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(a) The reasonable observer from whose perspective the decision is made is sensitive to the exceptionally high value of political speech in a democracy. As the Supreme Court held when considering whether a demonstration intended to interrupt an ANZAC service was offensive behaviour:53 A reasonable person, in a context involving freedom of expression or another right guaranteed by the New Zealand Bill of Rights Act, must surely be a person who is sensitive to such values and displays tolerance for the rights of the person whose behaviour is in question. In other words, the hypothetical reasonable person (of the kind affected) is one who takes a balanced, rights-sensitive view, conscious of the requirements of s 5 of that Act, and therefore is not unreasonably moved to wounded feelings or real anger, resentment, disgust or outrage … (b) It is the effect of the advertisement as a whole that matters. That includes not only its words and images but also its style and apparent purpose. For example, it may be apparent that a publication is intended to be funny or satirical or artistic. It is the advertisement’s effect that matters, but the audience’s appreciation of the author’s purpose may inform effect. For example, readers may have lower expectations of factual accuracy in material that is intended to entertain. (c) The advertisement must be considered in its factual context. Its relationship with other events may inform effect, as may its timing relative to the election. (d) The relevant effect of the advertisement is its tendency to encourage voting for a type of candidate or party, and then only by reference to views or positions held or taken or not held or taken by that type of candidate or party. Thus advocacy about political issues is not election advertising unless it has the effect of identifying the positions of parties or candidates on those issues and encouraging voters to vote by reference to those positions. 53 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 at [64].

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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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