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meanings under NZBORA. Interpretation always addresses language and purpose,27 and in this case the legislation aims to strike a balance between protected rights. That being so, it would be artificial to begin by interpreting the language without reference to those rights. [28] The first issue concerns the meaning of advertisement in the Electoral Act. Clifford J held that the term means a commercial; that is, a radio or television advertisement.28 For that reason, the song and video were not advertisements at all.29 The Commission says, pointing to the decision in Greenpeace, that an advertisement is simply a notice or announcement to the public in any medium. It contends that a rights-consistent interpretation of the legislation is achieved by taking a robust view of what can reasonably be regarded as encouraging or persuading voters to vote in particular ways. [29] The second issue concerns the meaning of election programme in the Broadcasting Act. Clifford J held that the term means an election programme that has been procured by a political party or others who are electioneering. 30 The Commission says that an election programme is anything broadcast by a broadcaster that has the effect or apparent effect of encouraging voters to vote for, or not to vote for, or otherwise supports or opposes, a candidate or party. [30] The third issue concerns the meaning of editorial content in s 3A(2)(c) of the Electoral Act, and the fourth concerns the meaning of comments in s 70(3) of the Broadcasting Act. Clifford J held that these terms have a broad meaning, reflecting an underlying distinction between participation in the election process and commentary upon it.31 The song and video could be seen as comment or editorial content.32 The Commission says this interpretation would leave wholly unregulated any advertisements or programmes that seek to persuade voters but are not the work of a party or candidate. 27 28 29 30 31 32 Interpretation Act 1999, s 5(1). High Court judgment, above n 1, at [190]. At [191]. At [208]. At [222]. At [226].

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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
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Election Judgments - IFES

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Electoral Commission v. Watson

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