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[16] Ironically but unprofitably from Mr Watson’s perspective, the Commission’s intervention earned the song a good deal of publicity, got him some interviews on television and radio, and resulted in the song being played as part of news programmes. The definitions of election advertisement and election programme [17] We begin with a concise overview of the two Acts, so far as relevant. The Electoral Act regulates publication of election advertisements at any time and limits what can be spent on them in the regulated period of three months before polling day.6 Election advertisement means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a type of candidate or party by reference to views or positions adopted or not adopted.7 The definition excludes, inter alia, editorial content and personal political views published on the internet.8 [18] No one may initiate or instigate an election advertisement who is not a party secretary or candidate, a registered promoter or an unregistered promoter, and every advertisement must include a promoter statement disclosing the promoter’s name and address.9 The legislation sets limits on what may be spent during the regulated period by candidates, parties, and registered and unregistered promoters respectively.10 Consistent with these limits, advertisements encouraging voters to vote for a party or candidate must be authorised by the party or candidate, 11 and records must be kept of all election expenses incurred.12 The Act polices these limits with a number of offences. [19] The Commission has a supervisory role; it must advise any person who asks whether in its opinion an advertisement is an election advertisement, and it must also report to the police the facts on which it believes an offence has been committed.13 6 7 8 9 10 11 12 13 Electoral Act 1993, s 3B. Section 3A. Section 3A(2)(c) and (e). Sections 204B and 204F. Sections 205C, 206C, 206V and 204B(1)(d) respectively. Sections 204G and 204H. Section 204E. Sections 204I and 204J.

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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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