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[104] Comments is not defined, although the statutory language envisages that it means something different from news or current affairs programmes, and further that a comment need not be a programme in itself; in other words, it may be made as part of a programme, such as a personal political view expressed by a caller to a talkback show. The legislature has chosen not to use the term editorial content, indicating that a comment need not be the opinion of the broadcaster or subject to editorial oversight either. What matters is that it is the comment or opinion of someone other than a political party or candidate. As Mr Butler submitted, this interpretation does not strain the statutory language and it is consistent with the legislative purpose of regulating election broadcasting by political parties and candidates while allowing others to comment freely. The song and video were not election programmes [105] As noted, the Commission’s view is that the song was an election programme and so was the video. Clifford J disagreed, and so do we. [106] We begin by recalling that the song was to be broadcast on Free FM Hamilton as part of a “politics based radio show”. In our opinion the Commission was wrong to characterise the song as an election programme without regard to context. It was not a party or candidate advertisement, and if it was to be broadcast as part of another programme, a judgment had to be made about that programme. The responsibility for making that judgment lay with the broadcaster, but the Commission should not have offered a firm opinion without knowing more. [107] The evidence is silent about the programme’s content. Without knowing anything about it, we cannot predict what impact the programme would have had upon voters. Mr Key, 94 We acknowledge that the song amounted to advocacy against but that is not the end of the matter; for all we know, the presenter may have planned to castigate Mr Watson for the extravagance of his opinions, or to balance the song with an opposing perspective. 94 It will be recalled that an election programme, unlike an election advertisement, need not advocate by reference to views or positions adopted or not adopted.

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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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