Radio Live and the Prime Minister pushed the boat out in the PM’s hour programme, broadcast on September 30 last year. Radio Live asked the Commission for advice two days before the programme was run, although they had been planning it for months. When Key’s office received the Commission’s warning to be careful about the progamme, an internal memo said “the electoral Commission have been pretty clear about putting the responsibility on the broadcaster, which is useful”.
Radio Live and Key’s office knew they were sailing very close to the wind. The Electoral Commission has now sunk Radio Live’s argument, finding that it breached Section 70 of the Broadcasting Act, which forbids broadcasting of election programmes other than those paid for by the Commission. The Electoral Commission goes into the reasons for this restriction at some length:
It is appropriate to consider what we understand to be the policy behind the election broadcasting regime. The legislation imposes strict restriction on the broadcast of election programmes because of the supposed power and influence of broadcasting compared to other media. The objective is first, to provide candidates and parties with a fair opportunity to present themselves to the electorate and secondly, to avoid candidates, parties and third parties, particularly those with deep pockets, obtaining unfair levels of access through the broadcast media. Importantly, media freedom is protected though an exemption for news, comment and current affairs broadcasts relating to an election…
In all the circumstances it is reasonable to conclude listeners would regards the show as appearing to encourage or persuade voters to vote for Mr Key’s party and for him. In the Commission’s view, this conclusion would be consistent with the policy of the statutory scheme to limit parties and candidates exposure through the broadcast media in the lead up to the election to paid political broadcasts or to news, comment and current affairs programmes.
I agree wholeheartedly with this view. As we look around the world at Fox News, the now defunct News of the World, Gina Rinehart’s purchase of of a chunk of Fairfax we see those with very deep pockets taking a great deal of interest in what is conveyed through the broadcast media. Our legislation protects New Zealanders from that, and does not inhibit the media or free speech.
As for breach of the Electoral Act, Key and the National party were thrown a lifebelt by the difference in wording between sections of the Act which provides an exemption for editorial control in one case and does not mention reasonableness in the other. This is a long-standing problem and should have been cleaned up in the review undertaken by Simon Power. The Commission suggest this is a matter Parliament may like to look at and I would hope that it will be done as part of the Select Committee review of the election.
The Broadcasting Standards Authority was also asked to rule whether the programme breached any of the standards that come under its jurisdiction. Rather surprisingly, in order to get to this point the Authority Chairman, a National government appointee, chose to offer his semi-judicial view of what constitutes an election programme. He could not have as he just did not have jurisdiction. However he put his view that to be an election programme there had to be had to be an explicit seeking of a vote. The Electoral Commission, which does have jurisdiction under the Broadcasting Act, has now given the settled view – encouragement to vote does not require an explicit request to vote.
My complaint last year was based on the fact that John Key and the National Party were running a brand campaign for the 2011 election. In her response to an initial request for a matching offer from Fran Mold, Jana Rangooni of Radio Live said that the programme was not an election programme but was designed to encourage listeners to “our brand” – to argue that it was designed to encourage listeners to Radio Live’s brand but not voters to John Key’s brand beggars belief.
Finally, this breach is not a trivial matter. The public relations value if assessed in any other campaign would be considerable. No one else received that free benefit. The penalty for breach of this section of the Act by a broadcaster is a fine of up to $100,000. It is assessed after summary conviction so a charge may be laid with the Police by anyone.