believe that…”? That essentially makes the statement as a whole true, or at least makes it near impossible to prove that the statement as a whole is false. Will the court be deciding whether a person could reasonably have believed the statement?
Will the court be effectively banning an anti-vax party from even existing - because all the scientific evidence means that party statements cannot reasonably be believed let alone asserted as fact?
I am curious if you a legal practitioner, political insider, just active in the political process, or are like most of us a mere observer, since you seem to have been around the block more than a few times to recognise the difficulty.
You have made many valid points about how difficult it is to address ‘polliespeak’ yet do not seem to have accepted there is a problem, or at least one that can be treated. Is that the case?
@PhilT
I am none of those things (lawyer, political insider, activist, …) - just an observer, albeit probably paying more attention than the average voter.
It is more that I have not accepted that there is a solution.
An MP, particularly a government MP, will no doubt offer the platitude that the only court that matters is the court of public opinion. There is some merit in that.
I don’t see it as a legitimate role of the judiciary to determine the truth of political statements. In fact, it would undermine public confidence in the judiciary since the judiciary would then have had its nature compromised i.e. by being politicised. It would encourage political appointments but even without political appointments, it would make the court politically partisan.
Of course we accept that from time to time the High Court sitting as the Court of Disputed Returns will have to determine matters that affect the political process, and likewise the High Court may be asked to determine a candidate’s or a member’s eligibility, and other constitutional questions, and that likewise affects the political process. However these are narrow matters of law rather than ranging across the wild and woolly expanse of political ‘truth’.
They are asked to determine cases of truth in advertising. Other countries have laws about political lying I hear. How can either of those things be possible and not have the judiciary do the same here?
Honest question, is political advertising congruent with the right to lie as well as propagating those lies with impunity, because it is politics and there are apparently no rules that apply (according to the pollies)?
The answer seems to be increasingly yes. My response is ‘No wonder democracy and norms of representative government are in trouble.’
In the context of this (hijacked) topic, we see that the judiciary does not determine truth in advertising when the claim is puffery. So I suppose a simple answer would be: all political advertising is puffery.
Is that a fair answer? The cynic in me says that it is not far from the truth.
citation needed? I mean that is a very general statement. Without seeing the specific country, the specific legislation, the specific scope, the specific conditions, it is difficult to know whether we would want that to apply in Australia and how well it would work.
In particular, I raised above which way the onus of proof would lie. If I make a statement during an election campaign and you claim that I have lied, do you have to prove that I have lied (innocent until proven guilty) or do I have to prove the truth of my statement (guilty until proven innocent)?
And is this a civil matter between you and me, or a criminal matter with the authorities pursuing me?
Looking at it from the exact opposite perspective … there are countless examples in “other countries” where we see how restrictions on freedom of speech are abused. Why would we want to import that?
In Australia? Probably not. We have such limited guaranteed human rights. However I come back to: One consideration is the implied right to freedom of political communication. A law that is too onerous may simply be struck down.
Any attempt to legislate restrictions on freedom of political speech can and should be challenged in the High Court. It is impossible to know in advance what the High Court would say, particularly without draft legislation available. Some restrictions have stood up though. So there is never certainty.
I would ask the question even more generally though: Does freedom of speech imply the right to lie? I would answer “yes”. Sometimes there are consequences to lying that effectively abridge the freedom of speech e.g. getting sued for defamation but in my opinion defamation laws should operate with the lightest touch possible i.e. only in the most egregious and extreme cases.
You make some good points but what if the false advertising causes susceptible ones among us, the elderly, the very young, new migrants, the indigenous and the educationally challenged, to suffer financial loss or worse, whether they realise it or not? Who protects them? It’s a drain on our economy and keeps the poor poor.
Freedom to offer an opinion or make a promise are fundamental to how our democracy functions.
When political content or speech moves from opinion to offering facts in support of an opinion should the freedom extend to making up the facts, or mis-representing facts? The former is dangerous ground, especially on the floor of Parliament. The latter is not necessarily self evident.
A particularly grating example is how different commentators and political groups interpret the status of the National Green House Gas Accounts. The debate most often had is not about the accuracy of the numbers. The divisions are over which of the data measured we should be most concerned for. The quarterly reports present a variety of different assessments. Some are more useful as feel good than objectively offering guidance.
I’m not suggesting we should debate these differences in this topic. That many points of political spin rely on speculative outcomes or forecasts, they are not untrue. Puffery in a political marketing sense may be no more than polishing the proverbial bovine waste products. Each brand has it’s own pile of excrement and preferred techniques. If there is an obvious mis-statement of fact, there is no need to look any further than the public name on each brand. Many question the reliability of the label on the product. The “pack shots” have been far from reliable for many decades.
How might any politically derived legislation side step that point of truth, or The High Court ever hope to rule on it?
" In everyday language, puffery refers to exaggerated or false praise.[1] In law, puffery is a promotional statement or claim that expresses subjective rather than objective views, which no “reasonable person” would take literally.[2] Puffery serves to “puff up” an exaggerated image of what is being described and is especially featured in testimonials."
It is what I have always understood puffery to be, ie, something that a normal person would not believe.
One great example were the TV ads that Philips used for their CRT TV’s in which the owner said that his new TV was so advanced, that he gets next week’s programs, and that he had really been cleaning up lately on Lotto.
Others were Telecom’s TV ads showing “customers” with their grand mansions, yatchs, and helicopters that they had bought with what they saved on their Telecom landline plans.
As far as politicians are concerned, I don’t have a problem.
I know when they are lying as I can either hear them or I can see their lips moving.
There may be some confusion here. This topic was originally about “puffery”1 in advertising by commercial enterprises. It has been hijacked into a topic about (truth in) political advertising.
If a company makes a claim about one of its products and that claim is clearly intended to be taken seriously (i.e. not puffery) and that claim is objectively false (at least to the satisfaction of the court) then I have no problem that the company gets a caning from the court.
1 Borrowing from a later post, “puffery” in law means: a promotional statement or claim that expresses subjective rather than objective views, which no reasonable person would take literally
My original post actually referenced a paper on Puffery where it was considered that “The blurred line between puffery and misleading practice need not exist anymore if puffery is classed as a misleading practice. The conception that puffery is not actionable because it is not believed has to be cast aside. Puffery is an exaggeration. Evidence in this study proves that it is an effective tool in influencing consumers’ perceptions. It creates uncertainties that are open to exploitation. The growing problem of misleading practice and efforts that need to be taken to regulate it can be reduced.” I fully support the view taken by @BobT in regards to seeing this as false advertising. It isn’t truthful but it is allowed by the excuse that a ‘reasonable person’ wouldn’t believe the falsehood, this gets too blurry as to what is puffery and what is misleading these days. I say remove the loophole, either state the truth about the product or don’t advertise it.
@Fred123 there is a somewhat legal distinction between what defines a ‘normal person’ and a ‘reasonable person’. Vince Scopelliti an Australian Lawyer (Vince Scopelliti - LKA Group) has written a great article in his blog post on HR Daily Community about the reasonable person test. He writes in the following article (The Reasonable Person Test Explained - HR Daily Community)
" DOES REASONABLE MEAN AVERAGE?
The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible."
From Wikipedia about normality (normal people)
" Normality is a behavior that can be normal for an individual (intrapersonal normality) when it is consistent with the most common behaviour for that person. Normal is also used to describe individual behaviour that conforms to the most common behaviour in society (known as conformity)"
From the Merriam-Webster dictionary: Normal definition is - conforming to a type, standard, or regular pattern : characterized by that which is considered usual, typical, or routine.
A normal person is not legally defined as a ‘reasonable person’ and not always is a reasonable person what is termed a ‘normal person’ or an average person. Certainly a reasonable person would be at the upper end of behaviours expected of a normal or average person ie the reasonable persons are prudent, a little careful, very thoughtful, and risk conscious.
It is challenging as most retailers and manufacturers use puffery. It can be slogans (cheaper, better, cleaner, greener, fresher etc), product names (using wording or product names which infers something it isn’t - natural, eco, green etc) or about its products or services (how it is supposed to make one feel, look etc).
The puffery web is so heavily knitted into marketing, it may be very hard to unpick.
Possibly a solution is to have requirements to disclose puffery a retailer/manufacturer uses in the course of their business. This could be done on their websites for example, and might make some interesting reading.
Easy fix is declare it as misleading practice, marketing will need to adjust so they tell the truth and not some hype. I don’t care that they have to adjust their marketing, that’s their problem. I want truth in advertising not some sham claim.
It would be lovely if it was that easy. But, it may mean that other countries may also need to so do as such practices aren’t limited to Australia…and Australians buy products and services from overseas and from multinationals.
There are thousands of examples of puffery, some obvious and some not so.
The other challenge is puffery is the tool of marketers, to make marketing more successful. A government would potentially have to fight the marketing industry and all businesses, to effect a change.
You may also be outlawing humour in the process. Since puffery is by definition not intended to be taken seriously, some puffery is used for humorous effect. I wouldn’t want to lose that. Just my taste of course.
If a product describes itself as “better”, I would hate to think that a court can decide whether one product is better than another product unless the product that is claiming to be better is in fact inferior in all aspects, including price. If it is better in some aspects and not better in other aspects then who decides what is an appropriate weighting of aspects in order to determine which product is “legally” better?
Humour can still be used. As a differentiator of one product from another though there should be truth in the assessment…humour does not preclude truth nor it is necessarily puffery.
Why do we have to accept untruthful statements about the quality, quantity, characteristics of a product. Have we become so used to untruth we just accept it as needful? I think marketing is lazy, tell a lie so we don’t need to truthfully appraise our product to our market. Impose truth and marketing will still exist, it however will be made to be truthful in claims using humour, parody or whatever way of presenting those truths.
That we are begs why expecting integrity is a problem, other than ‘agreeing and enacting’ the mechanics involved.
