The Broadcasting Standards Authority has decided that Key’s hour-long promotional programme on RadioLive was not an election programme. They interpret “encourage or persuade” in the Broadcasting Act as “overt or explicit encouragement or persuasion to vote in a particular way”; quite differently from how the same words have become interpreted in the Electoral Act. So much for settled Electoral Law. It will now be very interesting to see what the Electoral Commission decides in relation to election advertising complaints.
The BSA says re “encourage or persuade” defined in Section 69 of the Broadcasting Act:
We are satisfied that the intention of section 69 is to capture those programmes which overtly and directly encourage, persuade or advocate voters to vote for a particular party or a candidate, or which overtly and directly set voters against a particular political party or candidate. We consider that programmes which may in an incidental, resultant, secondary or consequential way amount to encouragement, persuasion, advocacy or opposition for or to a particular political outcome are not captured by section 69.
The Electoral Commission Media Handbook says in relation to “encourage or persuade” in the Electoral Act:
The test is whether the advertisement can “reasonably” be regarded as encouraging or persuading voters to vote, or not to vote, for a party or
candidate. This is an objective test. It is based on content and context regardless of whether the advertisement includes the name of a party or candidate, or whether the encouragement or persuasion to vote, or not to vote, is direct or indirect. The definition of “election advertisement” does not require an explicit statement (eg, “Vote for X”, or “Don’t vote for Y”). The complete advertisement needs to be considered, in context. It is not
enough to consider the words or visual images used in isolation.
The BSA also says:
The words “encourage”, “persuade”, “advocate” or “oppose” are verbs which are associated with activity. They can be used to connote something which is passive but the usual flavour associated with the words is one involving activity. In the ordinary use of language in this particular context, we consider that the words have been used as active verbs.
The programme’s producer Jana Rangooni said that the purpose of the programme was to “encourage listeners to support our brand.” Sounds pretty active to me.
The BSA again:
Here, the Prime Minister was engaged in the expression of information of a kind that was not directly political and he was also involved in a type of entertainment and personal interest programme.
The BSA website advises in its section on general guidance as to whether something is an election programme:
What if a news or current affairs shows covers election issues – is that an election programme? No, news or current affairs programmes relating to elections (or any programmes broadcast to inform, enlighten, or entertain an audience) are not ‘election programmes’ for the purposes of broadcasting standards and not subject to the Election Programmes Code (see Broadcasting Act 1989, s70(3) and Electoral Finance Act s5(2)(c)).
Makes you wonder how up-to-date their thinking is: the Electoral Finance Act has been repealed and the exemption for entertainment is no longer contained in the replacement Electoral Act.
Finally, the BSA says:
In reaching the conclusion that this programme did not actively encourage, persuade, advocate or oppose a political outcome we have also taken into account that it was expressly stated in the programme that election and political issues would not be spoken about or responded to (although, as we will observe later, this promise at the start of the programme was not fully kept).
The current members of the Broadcasting Standards Authority have all been appointed by the present National government. One, Leigh Pearson, declared a conflict of interest and took no part in the decision. Their decision can be appealed to the High Court within a month.
I still think it quacks like a duck and Phil Goff got it right: “It was a one-hour free self-promotion for the Prime Minister”.