RAW DATA: ASA Complaints Board Greenpeace decision

ADVERTISING STANDARDS AUTHORITY COMPLAINTS BOARD

DECISION

Meeting 6 March 2012

Complaint 12/028

                                    Complainant: B. Leyland and others

                                    Advertisement: Greenpeace Aotearoa / New Zealand

Complaint: The television advertisement for Greenpeace featured a succession of images of oil smudges that resembled the shape of a penguin.  A dead penguin covered in oil is then lifted off the paper and the following words appear on the screen:

            “Over 20,000 birds were killed by the ‘Rena’ oil spill”

The next screen reads:

            “Deep sea oil drilling could be 1000 times worse”

The closing screen then appears which reads:

            “GREENPEACE Sign the petition.  Txt you name to 5806”

Complainant, B. Leyland, said:

The advertisement claimed that 20,000 birds have died from the Reno oil spill.

According to http://blog.tepapa.govt.nz/?s=rena+oil+spill about 1300 have died. While it is reasonable to assume that many have died that were not counted,  20,000 has to be a gross exaggeration which is putting to create an atmosphere of fear.

The advertisement goes on to say that 1000 times more could die from offshore oil drilling.  This amounts to 20,000,000 seabirds!  I doubt if there aren't that many seabirds around the whole of the New Zealand coast,  let alone in the Bay of Plenty.

According to http://www.nytimes.com/interactive/2010/04/28/us/20100428-spill-map.html the oil spill in the Gulf of Mexico - which was truly enormous—killed 3800 seabirds. once again,  more would have been killed them were found but there is no possibility that figure of 20 million and is even remotely correct.

The objective of the advertisement was to persuade people to object to offshore oil drilling. While they are entitled to do this, they are not entitled to use gross exaggeration to do so.

I believe that Greenpeace should be asked to document their claim and if they cannot provide convincing evidence, they should immediately withdraw the advertisement and publicly admit that the figures were in error.

Duplicate Complainants shared similar views.

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 2: Truthful Presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is not considered to be misleading).

Rule 6: Fear - Advertisements should not exploit the superstitious, nor without justifiable reason, play on fear.

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, Greenpeace Aotearoa / New Zealand, said;

Thank you for your letter dated 8 February 2012, enclosing complaints received by B. Leyland in relation to our television advertisement relating to the "Oil on Canvas" petition (Advertisement).

Advertising agency

The advertising agency retained for the Advertisement was Publicis Mojo.

Greenpeace's Response to B. Leyland's Complaint

We understand that B. Leyland's complaint concerns two separate assertions made in the Advertisement:

(a) the assertion to the effect that approximately 20,000 birds have been killed as a result of the Rena disaster; and

(b) that the consequences of an accident at a deep sea oil drilling facility could potentially be "1000 times worse" than those resulting from the Rena.

We respond to these concerns in turn.

 20,000 birds killed

As B. Leyland recognizes, the dead birds found are likely to constitute but a fraction of the actual number killed. Dr Brett Gartell, manager of the National Oiled Wildlife Response Centre based at Massey University (NOWRC)„ the official bird recovery, autopsy and cataloguing authority for the Rena disaster has reported that over 2,000 birds had been identified which had died as a direct result of the accident.¹

The estimated figure of 20,000 birds is based on UK and US research which has found that in instances of oil spills, bird carcasses recovered represent only approximately 10% of actual fatalities,

It is never possible to calculate wildlife fatalities resulting from disasters of this type with any great precision. It is accordingly reasonable to assume that any figure used in respect of total birds killed as a consequence of the Rena's stranding will be an estimate, and Greenpeace is of the view that the general member of the public will have understood the figures used in the Advertisement in this way. The 20,000 estimate is robust and is consistent with, for example, the 20,000 estimate quoted by the National Oiled Wildlife Rescue Centre figures, ² and Greenpeace stands by it,

"1000 times worse"

The Rena oil spill in the Bay of Plenty in 2011 was widely stated by authorities, Government Ministers and reported by the media to be 350 tonnes [equivalent to around 400 m³ of oil)

The Deepwater Horteon deep-sea oil blow out which flowed unabated in the Gulf of Mexico for three months in 2010 from a depth of 1,500 meters below sea level hence "deep-water" released approximately 4 million barrels (637,000 m³) of crude oil acc rding to official US Government figures³.

This would make the scale of the Gulf of Mexico deep-sea spill in terms of oil volume over 1000 times [in fact nearly 2000 times) greater than the Rena spill. Deep sea oil drilling is planned for New Zealand waters as soon as next summer. Some prospects such as the Raukumara basin exceed the depth of the Deepwater Horizon spill.

The assertion in the Advertisement that a deep-sea oil spill could be more than 1000 times worse than the Rena spill was made in the context of general environmental impact, and not specifically in relation to loss of seabirds. In our view, this is also how the general viewer will have understood the statement

Whilst the sheer numbers ofbirds killed in a New Zealand oil blow out might not be 1000 x 20,000 it is the overall extent of the harm caused to a diversity oF species, to ecosystems, over a much greater area of coast and ocean and the ability for ecosystems and species to recover and the time span over which harm would be caused which "could" reasonably be 1000 times worse with an oil blow out of a scale similar to the Deep-water Horizon disaster

Also given the high number of vulnerable and threatened species endemic to New Zealand it is conceivable that an extinction or extinctions could be a consequence of a major oil spill in NZ (see appendix 1).

The extinction of a species would be an outcome on which any number figure of

the harm caused would be meaningless other than to say "a great harm".

It is important to note that both oil spill volumes from ships and particularly from blow outs is an inherently inexact science which is based on estimates. Likewise wildlife impacts and consequences are similarly inexact.

The term "1000 times worse," has both a mathematical meaning and is also a common "turn of phrase" to suggest "a great deal worse".

B.Leyland

Finally, Greenpeace is concerned as to the motivation behind B. Leyland's complaint. B. Leyland is well known for his commentary as a climate change denier. He is a founding member of the Climate Science Coalition, New Zealand's leading climate change denial organization. There is a very clear and direct connection between oil campaign work and climate change.

As a result, we are concerned that B. Leyland's complaint is not a genuine consumer complaint and is better suited for the AWAP processes, giving Greenpeace a proper opportunity to make oral submission to the ASA board.

¹http://www.3news.co.nz/rena20000birdsmayhavedied/tabid/1160/articleID/232825/Default.aspx

²See ibid and http://www.guardian.co.uk/world/2012/jan/08/cargo-ship-rena-breaks-new-zealand

³http://www.oilspillcommisson.gov/final-report

Commercial Approvals Bureau (CAB) said on behalf of the media:

We have been asked to respond to this complaint under the following codes:

Code of Ethics - Basic Principle 4

Code of Ethics - Rule 2

Code of Ethics - Rule 6

Code of Ethics-Rule 11

A number of complainants have sought verification on a claim made by Greenpeace in their 'Penguins' commercial, relating to figures associated with the death of seabirds during the 'Rena oil spill'.

The Code of Ethics' rules for advocacy allow for the expression of opinion, so long as matters of opinion are clearly distinguishable from factual information.

The figures for seabird deaths are clearly intended as statements of fact, and as such, CAB will defer to the advertiser to provide substantiating data

Deliberation

The Complaints Board carefully read all correspondence in relation to the complaint and viewed a copy of the television advertisement.  It was noted that the primary Complainant (and duplicates) believed the advertisement was a misleading based on the figures reported, and a ‘gross exaggeration’ of the truth created to promote fear among the people.

The Chairman directed the Complaints Board to consider the advertisement with reference Basic Principle 4 and Rules 2, 6 and 11 of the Code of Ethics. This required the Complaints Board to consider whether or not the advertisement contained anything which, either directly or by implication, was likely to deceive or mislead the consumer, if it exploited the superstitious or without justifiable reason played on fear and if it had been prepared with a due sense of social responsibility to consumers and to society.  In considering the advertisement, the Complaints Board was also required to consider the provisions of Rule 11 of the Code of Ethics which allows for expression of opinion in advocacy advertising, provided that the expression of opinion is robust and clearly distinguishable from fact.

When considering the complaint the Complaints Board noted that the matter essentially involved two separate claims, and it would look at them in turn.  It noted that those claims were firstly, that the Rena oil spill had killed over 20,000 birds and, secondly, that a deep sea drilling incident could be 1000 times worse (than Rena).  However as a preliminary matter the Complaints Board considered whether the advertisement was advocacy advertising.

Advocacy advertising allows for the expression of opinion as an essential desirable part of society.  However Rule 11 of the Code of Ethics states that such opinions must be robust and clearly distinguishable from factual information, while the advertiser’s identity in matters of public interest or political issue should be clear.  Turning to the advertisement the Complaints Board noted that the advertisement was clearly identifiable as a Greenpeace advertisement advocating their stance on the topical oil issue.  It added that generally consumers have a clear knowledge of the Greenpeace cause, and therefore the advertisement was clearly an example of advocacy advertising.  The Complaints Board then moved to consider if the opinions expressed in the advertisement were robust and clearly distinguishable from fact.  The Complaints Board was of the view that the statement “20,000 birds were killed” was expressed in a manner that denoted a strong absolute statement of fact.  It said that the Advertiser had presented a best practice estimate as an absolute fact when as they had stated in their response to the complaint it had only been “reported that over 2000 birds had been identified which had died as a direct result of the accident [Rena]”.  Accordingly the Complaints Board said the statements expressed in the advertisement were not clearly distinguishable as opinion (as opposed to fact) and therefore the advertisement was in breach of Rule 11 of the Code of Ethics. 

Turning to consider the first claim made in the advertisement that “over 20,000 birds were killed by the ‘Rena’ oil spill”, the Complaints Board noted, as above, that the statement “20,000 birds were killed” was expressed in a manner that denoted a strong absolute statement of fact.  It said that the Advertiser had presented a best practice estimate as an absolute fact when as they had stated in their response to the complaint it had only been “reported that over 2000 birds had been identified which had died as a direct result of the accident [Rena]”.  The Complaints Board further noted the Advertiser’s response where it stated:

“The estimated figure of 20,000 birds is based on UK and US research which has found that in instances of oil spills, bird carcasses recovered represent only approximately 10% of actual fatalities,

It is never possible to calculate wildlife fatalities resulting from disasters of this type with any great precision. It is accordingly reasonable to assume that any figure used in respect of total birds killed as a consequence of the Rena's stranding will be an estimate, and Greenpeace is of the view that the general member of the public will have understood the figures used in the Advertisement in this way, The 20,000 estimate is robust and is consistent with, for example, the 20,000 estimate quoted by the National Oiled Wildlife Rescue Centre figures, ² and Greenpeace stands by it.”

The Complaints Board said that the statement “20,000 were killed” was a very strong statement and in its view was a long bow to draw particularly when the practice was based on UK and US research which would involve different bird breeds and populations to name just a few variables.  The Complaints Board further added that the Advertiser was assuming a lot of the consumer to understand that the figure purported as fact in the advertisement had been derived in such a manner.  As such the Complaints Board were of the view that the claim that the Rena oil spill had killed over 20,000 birds was likely to mislead and deceive consumers and was therefore in breach of Rule 2 of the Code of Ethics and as such the advertisement had not been prepared with a due sense of social responsibility as required by Basic Principle 4 of the Code of Ethics.

Turning to the second substantive claim identified in the complaint, that a deep sea drilling incident could be “1000 times worse” (than the Rena incident), the Complaints Board noted that the use of the word “could” presented the claim as an opinion or possibility as opposed to an absolute fact.  It further noted the Advertiser’s response where it stated:

“The assertion in the Advertisement that a deep-sea oil spill could be more than 1000 times worse than the Rena spill was made in the context of general environmental impact, and not specifically in relation to loss of seabirds. In our view, this is also how the general viewer will have understood the statement

Whilst the sheer numbers ofbirds killed in a New Zealand oil blow out might not be 1000 x 20,000 it is the overall extent of the harm caused to a diversity oF species, to ecosystems, over a much greater area of coast and ocean and the ability for ecosystems and species to recover and the time span over which harm would be caused which "could" reasonably be 1000 times worse with an oil blow out of a scale similar to the Deep-water Horizon disaster”.

The Complaints Board was of the view that the consumer would recognise that the purpose of the advertisement was to highlight the risks and possible impacts of the oil industry on the surrounding environment using the Rena incident as an example, and given the context provided in the Advertiser’s response regarding the Gulf of Mexico deep sea oil spill, the assertion of “1000 times worse” was not likely to mislead or deceive consumers.  It further added that the assertion of “1000 times worse” was expressed as an opinion with a clear intention to advocate for the Greenpeace cause, and as such fitted within the realm of advocacy advertising allowed under Rule 11 of the Code of Ethics.

The Complaints Board then moved to consider whether the advertisement as a whole exploited the superstitious or without justifiable reason played on the fear of the consumer as restricted by Rule 6 of the Code of Ethics.  It was of the view that given the reputation of Greenpeace, the intended advocacy purpose of the advertisement, and that the reasonable consumer would be aware of the Advertiser’s cause, the advertisement did not go as far as to reach the threshold to play on the fear of consumers.  Accordingly the Complaints Board said the Advertiser was not in breach of Rule 6 of the Code of Ethics.

In summary of the above, the Complaints Board ruled to uphold the complaint in relation to the claim “20,000 birds were killed” under Basic Principle 4 and Rules 2 and 11 of the Code of Ethics, and to not uphold the complaint under Rule 6 of the Code of Ethics and in relation to the claim “1000 time worse” under Basic Principle 4 and Rules 2 and 11 of the Code of Ethics.

Accordingly, the Complaints Board upheld the complaint in part.

Decision:ComplaintUpheld (in part)