The Court of Appeal's decision on the Planet Key's legal status means that we are likely to see and hear a lot more political advertising. And it also renders the Government's just announced reforms of party political broadcasts completely out of date.
Yesterday, the Court of Appeal handed down its decision on the Electoral Commission's appeal in the "Planet Key" case, The Electoral Commission v Watson & Jones. You may remember the song and video at the heart of that case.
In a nutshell, the Electoral Commission thought that this song and video were both an electoral advertisement under the Electoral Act (so requiring a "promoters statement" to be included in them) and an election programme under the Broadcasting Act (meaning that TV or radio stations couldn't play them). The High Court disagreed with that conclusion, as I wrote about here last year. But the Electoral Commission thought that this ruling, along with another High Court decision relating to Greenpeace's internet campaign encouraging people to become "climate voters", left the law in an unclear state, so it sought clarification from the Court of Appeal.
It's now got that, with the Court essentially telling the Commission that it needs to lighten up and get a sense of humour. Or, rather, that it ought to approach its task in advising people whether a given message is an "election advertisement" under the Electoral Act (and thus subject to regulation) in a more nuanced and purposive fashion that pays greater attention to the rights of people to speak about their leaders and the policies that they pursue. And so the Court gave the Commission a set of guidelines to help it better make such judgments in the future.
However, while the Court was able to interpret the Electoral Act in a way that put Messers Watson and Jones outside its coverage, it also said it couldn't do so for every person who just wants to have their say on matters political. This lead it to sound this warning:
 This points to a difficulty with the legislation and a need for reform. The Act regulates the publication of election advertisements by anyone, not just participants and their parallel campaigners. That is why the parties have focused on the definition of election advertisement. But that definition does not fully protect political speech by non-participants in the electoral process. People who are not parallel campaigners or representatives of vested interests, and who do not incur any or any significant expenses, may publish views that have the effect of encouraging voters to vote for, or not for, some party or candidate by reference to views adopted or not adopted. The exclusions for editorial content and personal political views published on the internet must be interpreted generously, as we have just explained, but they do not protect all political speech by non-participants. There is nothing this Court can do about it, apart from drawing the problem to Parliament’s attention. To restrict [the Electoral Act's coverage] to parallel campaigners would be to go beyond the permissible bounds of interpretation.
Of course, this probably comes to late for anything to be done about it for the next election. There's currently an Electoral Amendment Bill before the House, but as the Justice and Electoral Committee has allowed only 9 working days - 9 days!!! - for the public to make submissions on it, there's no way that such a major issue can be dealt with through this. So despite the Court of Appeal's warning, we'll have to wait until after 2017 to see what can be done about the problem,
And in any case, the Court's decision on whether the song and video are "election advertisements" isn't really the most important part of the case. That came later, when the Court was considering whether they constituted an "election programme". Remember, the Commission believed that they did, meaning that TV and radio stations couldn't play them at all. This is because the Broadcasting Act, s.70, imposes a blanket ban on carrying election programmes unless these are paid for out of money specifically allocated to political parties by the Commission for the purpose of running such ads.
That ban has made TV and radio in New Zealand pretty much political advert free territory. Sure, in the couple of months leading up to an election the parties run their adverts (paid for by their taxpayer funded allocations). And in theory others can run adverts on political issues, so long as these don't become "election programmes". But the tight definition of that term has been a real disincentive to doing so - it's hard to say anything meaningful about a political issue without the Commission deciding your message is an "election programme" (as Messers Watson and Jones discovered).
All that, however, looks likely to change as the result of this conclusion by the Court:
 We have concluded that the prohibition in s 70 is indeed confined to programmes broadcast for political parties or candidates, being those entitled to benefit from an allocation of broadcasting time under pt 6.
Simply put, the Court is saying that while the Broadcasting Act regulates how political parties and candidates can run electoral ads on TV and radio, it doesn't apply to anyone else. Meaning that any interest group or concerned individual who wants to take to the airwaves to tell the public what to think about political issues or the parties and candidates looking to run the country is now free to do so (provided, of course, they can come up with the money to pay the TV and radio companies to carry their message).
However, such ads (especially if specifically targeted at a party) may well still be "election advertisements" under the Electoral Act. If so, that will still impose some constraints on them:
- The "promoter" will have to put their name and address on the ad;
- In the three months before an election, there will be limits on how much a promoter can spend on such electoral advertising (but outside of those three months, no spending limits apply at all);
- The Electoral Act prohibits promoters from running ads that promote a named party or candidate without that party or candidate's permission - meaning that such ads inevitably are "negative" in nature (i.e. they tell people not to vote for some party or candidate).
So this is a really big change in our electoral law - it opens up forms of communication that have never before been available for those interested in spreading their political messages to the general public (and able to afford to do so). And while TV and radio aren't as important as they once were, they still represent the best way to reach a large audience - especially a large audience of more elderly New Zealanders who are the most likely to vote. Meaning that it seems likely we're going to get a lot more political advertising on our TV and radio station in 2017.
Which then raises one last issue. Because, in addition to an Electoral Amendment Bill, the Government has just announced a new Broadcasting (Election Programmes and Election Advertising) Amendment Bill will be introduced into the House. That Bill will:
remove the requirement for political parties’ opening and closing election broadcasts to be aired on television and radio. It will also remove the requirement for TVNZ and Radio NZ to provide free time for these.
The Bill recognises the growing use of digital and online media. As well as television and radio, parties will now be allowed to use their allocation for advertising online.
To offset the reduction in time that parties are given to address voters, the Government has agreed to increase election advertising funding by $750,000. This brings the budget to $3.605 million.
We'll skip over the buried lede of the National Party giving itself another $300,000-odd to spend on TV ads telling you to vote for it and instead note that this Bill now seems hopelessly outdated in light of the Court of Appeal's decision. For it continues to tell parties that they can only spend as much on TV and radio ads as the Electoral Commission gives to them, whilst everyone else will be allowed to spend as much as they want (subject to the Electoral Act's constraint on overall "election expenses").
Does that make any sense? Why not just turn the current broadcasting allocation into general funding for political parties to use however they want and then let parties spend as much as they want (or, as much as they can) of their own money on TV and radio ads - subject to their overall cap on election expenses? In other words, why not treat all electoral participants in the same way?