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the YouTube and Vimeo websites as publications and the song and video as editorial content of those publications. We are prepared to assume that those in control of those publications may occasionally remove material that is illegal or that they find offensive, but there is no evidence that any editorial judgment is exercised. There is substance in the Commission’s concern that if interpreted too liberally this exclusion could easily extend to parallel campaigners. [76] In conclusion, we agree with Clifford J, albeit for different reasons, that the song and video were not election advertisements. Election programmes [77] We turn to the Broadcasting Act issues. We approach these by outlining the main provisions, examining the concepts of programme and election programme, considering whether the prohibition is confined to election programmes for which the broadcaster has been paid, considering what “comments” means and, finally, assessing whether the song and video were election programmes. The legislation [78] The operative provision is s 70, which prohibits broadcasters from broadcasting election programmes at any time, except as the section allows: 70 Prohibition on paid election programmes (1) Except as provided in subsections (2) and (2A), no broadcaster shall permit the broadcasting, within or outside an election period, of an election programme. (2) Nothing in subsection (1) applies in respect of— (a) (b) an opening address or closing address that is broadcast— (i) for a political party or group of related political parties; and (ii) by TVNZ or RNZ during time allocated to that political party or group of related political parties under section 73(1); or an election programme broadcast for a political party or group of related political parties and paid for with money

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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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