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and nonetheless exempts it. It recognises the importance of free political speech by protecting a long tradition in journalism of speaking truth to power. Personal political views expressed via the internet [59] Next is the proviso that any publication on the internet or other electronic media of personal political views by an individual who neither makes nor receives payment for publication is not an election advertisement. In our opinion this proviso is declaratory; it recognises that electronic media allow people to freely disseminate their personal political views to a mass audience and declares that the Electoral Act does not seek to regulate such publication. [60] The exclusion addresses publication by an individual via the internet or other electronic media and the subject matter must comprise political views that have a personal quality. The policy explanation for this, given by the Electoral Legislation Committee, was that a non-commercial expression of views on the internet should be treated as analogous to the expression of those views in person.57 Consistent with that, the legislation does not specify that the personal political views must be those of the publisher; that is, the single individual who brings the content to the notice of others by disseminating it on the internet. The natural meaning is simply that the political views must be personal in nature, as opposed, for example, to the views of a group or organisation or views expressed for some vested interest. That interpretation is consistent with the legislature’s focus on parallel campaigners. [61] It is necessary that the individual who publishes the political views should not make or receive a payment for the publication of those views. Such payment must be in respect of the act of publication rather than the views themselves. As the Select Committee explained, the objective was that of capturing those who make or receive payment to express political views for publication.58 It evidences the legislature’s focus on parallel campaigners who spend money on election advertising. 57 58 Electoral (Finance Reform and Advance Voting) Amendment Bill 2010 (146–2) at 2–3. At 3.

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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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