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political views, while the latter excludes news, comments and current affairs programmes. Protected rights engaged [23] It is common ground that, as Clifford J put it, the Electoral Act and Broadcasting Act work together to promote participant equality and transparency, so protecting the right to vote by restricting free expression, and that restrictions of this kind can be justified in a free and democratic society.21 Parliament intended to limit the influence of money on the electoral process, so preserving equality of voice among participants, and to promote transparency by requiring that parties, candidates and promoters be identified with their election advertisements. [24] These objectives are sufficiently evidenced by the purpose statement in the Electoral Finance Act 2007, which introduced the definition of election advertisement to regulate parallel campaigners — by which we mean persons or organisations who are not themselves candidates or parties but commit resources to campaigning in co-operation with them — and limited the amount that could be spent on advertising during the regulated period. The amendments were motivated, as Clifford J explained, by reaction to two events in the 2005 general election: a religious group, the Exclusive Brethren sect, spent large sums on parallel campaigning for the National Party, and the National and Labour Parties may have circumvented spending caps.22 The purpose statement provided that:23 The purpose of this Act is to strengthen the law governing electoral financing and broadcasting, in order to— 21 22 23 (a) maintain public and political confidence in the administration of elections; and (b) promote participation by the public in parliamentary democracy; and (c) prevent the undue influence of wealth on electoral outcomes; and (d) provide greater transparency and accountability on the part of candidates, parties, and other persons engaged in election activities in order to minimise the perception of corruption; and High Court judgment, above n 1, at [52]. At [143]–[144]. Electoral Finance Act 2007, s 3.

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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

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