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It is in this supervisory capacity that the Commission reluctantly but properly brings this appeal. [20] The Broadcasting Act regulates the broadcast of election programmes by broadcasters. A broadcaster is a person who broadcasts programmes and broadcasting relevantly means the transmission on television or radio of programmes for reception by the public using broadcasting receiving apparatus.14 An election programme is a programme that encourages or persuades or appears to encourage or persuade voters to vote for, or not to vote for, a person or political party, or which advocates support for or opposes a political party or candidate.15 [21] The Broadcasting Act provides for funding, which the Commission allocates, for political party broadcasts within election periods,16 and it authorises election programmes broadcast for a named constituency candidate for a fee.17 The publicly owned broadcasters must provide time at no cost for the broadcast of the opening and closing addresses of eligible political parties.18 It otherwise generally prohibits broadcasting of election programmes at any time.19 The prohibition does not extend to news, comments or current affairs programmes.20 [22] An election programme may also be an election advertisement, but the coverage of the two statutes is not entirely co-extensive. As we go on to explain, the Electoral Act covers all forms of publication and the definition of election advertisement extends to types of parties or candidates, while the Broadcasting Act is confined to broadcasters and the definition of election programme does not extend to issues advocacy unless it supports or opposes a party or candidate. The qualifications to the definition of election advertisement and the prohibition on broadcasting election programmes are not identical; the former excludes editorial content and unpaid publication on electronic media of an individual’s personal 14 15 16 17 18 19 20 Broadcasting Act 1989, s 2(1), definitions of “broadcaster” and “broadcasting”. Section 69(1), definition of “election programme”. Sections 74–76B. For a useful explanation, see Alliance Party v Electoral Commission [2010] NZCA 4, [2010] NZAR 222 at [16]–[23]. Section 70(2)(c). The fee is an election expense for Electoral Act purposes, counted towards the spending limit on election advertising: Electoral Act, s 205. Broadcasting Act, ss 71–71A, 73, 75–76 and 77A. Section 70(1). Section 70(2B).

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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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