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meaning of the legislation that the Commission administers and it has significant implications for future elections. [3] The Commission has brought this appeal to settle a difference of opinion in the High Court about the meaning of “election advertisement” in the Electoral Act 1993, and to clarify the meaning of “election programme” in the Broadcasting Act 1989. The High Court judgments concerned are those of Clifford J in this case (Planet Key)1 and Mander J in Greenpeace of New Zealand Inc v Electoral Commission.2 Both were delivered in judicial review applications argued shortly before the 2014 election. [4] The first and second respondents created the song and video respectively. The Broadcasting Standards Authority appears as intervenor to support the respondents. The making of Planet Key [5] On 18 September 2012 the Prime Minister responded to a Parliamentary question from Metiria Turei, the Green Party co-leader, about what life would be like on “Planet Key”. He responded:3 I do not know so much about “Planet Key”, but my expectations are it would be a lovely place to live, it would be beautifully governed, golf courses would be plentiful, people would have plenty of holidays to enjoy their time, and what a wonderful place it would be. [6] The first respondent, Darren Watson, is a professional songwriter and musician with a bleak view of New Zealand politics, which he thinks tainted by greed, obfuscation and wilful dishonesty. The Prime Minister’s answer inspired him to write the song Planet Key to express those views in the lead up to the 2014 general election. The music intersects blues and rock genres, and these are the lyrics: Never had much of nothing Never had much to show 1 2 3 Watson v Electoral Commission [2015] NZHC 666 [High Court judgment]. Greenpeace of New Zealand Inc v Electoral Commission [2014] NZHC 2135, [2014] 3 NZLR 802. (18 September 2012) 684 NZPD 5269

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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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