You can't slate Key on the radio

The Electoral Commission is right to say the Planet Key song can't be played on the radio. That's because we have a stupid and outdated law in place.

By now I'm sure you've all been online and had a look at the very well put together song and accompanying video, "Planet Key". If you haven't, you really should ... it's quite clever (even David Farrar says so!). And you've also probably come across the news that the Electoral Commission has told radio stations that they cannot play this song on the airwaves as it constitutes an "election programme". 

What you may then have been wondering is, can this really be correct? Is it possible in the New Zealand of 2014 that you're not allowed to play a song on the radio just because it makes fun of the Prime Minister (or other elected politician)? Surely that can't be the case!

Well, first of all, don't call me Shirley. And second, yes it is. I think the Commission is almost certainly right in its view of the law (at least, unless and until a court expressly tells them that they are wrong). I'll explain what I mean, then have some things to say about the state of this law generally.

The law we're dealing with here is the Broadcasting Act 1989 (note that date - enacted before our New Zealand Bill of Rights Act 1990, and unchanged (in regards this issue) since then). Under s.69 of that legislation, there is a definition as follows:

election programme means ... a programme that—

(a) encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election; or

(b) encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at an election; or

(c) advocates support for a candidate or for a political party; or

(d) opposes a candidate or a political party; or

(e) notifies meetings held or to be held in connection with an election.

I don't think there's any real debate that the song, with or without accompanying video, "appears to encourage or persuade voters not to vote for ... the election of any person at an election", or "opposes a candidate ...". Take this sample lyric from the song: "If you want compassion, don't vote for me". So, as long as the song is a "programme", then it's an "election programme" under the Broadcasting Act.

What, then, is a "programme" under the Broadcasting Act? If you go to the general definition in section 2, you find this definition:

programme ... means sounds or visual images, or a combination of sounds and visual images, intended

(i) to inform, enlighten, or entertain; or

(ii) to promote the interests of any person; or

(iii) to promote any product or service;

Which seems to capture the song (with or without the accompanying video) perfectly. Meaning that it is, in terms of the Broadcasting Act, an "election programme" (even though that seems a very odd way to describe it if we were using ordinary English instead of than legalese gobbledigook).

That being so, we then have to ask what are the rules around broadcasting election advertisements? That takes us to section 70(1):

Except as provided in subsections (2) and (2A), no broadcaster shall permit the broadcasting, within or outside an election period, of an election programme.

Just accept for the moment that the provisos in ss (2) and (2A) don't apply to the song (they don't). And also accept that the general exception in ss (3) that: "Nothing in subsection (1) restricts the broadcasting, in relation to an election, of news or of comments or of current affairs programmes" doesn't on the face ot it apply to the song (although more on this in a moment). 

What that means is that no radio station can ever play this song at any point in time. So it's not that its composer/performer has put it out too close to an election, and has to wait until it is over before the radio can carry it. If it is an election programme (which it is), then (assuming John Key is returned to Parliament in September) it still cannot be played even after the 2014 election is over. At least, not until he throws in the towel and decides to retire to Hawaii. 

Now, I think this is silly, for reasons that I'll get to. But it seems to me to be what the Broadcasting Act requires on a plain reading of the legislation. And I don't think the Electoral Commission is to be criticised for telling people that they should comply with what, on the face of it, the law says (as opposed to, say, what they might think the law ought to say).  

Now, it may be that you might be able to find some judge who thinks this outcome (banning a satire song from the airwaves) is so bad an outcome that she or he is prepared to twist and bend the Broadcasting Act provisions to stop it from happening. Maybe, for instance, they could cram the song's message into the s.70(3) exception for "news or ... comments or ... current affairs programmes". And they could rely on the New Zealand Bill of Rights Act, s.6 interpretative command in order to try to do so.

But I think that such an act of judicial surgery is less-likely than more. My bet would be that a judge confronted with this case would feel compelled to say that Parliament's intent here is clear, even if suspect. So even if they don't like the outcome, a judge is going to say that they have to apply the law as it is written and find this to be an unplayable election programme. 

Well then, what about the way that the law is written? It clearly is an Ass. It is the product of a time when TV and radio were the predominant modes of mass communication, run as quasi-nationalised industries under tight government control. In such an environment, it may have made some sense to tightly control the ability of broadcasters to carry partisan political messages, given the temptation otherwise for those politicians who controlled the media to use it for their own ends. 

But today? When the broadcast media has fractured into multiple competing stations operating across a number of different platforms? Where consumers not only increasingly access content through the internet (to which the Broadcasting Act does not apply, which is why you can watch the "Planet Key" video from TV3's website even though they can't play it on air), but also are able to timeshift the broadcast programmes and watch them as and when they choose? Is this form of content delivery still so special or different or powerful that we have to protect it from being used for partisan political purposes?

Furthermore, today we have limits on what candidates, parties and third parties can spend on election advertising - limits that didn't exist back in 1989. So why do we still have a separate rule that says partisan political messages are banned from the airwaves? Note also that this ban isn't total in its effect. Political parties are given money by the State every election to buy their own time to broadcast their election messages to the public - money that is then distributed in a quite unequal manner. So the winners (i.e. the big parties) under this system do quite well out of having it in place, while the losers (i.e. the little ones) remain locked out of using this media for carrying their messages.

You might like to consider this last point, and then ask yourself why we still have this law on our books ... as well as why there seems no groundswell of support amongst politicians to change it.

A couple of quick last points. The Electoral Commission is also apparently considering whether the Planet Key song and video constitutes an "election advertisement" under the Electoral Act 1993. This is a different legal test - to be an "election advertisement", a message must first be an "advertisement" (as opposed to a "programme" under the Broadcasting Act). And this term - "advertisement" - is not defined anywhere in the Electoral Act. Meaning that it carries the meaning that we would usually associate with it in ordinary english language.

Which raises the question ... can a song composed and performed by a professional musician to express her or his views of a politician and illustrated by an accompanying video before being offered for sale to the general public be considered an "advertisement" in terms of the Act? And if so, what of the song itself, without the accompanying video? 

Because, if the song and video together are "election advertisements", then the Electoral Act requires a "promoter's statement" - the name and address of the person responsible for the song and video - to be included on the video. Equally, if the song alone is an "election advertisement", it also requires a promoter's statement that is "no less audible than the other content of the advertisement". Meaning that the song, before it can be made available to be played in any public setting, would have to be re-recorded to include Darren Watson's name and address in it.  

So I really hope that the Electoral Commission decides that this song isn't an election advertisement.