Definition of third party election advertising

Steven Price correctly pointed out this morning that you currently need to disclose name and address for a third party electoral advertisement. But the big change is how what counts as publishing an advertisement has changed. First let us look at the current law in the Electoral Act 1993 – Clause 221A(1).

Subject to subsection (2) of this section, no person shall publish or cause or permit to be published in any newspaper, periodical, poster, or handbill, or broadcast or cause or permit to be broadcast over any radio or television station, any advertisement relating to an election unless the advertisement contains a statement setting out the true name of the person for whom or at whose direction it is published and the address of that person’s place of residence or business.

So an electoral advertisement is defined pretty narrowly – an advertisement in a newspaper, periodical, poster or handbill or an advertisement on radio or TV. And it only applies for 90 days and it has to be “relating to an election”.

Now we turn to the Electoral Finance Bill 2007. First we go to Clause 4(1) for the definition of publish, as it applies to us:

publish, in relation to an advertisement, means to—

(a) print or insert in a periodical published or distributed in New Zealand; or
(b) issue, hand out, or display; or
(c) send to any member of the public by any means; or
(d) deliver to any member of the public, or leave at a place owned or occupied by a member of the public; or
(e) broadcast; or
(f) include in a film or video displayed to the public; or
(g) disseminate by means of the Internet or any other electronic medium; or
(h) store electronically in a way that is accessible to the public; or
(i) bring to the notice of the public in any other manner

Now you can see the massive difference. This is why placards, and megaphones, and e-mails, and messages on Usenet, and even speaking at a public meeting is now counted as publishing an advertisement. The law is explicit. The 1993 Act very tightly defined what was an advertisement. This Bill defines basically everything as an advertisement if it brings it to the notice of the public. And this was pointed out to the Select Committee, and they made it even worse by including (i).

Also worth remembering that this now applies all of election year.

Now we turn to the companion definition of what is an election advertisement, because hey surely speaking into a megaphone or posting to Usenet is not an advertisement as we understand it. But sadly statute law trumps common usage, and the law means what the law defines something as. If a law is passed defining me as a tall person, then I would be legally a tall person able to access the benefits of the Tall Persons Act 2009. Even if common sense says I am a shortie.

So we turn to Clause 5(1):

In this Act, election advertisement—
(a) means any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:
(i) encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates:
(ii) encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated);

Now look at para (a) – any form of words or graphics. yes any form. Oral, written, on a placard, in a Usenet post.

And the definition in (ii) also includes statements such as “Down with parties who are against Kyoto” or “Only support parties which support legal party pills” or “Don’t vote for the Ginga (only illegal in Otaki). Okay last one is a bit far fetched. But the key is you do not have to explicitly say “Vote for” or “Vote against” to be covered and advocating on an issue such as “People should only vote for parties that support lower taxes” is covered – even if just on a post to Usenet.

So why have they gone with a law which includes speaking at public meetings, chanting in a protest, a placard, a post to Usenet as an election advert? The problem is their fundamental approach is flawed.

The old Act starts with a narrow definition of election advertising, and has just a couple of exemptions for media and the electoral agencies. That is how it should be. Sure you may want to widen the definition a bit to include some new media, but that’s it.

This Bill has been designed the opposite way. It defines absolutely everything in election year as election advertising, if a view is expressed publicly for or against a party. The starting point is everything in election year is to be regulated, and then they have come up with a list of exceptions, which keeps growing as they realise that the original bill banned media websites for example, and this version regulates megaphones on protest marches.

Now you can keep expanding the exceptions, but as I point out above, the fundamental approach is flawed. You shouldn’t start with regulating everything and then do exceptions when it comes to our rights to speak up on political issues. You should only regulate stuff over a certain threshold.

Hence this is why the EFB will not survive for long, regardless of who is in power. It starts from the wrong premise – that all political advocacy for or against parties is to be regulated. It needs to start from a premise that we want people to voice their views as much as possible, and we only then regulate those which involve significant expenditure