Activist seeks apology after alcohol licensing trusts found to have misled over charity spend
An activist who has now won two Advertising Standards Authority rulings against the licensing trusts which control alcohol sales in West Auckland is demanding they apologise to him.
The ASA this week upheld a complaint from Nick Smale that the Portage and Waitakere Trusts had misled the public in an advertising brochure which claimed they returned 47 per cent of profits to the community.
Smale argued they’d never actually given back more than 23 per cent in recent years (and in one year, only returned 6 per cent), and the ASA’s decision broadly backed his analysis.
Now he wants the Trusts to apologise to him, saying their submissions to the ASA were defamatory of him.
Much of the Trusts’ lengthy legal argument focused on Smale, the spokesman for a group called West Auckland Licensing Trusts Action Group, which is campaigning to end their liquor monopoly.
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One of the Trusts’ arguments was that Smale was “misusing” the ASA process to electioneer (he filed the complaint before the recent local elections, and was an unsuccessful candidate for the Portage Trust). They also claimed he was a “competitor” to the Trust because of his stance to end the monopoly and said he had complained about the same issue to the Auditor-General, a claim he denies.
Smale and the Trusts are frequent sparring partners, and he won another ASA decision against them last year over another advertisement which was ruled to be misleading.
Smale said: “They went to town on me [in their submission].” His complaint has been acknowledged by the two trusts’ presidents, Linda Cooper and Pam Nuttall.
Smale said he wouldn’t pursue court action, as it wasn’t worth it, but said: “If the definition of defamation is that they have besmirched my reputation, then yes, they have.”
In a statement, Trusts chief executive Simon Wickham said: “Mr Smale has written to both Trusts outlining his views and, as with all correspondence to the Trusts from members of the public, it will be received and considered at the next meeting.”
Smale argued that the offending advert – part of an information booklet given out by the Trusts about their activities – could have helped skew the election by painting the Trusts in such a favourable light that voters would want to maintain the status quo. His group secured one seat on each board in the recent polls.
The brochure in question claimed that in a “typical year” the Trust gave back 47 per cent of their profits in charitable givings. Actually, the figure related to the Trusts’ planned returns to the community in 2019-2020 – but their recent record is far less impressive. The ASA’s decision noted that they could not find any years in which 47 per cent had been returned. The ASA said the Trusts breached Principle 2 of their code, that advertisements must be truthful, balanced and not misleading.
“They are saying the trusts didn’t substantiate their numbers, and in their submissions they don’t even try to,” said Smale. “They don’t even bother… but there’s 17 pages of legal submissions.
“Because of this [decision], we will get some coverage and people will say ‘is it really 47 per cent?’ But if we hadn’t said anything, that number would have stuck in the minds of the public [as true].”
The Trusts argued that Smale was wrong to say “the average consumer” would interpret a typical year to mean recent years. They argued the average reader of the entire booklet would have concluded that a ‘typical year’ meant “the direction of the Trusts going forward”. The Trusts have a public goal of giving away $5m in 2020.
The Trusts also argued the brochure was for information, not advertising, so the ASA had no jurisdiction and the claim that Smale could not complain because he was a “competitor”. He said that was the Trusts trying to stifle his voice because he had a different political outlook to the majority of their current board.
Wickham said the Trusts had immediately updated the online version of the guide and were removing the printed version from their stores and venues.
“It was never our intention to mislead the public. The facts in the online guide about our Giving Back are correct – we will give back $3.5 million to West Auckland this year which is 47 per cent of the discretionary spending signed off in the 2019/20 budget.”
Smale’s WALTAG are still collecting signatures on a petition to force a referendum of West Aucklanders on whether the Trusts’ monopoly should be maintained.