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Parallel campaigners as the intended target of regulation [62] This brings us back to the definition of a promoter as a person who initiates or instigates an election advertisement that is published. The definition is over-inclusive when examined against the objectives of pt 6AA, which was enacted for two distinct purposes. First and foremost, it was intended to identify a class of persons permitted to promote election advertisements. In doing so, the definition supports the Act’s limits on amounts that may be spent on advertising. [63] Consistent with this primary purpose, the Act contemplates that a single promoter may comprise an incorporated or unincorporated association of persons. That is confirmed by s 204L, which provides that a representative of a promoter who is not an individual or company may apply for registration on its behalf and anticipates that a promoter may include a trust. If it were otherwise the Act’s monetary limits on election advertising might be readily evaded. [64] The second purpose of pt 6AA was that of ensuring transparency in election advertising. What distinguishes a parallel campaigner from any citizen who chooses to engage in political advocacy via any medium of communication other than face to face speech is the expenditure of money or the existence of a public interest in knowing the promoter’s identity. The latter interest is likely to arise only where the promoter represents some group or vested interest whose identity ought to be disclosed so that voters are not confused or misled; or to put it another way, so they can evaluate what they are being told before exercising their votes. That avoiding confusion is an objective of the legislation is confirmed by s 204M(c)(ii), which allows the Commission to refuse a promoter registration where its name is likely to confuse or mislead voters. [65] This points to a difficulty with the legislation and a need for reform. The Act regulates the publication of election advertisements by anyone, not just participants and their parallel campaigners. That is why the parties have focused on the definition of election advertisement. But that definition does not fully protect political speech by non-participants in the electoral process. People who are not parallel campaigners or representatives of vested interests, and who do not incur any

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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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