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 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 enormouskilled 3800 seabirds. once

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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

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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 acco
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

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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
2
See
ibid
and
http://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 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
advertisers 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

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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 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 Advertisers 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
Advertisers 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

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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 Advertisers 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
Advertisers 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: Complaint Upheld (in part)