Labor’s “Mediscare” campaign. The Coalition and industry claims that Labor’s housing policy would deflate – and inflate – property prices. The Brexiteers’ pitch that the leaving the European Union would free up £350 million a week for the UK health system. These are not Goebbelsian “big lies”.
But when campaigns are built on manipulation and occasional mendacity, trust in democratic politics is corroded. Can the law play a role in redressing these risks?
The idea of regulating “truth” in political speech is not new, nor is it easy. Political debate and truth can seem like oil and water. Politics is slippery. And it floats above the realm of clarity and rationality.
Truth in political advertising
Businesses, in trade and commerce, must avoid “misleading or deceptive conduct”. This rule even captures innocent mis-statements. They can suffer civil sanctions at the hands of the ACCC as the consumer watchdog, or rival companies. Why not mirror such laws in the political and social sphere?
Several parliamentary reports have called for truth in political advertising regulation. Australia briefly had such a law between the 1983 and 1984 elections. It was Section 161 (2) of the then national electoral act. And South Australia and the Northern Territory retain laws against material errors in electoral ads.
The minor parties are especially supportive of the idea. After all, they don’t have the resources to fight back against slurs, whether from other parties or the media. But they might be careful what they wish for. Smaller players also are the least able to afford to defend themselves from legalistic regimes.
The major parties – they who must be obeyed, legislatively – are less inclined to agree. Take this response from the Howard government in 1998:
The government firmly believes that political advertising should be truthful in its content. However, any legislation introduced to enforce this principle would be difficult to enforce … voters, using whatever assistance they see fit from the media and other sources, remain the most appropriate arbiters of the worth of political claims.
Without such rules, the law of politics in Australia is fairly thin. There is the law of defamation. But that is slow, costly to invoke, and only protects individual reputations. There are sanctions for misleading parliament. But these are sparingly applied and only cover MPs in their own house or evidence to parliamentary inquiries.
Australia also has rules requiring “authorisation” of most political advertising. But such disclosure rules apply more easily to traditional than electronic campaigning. And at best they give formal information about who is speaking. They don’t touch the content.
Promises and visions splendid
It’s one thing to invoke truth-in-campaigning as a virtue. It’s another to define what it would involve.
Without sounding post-modernist, the ultimate question is “what is truth in politics”? Much of politics is beyond truth. It’s about advocating a vision and sense of trust. Not just puffery: good political oratory has always been about galvanising people around shared ideals for future action.
Take the concrete examples we began with. “Mediscare” contained a linguistic fudge – “privatisation” as a pejorative for outsourcing and cuts. The law cannot tie down language. But it also involved mis-characterisations of government policy, whose truth can be judged.
Then there was negative advertising about negative gearing. It was mostly hype, based on contentious modelling. Hype can be untruthful. But judging the value of economic predictions is not going to be a fruitful exercise for a tribunal in an election.
What of the Brexit claims? A claim like a “£350 million saving”, without mentioning rebates, can be adjudged false. But the sting was the link to health funding. That was a promise, about which only time could tell, and then only if those making the promises came to power.
Assessing any promise is tough. A judge once said “the state of a man’s mind is as much a fact as the state of his belly”, but psychologists would disagree. Australians were agitated in the Gillard-Abbott years over “lies” on carbon tax and budget cuts. But what we really meant was promises should stick, unless underlying circumstances changed.
The what and whom of truth in politics
It’s false to suggest one can regulate “truth in politics”. The law’s might is limited. First, in what it can cover.
The short-lived 1980s rule covered only election-period advertisements containing “statements” that were “untrue and likely to be misleading or deceptive”. Reasonable ignorance was a defence.
Similarly, the ongoing South Australian rule only covers statements in election advertisements. And then only statements that purport to be factual, and which are materially misleading – that is, misleading in a significant way, given the context and degree of error.
Then there’s the question of process, of who will arbitrate. Electoral commissions run a mile from becoming embroiled in partisan tit-for-tattery. That said, the South Australian commission is not disrespected because it can request an advertisement be fixed or dropped.
Judges are also shy of getting involved. But in South Australia, this only happens after an election, if a very close result is challenged, or if the authorities seek a fine.
Finally there’s the problem of abuse of the complaints process, of parties crying wolf.
I used to think the “who” question was insuperable. On balance I now think it is answerable. Not with judges who are removed from the realities of political debate, but with a tribunal of respected former politicians to rule on complaints.
Along with J.S. Mill, the 19th-century liberal MP and public intellectual, the traditional riposte to the urge to regulate is “let more speech flush out false speech”. That is echoed in the 1998 response above. But the case for doing nothing is growing weaker. And the case for experimenting with regulation to improve deliberation is more compelling.
Certainly self-regulation is as important as formal regulation. But self-regulation comes and goes like the dew. The project of media-based “fact-checking” held promise. But it only reaches a small audience. And, in the ABC’s case, it is being defunded.
Commercial media used to play a role. The federation of commercial TV stations, or FACTS, once heard complaints against misleading political advertising, as did the old Press Council. Each has washed its hands of the matter, fearful of offending the big parties who are major advertisers. Free TV Australia now just vets broadcast ads to ensure they are properly authorised and not defamatory.
Faced with the evidence of a butchered cherry tree, a young George Washington supposedly could tell no lie. Even if modern politicians had such proverbial sincerity, competitive elections breed advocates who overlook nuances, in their quest to win an argument to advance their cause. Regulation is no panacea, but it may help.
Authors: Graeme Orr, Professor of Law, The University of Queensland