12/028

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 ofimages of oil smudges that resembled the shape of a penguin. A dead penguincovered in oil is then lifted off the paper and the following words appear on thescreen: “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, 20,000has 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 oildrilling. This amounts to 20,000,000 seabirds! I doubt if there aren't that manyseabirds around the whole of the New Zealand coast, let alone in the Bay of Plenty.

According tohttp://www.nytimes.com/interactive/2010/04/28/us/20100428-spill-map.html the oilspill in the Gulf of Mexico - which was truly enormous—killed 3800 seabirds. once

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again, more would have been killed them were found but there is no possibility thatfigure of 20 million and is even remotely correct.

The objective of the advertisement was to persuade people to object to offshore oildrilling. While they are entitled to do this, they are not entitled to use grossexaggeration to do so.

I believe that Greenpeace should be asked to document their claim and if theycannot provide convincing evidence, they should immediately withdraw theadvertisement 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 ofsocial responsibility to consumers and to society.

Rule 2: Truthful Presentation - Advertisements should not contain anystatement or visual presentation or create an overall impression which directly orby implication, omission, ambiguity or exaggerated claim is misleading ordeceptive, is likely to deceive or mislead the consumer, makes false andmisleading representation, abuses the trust of the consumer or exploits his/herlack of experience or knowledge. (Obvious hyperbole, identifiable as such, is notconsidered to be misleading).

Rule 6: Fear - Advertisements should not exploit the superstitious, nor withoutjustifiable reason, play on fear.

Rule 11: Advocacy Advertising - Expression of opinion in advocacy advertisingis an essential and desirable part of the functioning of a democratic society.Therefore such opinions may be robust. However, opinion should be clearlydistinguishable from factual information. The identity of an advertiser in matters ofpublic 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 byB. 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

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

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

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

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 fractionof the actual number killed. Dr Brett Gartell, manager of the National Oiled WildlifeResponse 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 hasfound that in instances of oil spills, bird carcasses recovered represent onlyapproximately 10% of actual fatalities,

It is never possible to calculate wildlife fatalities resulting from disasters of this typewith any great precision. It is accordingly reasonable to assume that any figure usedin respect of total birds killed as a consequence of the Rena's stranding will be anestimate, and Greenpeace is of the view that the general member of the public willhave understood the figures used in the Advertisement in this way. The 20,000estimate 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 ofMexico 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 acco

rding to official US Government figures3.

This would make the scale of the Gulf of Mexico deep-sea spill in terms of oil volumeover 1000 times [in fact nearly 2000 times) greater than the Rena spill. Deep sea oildrilling is planned for New Zealand waters as soon as next summer. Some prospectssuch 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 1000times worse than the Rena spill was made in the context of general environmental

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impact, and not specifically in relation to loss of seabirds. In our view, this is alsohow the general viewer will have understood the statement

Whilst the sheer numbers ofbirds killed in a New Zealand oil blow out might not be1000 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 forecosystems and species to recover and the time span over which harm would becaused which "could" reasonably be 1000 times worse with an oil blow out of ascale similar to the Deep-water Horizon disaster

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

The extinction of a species would be an outcome on which any number figure ofthe 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 blowouts is an inherently inexact science which is based on estimates. Likewise wildlifeimpacts and consequences are similarly inexact.

The term "1000 times worse," has both a mathematical meaning and is also acommon "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 afounding member of the Climate Science Coalition, New Zealand's leading climatechange denial organization. There is a very clear and direct connection between oilcampaign work and climate change.

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

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

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

3 http://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

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Code of Ethics-Rule 11

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

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

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

Deliberation

The Complaints Board carefully read all correspondence in relation to the complaintand viewed a copy of the television advertisement. It was noted that the primaryComplainant (and duplicates) believed the advertisement was a misleading basedon the figures reported, and a ‘gross exaggeration’ of the truth created to promotefear among the people.

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

When considering the complaint the Complaints Board noted that the matteressentially involved two separate claims, and it would look at them in turn. It notedthat 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 theadvertisement was advocacy advertising.

Advocacy advertising allows for the expression of opinion as an essential desirablepart of society. However Rule 11 of the Code of Ethics states that such opinionsmust be robust and clearly distinguishable from factual information, while theadvertiser’s identity in matters of public interest or political issue should be clear. Turning to the advertisement the Complaints Board noted that the advertisementwas clearly identifiable as a Greenpeace advertisement advocating their stance onthe topical oil issue. It added that generally consumers have a clear knowledge ofthe Greenpeace cause, and therefore the advertisement was clearly an example ofadvocacy advertising. The Complaints Board then moved to consider if the opinionsexpressed 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. Itsaid that the Advertiser had presented a best practice estimate as an absolute fact

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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 resultof the accident [Rena]”. Accordingly the Complaints Board said the statementsexpressed in the advertisement were not clearly distinguishable as opinion (asopposed to fact) and therefore the advertisement was in breach of Rule 11 of theCode of Ethics.

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

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

It is never possible to calculate wildlife fatalities resulting from disasters ofthis type with any great precision. It is accordingly reasonable to assume thatany figure used in respect of total birds killed as a consequence of the Rena'sstranding will be an estimate, and Greenpeace is of the view that the generalmember of the public will have understood the figures used in theAdvertisement in this way, The 20,000 estimate is robust and is consistentwith, 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 verystrong statement and in its view was a long bow to draw particularly when thepractice was based on UK and US research which would involve different birdbreeds and populations to name just a few variables. The Complaints Board furtheradded that the Advertiser was assuming a lot of the consumer to understand thatthe figure purported as fact in the advertisement had been derived in such amanner. As such the Complaints Board were of the view that the claim that theRena oil spill had killed over 20,000 birds was likely to mislead and deceiveconsumers and was therefore in breach of Rule 2 of the Code of Ethics and as suchthe advertisement had not been prepared with a due sense of social responsibilityas required by Basic Principle 4 of the Code of Ethics.

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

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

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Whilst the sheer numbers ofbirds killed in a New Zealand oil blow out mightnot be 1000 x 20,000 it is the overall extent of the harm caused to a diversityoF species, to ecosystems, over a much greater area of coast and oceanand the ability for ecosystems and species to recover and the time span overwhich harm would be caused which "could" reasonably be 1000 times worsewith 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 thepurpose of the advertisement was to highlight the risks and possible impacts of theoil 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 ofMexico deep sea oil spill, the assertion of “1000 times worse” was not likely tomislead or deceive consumers. It further added that the assertion of “1000 timesworse” was expressed as an opinion with a clear intention to advocate for theGreenpeace cause, and as such fitted within the realm of advocacy advertisingallowed under Rule 11 of the Code of Ethics.

The Complaints Board then moved to consider whether the advertisement as awhole exploited the superstitious or without justifiable reason played on the fear ofthe consumer as restricted by Rule 6 of the Code of Ethics. It was of the view thatgiven the reputation of Greenpeace, the intended advocacy purpose of theadvertisement, and that the reasonable consumer would be aware of theAdvertiser’s cause, the advertisement did not go as far as to reach the threshold toplay on the fear of consumers. Accordingly the Complaints Board said theAdvertiser 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 inrelation to the claim “20,000 birds were killed” under Basic Principle 4 and Rules 2and 11 of the Code of Ethics, and to not uphold the complaint under Rule 6 of theCode of Ethics and in relation to the claim “1000 time worse” under Basic Principle4 and Rules 2 and 11 of the Code of Ethics.

Accordingly, the Complaints Board upheld the complaint in part.

Decision: Complaint Upheld (in part)