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DECISION

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This vital information Appendix 4 of the CST Feasibility Report, containing the detailed costings has been withheld by the CST, and its partner the DCC,

     07/220

    DECISION

    Meeting 10 July 2007

Complaint 07/220

     Complainant: P. Attwooll

     Advertisement: Our Stadium Visionaries Club Incorporated

Complaint: The OUR STADIUM OTAGO newspaper advertisement said:

Attention all Ratepayers

     If you are a ratepayer

     look out for a written

     questionnaire from

     your council.

     This is a crucial test of

     public support for the

     new stadium.

     Please fill it out now

     And say YES for

     Our Stadium!

    Help make

    OUR STADIUM

    happen

     IT IS AFFORDABLE

Over 10 years it is only $1.34 a week for an average Dunedin

    home worth $261,000. In some years it is as low as 13 cents

    and in the worst years it’s $1.74 a week. It is even cheaper if

    you live in the regions, at around 50 cents a week on average.

    That’s a lot less than things you buy every day

. $3.50 for a sandwich . $3.50 for a latte

    . $1.60 to park in the City Centre (1hr) . $5.50 for a Speights (pint)

Dunedin City Council only wants $1.34 a week from ratepayers so

    they can build a world-class, multipurpose, fully covered stadium

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    that is without rival in New Zealand. We get rugby tests back and

    we keep our Highlanders here in Otago.

     Join: www.ourstadium.co.nz

Complainant, P. Attwooll, said:

    I wish to make a complaint against the Dunedin lobby group, Our Stadium, and the Otago Daily Times, for allowing the publication of advertisements which mislead the rate paying public re the costs to them of borrowing money to build a new, covered stadium in Dunedin.

    By way of background Dunedin is in the middle of a very divisive debate over whether to build a new stadium to replace Carisbrook. The cost estimate for this stadium is $188m. This is the lowest of two quantity surveyor cost estimates. The higher one is $240m, but the Carisbrook Stadium Trust has gone for the lower figure. The DCC is set to contribute $91.4m, the Otago Regional Council $37.4, The Community Trust of Otago, $10m 'in principle' and the University of Otago, $10m in cost savings to its own building programme through 'synergies'. The balance is to be sourced from elsewhere which, at this stage, is unclear. At this stage submissions have been sent to the Dunedin city Council and hearings will be held in late May. A decision to go ahead or not will be made in June. The ORC has to make its final decision by July next year, but indications are that this will just be a formality. The Community Trust of Otago is currently being questioned re irregularities surrounding its decision to support the project 'in principle'. This is with the Minister of Finance at the present. The whole project, and how it has been progressed, is littered with conflicts of interest between members of the DCC (councillors and administration), the Community Trust of Otago and the Carisbrook Stadium Trust, but which in the end, in collusion with its partners, has opted to just promote Option la, a new covered stadium at Awatea St. There has been a concerted campaign by opponents of a ratepayer funded stadium to get information re the CST's Feasibility Report and its appendices and this has been resisted as much as possible till stronger pressure has come to bear. Now the proponents of the new stadium, through their spokesman, M. Farry continue to make false claims re the costs, purposes etc of a new stadium directly at odds with information in their own feasibility report.

    The 'Our Stadium' group, the subject of this complaint, is a ginger group set up by supporters for a new stadium. The key players are part of what is referred to down here as the `Tartan Mafia', a group of largely wealthy people who have held the reins of power in Dunedin for a long time. It is lead by Sir Clifford Skeggs, an ex mayor and prominent, long term business identity in Dunedin. Other identities have been roped in, but I wonder whether they have seriously looked into the issue- instead have been carried away by the `vision thing' that such projects on the surface seem to convey.

    Now for the specifics of my complaint. I enclose a copy of a costly, half - page advertisement paid for by 'Our Stadium'. The first advert appeared on April 28, 2007 on page 2 of the ODT. This advert appeared at least twice again after this date, but I'm not sure of the exact dates. I have also enclosed a copy of another formatted advert, The Great Stadium Debate 2007, Fact vs Fiction which appeared in the ODT on May 4, 2007.

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    As for the large Our Stadium debate you will note the claim that 'over 10 years it is only $1.34 for an average Dunedin home worth $261,000.’ ……… Dunedin City Council

    wants only $1.34 a week from ratepayers so they can build a world class, multi

    purpose, fully covered stadium.... ' You do the figures! You will notice this falls far short of the DCC's contribution of $91.4m not to mention the interest, future maintenance

    costs and escalation costs. The $1.34 figure in fact comes to $36,930,400. I enclose a copy of an ODT report of April 30, 2007 where Cr L. Vandervis points out the 'blatant, bare-faced lie' of the Our Stadium advertisement, giving the real truth behind the

    figures which this group claims. You will also notice mention is made of the 'multi

    purpose, multi use venue'. Great play has been made of this by the CST and the DCC.

    M. Farry, the chairman of the CST has even gone as far as saying, elsewhere, the

    stadium 'is not just all about rugby'! In this advert Our Stadium says with a new stadium 'we get rugby tests back and we keep our Highlanders here in Otago'. This is patently

    nonsense as key rugby players are attracted by the bigger money offered outside of

    Otago. It is also acknowledged that even a new, 30,000 seat stadium will not have the

    seating capacity for Category A tests. Furthermore, the advertisement claims the

    proposed stadium is 'affordable.' This is questionable when we consider there are only 53,000 ratepayers and 60% of the Dunedin population earns less than $20,000 per

    annum. Dunedin is not a higher income, higher population base city like Wellington, (a city council which gave a $15m 'loan' to their trust to build the Westpac stadium.). Our DCC, by contrast, is proposing a $91m gift!

I believe both advertisements contravene the Advertising Code of Ethics set out on

    page 17 of your Advertising Codes of Practice - April 2007 handbook. In particular I

    believe they break Rule 2: Truthful Presentation. These advertisements are

    deliberately misleading, an attempt by a political lobby group to manipulate public

    opinion to a cause which suits the self interests of a group of people who have their

    own financial and political agenda for promoting a new stadium.

I am concerned that the Otago Daily Times has allowed the Our Stadium lobby group

    to publish these adverts without questioning their ludicrous figures. You will note that one of the founding members of the Our Stadium group is N. Smith, one of the three

    owners of the ODT, along with his brother, J. Smith, and wealthy Dunedin

    businessman, T. Scott. I enclose a copy of the ODT story on Our Stadium when they

    first emerged. I believe it is negligent of the ODT to allow these advertisements to

    appear when they could have investigated the Our Stadium figures and claims by

    looking at the DCC website where the feasibility report and its appendices are located (or at least where some of the report and its appendices are published). I also believe

    that Our Stadium has to be called to account for its false advertisements.

Thank you for consideration of this matter.

The Chairman ruled that the following provisions were relevant:

Code of Ethics

    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,

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    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 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, Our Stadium Visionaries Club Incorporated, said:

We have received your letter dated 1 June and respond on behalf of the Incorporated

    Society -- Our Stadium Visionaries Club. There was no advertising agency involved

    and the placements were made directly with the Otago Daily Times advertising

    department.

Under the Code of Ethics Rule 2, P. Attwooll appears to be making three complaints

    about truthfulness which are completely unfounded and are rejected in their entirety by

    our organisation.

The first is a suggestion that our advertisements mislead the ratepaying public in

    terms of the amount ratepayers would pay for the proposed new Stadium near the

    university campus and Logan Park.

The figure of $1.35 per week for an average ratepayer and used by Our Stadium was

    taken directly from information that was written and produced by the Dunedin City

    Council and distributed to Dunedin City ratepayers.

However DCC issued a subsequent analysis that reduced the average weekly cost to

    around $1.13 a week and we changed our copy in subsequent advertisements to

    reflect this more relevant figure to support our advocacy for the stadium and its

    affordability.

The second relates to our contention that the stadium will be multi-purpose and

    multi-use. This is clearly nonsense. The complaint completely overlooks the use that

    will be made of the stadium by the university and its potential for conferences,

    weddings or large scale social functions.

In terms of it being multi-sport we enclose an interest from the Wellington A-League

    soccer team the Phoenix and submissions from the CEO of the Academy of Sport K.

    Smith on potential other uses of the Stadium that were presented to the DCC

    Hearings Committee during consultation. We also enclose a press release from the

    local softball association which clearly points to mounting interest from codes other

    than rugby to use the ground.

The third relates to winning back All Black tests and retaining the Super 14 rugby

    franchise in Dunedin. The NZ Rugby Union is keen to reintroduce tests to Dunedin, but

    will only do so if the venue is up to international standard. The Otago Rugby Union

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    acknowledges that it will also lose the Highlanders Super 14 franchise without an appropriate international venue.

    The young population of Dunedin is student and transient and rugby players are expected to move away from Otago once they graduate. But each year a new intake of student rugby players replace those that leave. We enclose submissions to the DCC Hearings Committee from. the Highlanders Trust, ORC chief executive R. Gray and former international rugby player J. Leslie, which clearly articulate the rugby situation.

    Regarding Code of Ethics Rule 11 in the expression of opinion in advocacy advertising it is very clear that the advertisements have been inserted by the Our Stadium group, which is well known in the region as a proactive supporter of the stadium. These advertisements featured the Our Stadium logo and invited readers to join the organisation by contacting the Our Stadium website.

    The Our Stadium group has featured extensively in the news pages of the Otago Daily Times outlining its intention and philosophy following its establishment to mobilise the normally silent majority in support of the new stadium.

P. Attwooll confirms the widely understood rationale for Our Stadium's existence in his rdletter (3 paragraph of Page 1) when he states...

    "The Our Stadium group, the subject of this complaint, is a ginger group set up by supporters for a new stadium"

    We trust that we have provided you with sufficient information to dismiss all aspects P. Attwooll's complaint.

The Media, Otago Daily Times, said:

Thank you for your enquiry.

    The "Stadium Debate" has caused a huge furore in Dunedin the likes have not been seen in my memory. The debate has become personal and bitter in a lot of cases as is the case with this complaint. It lays unfounded insinuations at the feet of the publishers of the Otago Daily Times which are totally unfounded and unnecessary.

    The Stadium supporters club approached us with a series of advertisements they wanted to run. These were handled in the normal way with all the right questions being asked.

1) What was the source of the figures stated regarding rate payments?

    Answer: These were taken directly from published D.C.C flyers on the stadium.

     - We checked this and found it to be correct.

    2) Was the "Our Stadium" group clearly identified in the advertisements?

Answer: Yes.

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    Once we were satisfied with these answers this advertisement we felt came under

    Section II of the code of ethics "Advocacy Advertising".

We feel the feelings expressed were robust opinion and we had no hesitation in

    publishing the advertisements.

    Deliberation

The Complaints Board perused all relevant correspondence and the advertisement. It

    noted P. Attwooll’s view that the advertisement was misleading.

The Chairman directed the Complaints Board to consider the complaint with

    reference to the Code of Ethics, Rules 2 and 11.

Turning to the complaint, the Complaints Board noted the advertisement had been

    placed by a group called “Our Stadium Otago” with the purpose of alerting ratepayers

    to “look out for a written questionnaire form your council”. As such it came within the

    definition of an advocacy advertisement and the provisions of Rule 11 of the Code of

    Ethics. The advertisement advocated the position of the advertiser on a matter of

    public interest, and the identity of the advertiser was made clear. The Complaints

    Board therefore took notice of the principles developed in previous Decisions relating to

    advocacy advertisements of this nature, and which are in part now codified in Rule 11.

    ADVOCACY PRINCIPLES

1. That Section 14 of the Bill of Rights Act 1990, in granting the right of freedom of

    expression, allows advertisers to impart information and opinions but that in

    exercising that right what was factual information and what was opinion, should

    be clearly distinguishable.

2. That the right of freedom of expression as stated in Section 14 is not absolute as

    there could be an infringement of other people's rights. Care should be taken to

    ensure that this does not occur.

3. That the Codes fetter the right granted by Section 14 to ensure there is fair play

    between all parties on controversial issues. Therefore in advocacy advertising

    and particularly on political matters the spirit of the Code is more important than

    technical breaches. People have the right to express their views and this right

    should not be unduly or unreasonably restricted by Rules.

4. That robust debate in a democratic society is to be encouraged by the media and

    advertiser and that the Codes should be interpreted liberally to ensure fair play

    by the contestants.

5. That it is essential in all advocacy advertisements that the identity of the

    advertiser is clear.

The Complaints Board reiterated that it was not its role to unduly restrict discussion or

    decide issues of public debate, as such discussion was an integral part of a functioning

    democracy. The Complaints Board recognised that local issues of the nature

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    discussed in the advertisement often provoked robust expression of strongly held

    opposing views and there was provision in the Advertising Codes for this, as long as

    opinions were clearly expressed as such and not purported to be facts.

However, if an advertiser made a claim in an advertisement and that was challenged

    by way of a written complaint, the onus lay with the advertiser to substantiate that

    claim.

In this instance the Complaints Board was fully satisfied that the Advertiser had

    presented sufficient substantiation for use of the claims made in the advertisement.

    It noted that the stated amount ratepayers would pay for the proposed new Stadium near the university campus and Logan Park had been taken directly from information

    that was written and produced by the Dunedin City Council and distributed to Dunedin

    City ratepayers.

The advertiser had explained that the stadium would be “multi-purpose and have

    multi-uses, as it would be available for use by the university, and also for conferences,

    weddings and other large scale social functions.

The advertiser had also substantiated that the stadium would have a multi-sport

    function, with expressions of interest already received from a soccer team , the CEO

    of the Academy of Sport and the local softball association.

The situation regarding winning back All Black tests and retaining the Super 14 rugby

    franchise in Dunedin had also been clarified, in the advertiser’s submission.

Having made the above observations, the Complaints Board said that the

    advertisement was not misleading and did not breach Rule 2. Furthermore, it fully

    complied with the requirements of Rule 11 of the Code of Ethics, and was not in

    breach of that provision.

The Complaints Board ruled to not uphold the complaint.

    Decision: Complaint Not Upheld

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    DECISION

    Chairman’s Ruling

    20 August 2007

Complaint 07/220

Appeal 07/019

     Complainant/Applicant: P. Attwooll

     Advertisement: Our Stadium Visionaries Club Incorporated

Complaint: The OUR STADIUM OTAGO newspaper advertisement said:

Attention all Ratepayers

     If you are a ratepayer

     look out for a written

     questionnaire from

     your council.

     This is a crucial test of

     public support for the

     new stadium.

     Please fill it out now

     And say YES for

     Our Stadium!

    Help make

    OUR STADIUM

    happen

     IT IS AFFORDABLE

Over 10 years it is only $1.34 a week for an average Dunedin

    home worth $261,000. In some years it is as low as 13 cents

    and in the worst years it’s $1.74 a week. It is even cheaper if you live in the regions, at around 50 cents a week on average.

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    That’s a lot less than things you buy every day

. $3.50 for a sandwich . $3.50 for a latte

    . $1.60 to park in the City Centre (1hr) . $5.50 for a Speights (pint)

Dunedin City Council only wants $1.34 a week from ratepayers so

    they can build a world-class, multipurpose, fully covered stadium

    that is without rival in New Zealand. We get rugby tests back and

    we keep our Highlanders here in Otago.

     Join: www.ourstadium.co.nz

    Complainant, P. Attwooll, said: I wish to make a complaint against the Dunedin lobby group, Our Stadium, and the Otago Daily Times, for allowing the publication of

    advertisements which mislead the rate paying public re the costs to them of borrowing

    money to build a new, covered stadium in Dunedin….”

The Chairman ruled that the following provisions were relevant:

Code of Ethics

    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 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 Complaints Board ruled at its meeting on 10 July to Not Uphold the complaint.

    The Deliberation said (in part): “… Turning to the complaint, the Complaints Board noted the advertisement had been placed by a group called “Our Stadium Otago” with the purpose of alerting ratepayers to “look out for a written questionnaire form your council”. As such it came within the definition of an advocacy advertisement and the

    provisions of Rule 11 of the Code of Ethics. The advertisement advocated the position

    of the advertiser on a matter of public interest, and the identity of the advertiser was

    made clear.

The Complaints Board reiterated that it was not its role to unduly restrict discussion or

    decide issues of public debate, as such discussion was an integral part of a functioning

    democracy. The Complaints Board recognised that local issues of the nature

    discussed in the advertisement often provoked robust expression of strongly held

    opposing views and there was provision in the Advertising Codes for this, as long as

    opinions were clearly expressed as such and not purported to be facts.

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    However, if an advertiser made a claim in an advertisement and that was challenged by way of a written complaint, the onus lay with the advertiser to substantiate that claim.

    In this instance the Complaints Board was fully satisfied that the Advertiser had presented sufficient substantiation for use of the claims made in the advertisement…

Having made the above observations, the Complaints Board said that the

    advertisement was not misleading and did not breach Rule 2. Furthermore, it fully complied with the requirements of Rule 11 of the Code of Ethics, and was not in breach of that provision.”

Application for Appeal

Applicant, P. Attwooll submitted: Thank you for the opportunity to reply to the

    complaints I have brought before the ASA re the advertisements of the Carisbrook Stadium Trust - complaint 07/221 and 'Our Stadium' - complaint 07/220.I wish to appeal the decision not to uphold both complaints.

    As is quite evident, which all parties can agree on, is that the stadium debate has been heated and divisive in our community-something common to the building of new stadiums elsewhere in the country and overseas. I notice the respondent (presumably Malcolm Farry, CST Chairman and spokesman, but not identified) to my complaint 07/221 refers to ' P Attwooll and some of his acquaintances' or further on in the paragraph 'he and his cohorts' and that he attributes to myself the ability 'to derail the project' with my complaint. I find this extraordinary that one person has such a capacity! By referring to 'acquaintances/ cohorts' he is clearly trying to minimize the depth of the opposition in the community to the project. The implication is that myself and a small group of others are a tiny minority of rabble rousers. This is clearly not the case as acknowledged by the ODT and the amount of print that has gone into the paper on the stadium issue. Malcolm Farry has said on numerous occasions that he welcomes 'robust debate'. Yet when he is challenged by the likes of my complaint, for example, I am accused of being dishonest, outlandish, negative and bereft of ideas for genuine debate. Myself and others have continually asked him pertinent questions re the viability of the project for a city of Dunedin's size and he has become increasingly irritated by those questions. His replies to letters via the ODT have become increasingly evasive when asked for specific details and he often claims he has already answered many of the same questions before- when he has not.

    In the end, no matter what the background issues are, all the ASA has to go on are the advertisements put before them and the claims that seem to be made by those advertisements. Figures can be manipulated and claims or opinions or assertions can be claimed as facts.

    The first complaint - Our Stadium Otago Newspaper Advertisement Complaint 07/220.

    Once again, you only have to do the figures. $1.34pw for an average Dunedin home of $261,000 over 10 years for approximately 53,000 ratepayers comes to $36,930,400. Is this short of the touted $188m cost of a new covered stadium? Clearly, yes. Does this include interest rate rises since the $188m mentioned in February this year? No. Does this include costs like on- going maintenance etc? No. Does this include 8% interest on

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