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The station’s programme director emailed the Commission as a precaution, to confirm it could be broadcast. [12] The Commission responded with the advice that the song was an election programme under the Broadcasting Act; and that being so, its broadcast on radio or television would be unlawful unless part of a news item. It will be seen that the Commission treated the song as a programme in itself, notwithstanding that Free FM planned to play the song as part of another programme. [13] In response to the Commission’s advice, Free FM chose not to broadcast the song. [14] The Commission confirmed its view in an advisory opinion given to Mr Watson on 14 August 2014, adding that the video was also an election programme. Both met the definition because they might reasonably be thought to encourage voters not to vote for the National Party or Mr Key. For similar reasons, it advised that both the song and the video were election advertisements for the purposes of the Electoral Act. It advised that individual political views published on a medium such as the internet were exempt, but that exception would not apply to the song if it was available for paid download or to the video if it was a collaboration between two people rather than the work of one. That being so, Mr Watson must comply with the obligations of an unregistered promoter, meaning that he must publish a promoter statement with the song and video and he must keep records of any election expenses incurred. The Commission warned that the omission of a promoter statement was an illegal practice. [15] Mr Watson protested but the Commission was unmoved. It contacted other broadcasters to advise them that the song and video could not be broadcast on radio or television because it was an election programme. Mr Watson responded by withdrawing the song and video from circulation. In his view a promoter statement would detract from the song’s impact and clash with its style and content. He claims that the Commission effectively prevented him from expressing his own political views through his music.

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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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