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[41] (c) a registered promoter: (d) an unregistered promoter who does not incur advertising expenses exceeding $12,600 (or such other amount as is prescribed by the Governor-General by Order in Council under section 266A) in relation to election advertisements published during the regulated period. It is an offence wilfully to promote an election advertisement unless authorised under this provision:42 (3) [42] Every person who wilfully promotes an election advertisement without being entitled to do so under subsection (1) is guilty of an illegal practice. A promoter is a person who “initiates or instigates” an election advertisement that is published, or is to be published.43 An election advertisement may be published only if it includes a promoter statement giving the promoter’s name and address.44 [43] Promoters may be registered or unregistered. An unregistered promoter is, speaking generally, a promoter who does not have official status as a registered promoter or candidate or party or person involved in the affairs of a candidate or party.45 An unregistered promoter may not incur advertising expenses exceeding $12,600 during the regulated period.46 Advertising expenses relevantly include the costs of preparation, design, composition, printing, postage and publication of an election advertisement.47 [44] Publish has an extended meaning, in relation to an election advertisement, of bringing to the notice of a person in any manner.48 It includes displaying on any medium and distributing by any means including disseminating on the internet or other electronic medium. However, this definition applies only to an election advertisement as defined, and then unless the context otherwise requires. It also 42 43 44 45 46 47 48 Electoral Act, s 204B(3). Section 204A, definition of “promoter”. Section 204F. Section 204A, definition of “unregistered promoter”. Section 204B(d). A different limit on advertising expenses can be prescribed by the Governor-General by Order in Council: s 266A(1)(a). Section 3E(1)(a). Section 3D.

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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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