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[31] The fifth issue concerns the meaning of the phrase “publication on the Internet … of personal political views by an individual who does not make or receive a payment in respect of the publication …” in s 3A(2)(e) of the Electoral Act. Clifford J held that this exception allows more than one person to express their views collectively on electronic media but excludes views espoused and published by groups of people engaged in parallel campaigning; and further, the reference to payment is intended to capture those who pay to procure publication, rather than someone, such as the respondents, who might receive payment from anyone who chose to purchase the song after its publication.33 The Commission says that because Messrs Watson and Jones collaborated, publication on YouTube and Vimeo did not qualify as personal political views, and because Mr Watson was paid for downloads the song was not exempt either. [32] Having catalogued the issues, we approach them in a slightly different way. We do so for two reasons. [33] First, we consider that the Electoral Act must be read as a whole, including the exceptions or qualifications, and so too the Broadcasting Act. Implicit in this Act-by-Act approach is an acceptance that, as Clifford J explained in a thorough survey of the legislative history that we gratefully adopt, the two statutes were not enacted as a package but rather reflect circumstances prevailing when they were enacted and from time to time amended. Of course this is not to suggest that they should be read without reference to one another. They overlap and we must seek to reconcile them. [34] Second, our approach better isolates the real dispute. At its heart the appeal is less a disagreement about interpretation than a difference of philosophy. The Commission readily accepts that the legislation must be interpreted so that normal political discourse among citizens is not inhibited. That objective is achieved, as the Commission sees it, by casting a wide net but exercising judgement when assessing the effect of any given advertisement or programme upon voters’ behaviour. As the respondents see it, the Commission aspires to regulate too much political speech and is inappropriately inclined to see compliance as costless; in the exercise of its 33 High Court judgment, above n 1, at [230].

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Electoral Commission v. Watson

Judgment

Question Presented: Whether the video and song Planet Key are considered election advertisements and/or election programs.

Alleged Acts: Planet Key is an satirical song and video that was intended to be broadcast during the 2014 Election. The video included commentary on the Prime Minister’s upbringing, early careers, and relationships. The video also included a message note to vote for Mr. Key “if they wanted compassion.” Watson and Jones, the creators of the song and video were not affiliated with any political group and paid all expenses. Watson and Jones sent out the video within the three-month regulated period surrounding the 2014 elections. The Electoral Commission intervened in its broadcasting because the classified the song and video as an “election program” under the Broadcasting Act.

Procedural history: The Commission produced an advisory opinion stating that the broadcast was an election program because it was reasonably considered to encourage voters not to vote for Mr. Key or his political party. Further, the broadcast was considered an election advertisement under the election act because it was avaliable for public download even though it was the individual political views of Watson and Jones. Thus, Watson was required to include a promoter statement in order to comply with the Electoral Act. Watson alleged that his individual political rights were limited because he was not able to publish the song.

Summary: The first considered that the creators of the video and song were not themselves campaigners under the definition of election advertisements. They were only expressing individual political rights. The costs to create the song and video were less than eight hundred dollars, so even if theses were advertising expenses, they were not substantial. Further, the court considered that the material denigrated Mr. Key but did not encourage voting implicitly or explicitly. Thus, any impact would be too indirect to actionable by the court. The song and video had a clear entertainment value rather than factual accuracy. The court considered that video and song were never dispensed through a broadcaster, but through an politics based radio program — except after the Commission’s intervention. Thus, the court could not determine whether the video would surmount to advocacy because the context was not permitted to take place (i.e. balancing with other opinions). The video is not an election program, but rather an election comment because it was offered by individuals that were not candidates or political representation.

Conclusion: The song and video are not election programs or election advertisement. Thus, the appeal is dismissed.

Legal Issue(s)

Social Media

Applicable Law(s): Electoral Act; Broadcasting Act

Region: Asia-Pacific

Country: New Zealand

Language of Decision

English

Court: Appellate Court

Election Type: General

Date of decision: Oct 20, 2016

Geolocation

Latitude: -41.263917612080235

Longitude: 174.77498988598148

: Geolocation

Primary Documents

Electoral Commission v. Watson.pdf
English
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Election Judgments - IFES

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Electoral Commission v. Watson

Primary Documents

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