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(e) ensure that the controls on the conduct of election campaigns— (i) are effective; and (ii) are clear; and (iii) can be efficiently administered, complied with, and enforced. As Clifford J explained,24 the 2007 Act was repealed in 2009 and replaced by the Election (Finance Reform and Advance Voting) Amendment Act 2010, but the purpose statement from the 2007 Act remains relevant because the 2010 Act restored its controls on parallel campaigners, reinstating the definition of election advertisement and extending it to internet publications.25 [25] Clifford J did not find it necessary to undertake a full analysis under ss 4 to 6 of the New Zealand Bill of Rights Act 1990 (NZBORA).26 He interpreted the legislation by examining the Commission’s preferred meaning and, if the meaning imposed unreasonably on the right, inquiring whether a more rights-consistent interpretation was available. A challenge to his methodology was abandoned before us, the Commission sensibly recognising that nothing turned on it. The NZBORA question that remains is simply whether the Commission’s preferred interpretation of the Electoral and Broadcasting Acts limits the right to free expression no more than reasonably necessary to achieve the legislative objectives. The issues [26] We turn to the issues, which are outlined in amended grounds of appeal. Ms Aldred resisted the amendment but she could point to no prejudice and we think it necessary to allow the amendment if we are to address the issues squarely. [27] Counsel helpfully listed the issues for decision in a joint memorandum. Our list does not correspond exactly to theirs because we do not find it helpful to identify ordinary and natural meanings before considering alternative rights-consistent 24 25 26 High Court judgment, above n 1, at [145]. As to the extension to internet publications, see (4 May 2010) 662 NZPD 10716–10717. At [106]. New Zealand courts have taken a variety of approaches to the New Zealand Bill of Rights Act interpretive exercise, see Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) and R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.

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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
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Election Judgments - IFES

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Electoral Commission v. Watson

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