20 November 2007

Electoral Finance Bill, new media, and megaphones

- KiwiBlog: "Definition of third party election advertising"
KiwiBlog: "Disclosure Requirements"

David Farrar has been making a big deal about the potential of the new definition of "advertisement" in the Electoral Finance Bill and the possibility that it requires people holding placards, megaphones, or writing in chalk on the street to disclose their name and address. I'm presently in Australia and haven't had a chance to analyse the minutiae of this issue but I think his concerns are a bit of a storm in a teacup and/or can be addressed by a simply minor amendment:

1. I'm not convinced this is a sinister move by the government. I read it as simply an attempt to apply existing rules and principles to "new media". The recent Australian election has illustrated how the parties are now recognising the value of spreading their message beyond existing media, particularly with the view to capturing the youth vote. Blogs, YouTube, Facebook, viral emails and texts. Now, it seems entirely proper for the government to close this loophole to ensure an even-playing field. The existing 1993 definition just doesn't do. A broader definition of advertisement is needed. Hence the new definition.

2. Farrar is correct that, on its face, the new definition would seem to capture megaphones, chalk on the pavement, and placards. But I'm not convinced that a court would necessarily hold that such speech would be covered. Legislation needs to be interpreted "in the light of its purpose", including any other contextual indications in the legislation (s5, Interpretation Act 1999) . Any sensible purposive interpretation would hold that holding a placard or shouting through a megaphone would not be an advertisement for this purpose. The purpose of the regime is transparency. Personal advocacy where one's identity is readily apparent doesn't need the same disclosure regime as billboards, newspaper adverts, and TV ads. I would expect that the courts would interpret the provisions accordingly in the unlikely event that those policing the regime actually cared about the conduct enough to prosecute. (On chalk on the pavement, I'm not convinced that this is materially different to other adverts to require an specific exception; it's written speech similar to billboards where the identity of the advocate is not known; it's probably then a good thing that disclosure is require for this speech.)

3. That said, there is some merit in the reasonably comprehensive definition providing some certainty about this. It's possible to include further exceptions to the definition to make this clear.
5 Meaing of election advertisement ... (2) The following publications are not election advertisements: ... (h) oral communication in person or similar symbolic communication, where the identity of the person making the statement is readily apparent; (i) written communication that is only published or communicated with other people while the person responsible for the words or graphics is physically present; and (j) electronic messages (as defined in the Unsolicited Electronic Messages Act 2007) where the sender and recipient are personally known to each other.
I'm not sure how this proviso works with the balance of the Bill but it seems to exclude those extreme scenarios that some folk seem to be beating up on.

UPDATE (20/11/2007): Suggested wording now tweaked to fit within s5(2).

UPDATE (21/11/2007): I should, of course, have also mentioned in my analysis of the definition that a narrower, commonsense interpretation of the definition is also mandated by ss6 and 14 of the Bill of Rights, as well as traditional purposive interpretation. As the regulation prima facie breaches expressive rights, the courts are directed to apply the least restrictive tenable meaning that an ambiguous provision can be given, ala the Hopkinson flag-burning case.

11 comments:

Graeme Edgeler said...

[the] concerns ... can be addressed by a simply minor amendment

Agreed. Let's hope one passes.

Any sensible purposive interpretation would hold that holding a placard or shouting through a megaphone would not be an advertisement for this purpose.

Absolutely, but when the commentary in the select committee report states that the new paragraph is designed to catch megaphones, the purposive interpretation probably isn't going to come down on the side of sensible

David Farrar said...

Dean - can you also do an amemndment which would allow anonymous contributions on the Internet - especially Usenet newsgroups.

Dean Knight said...

Yes, megaphone is mentioned but only in the context of "broadcast" and therefore the meaning of to "publish". That is necessarily broad. However, I'm not sure it prevents a narrower purposive interpretation of "election advertisement", where the real problem arises?

Dean Knight said...

DPF:

I'm not convinced that they are should similarly be exempt - if you take the view, as I do, that transparency is the overriding concern.

The difficulty with anonymous contributions to the Internet is that anonymity might be claimed in circumstances where the publication is, in substance, naked electioneering.

And it's probably covered by s5(2)(g) anyways.

But, if you wanted to make it clear, I suggest you amend s5(2)(g) (new words in italics):

(g) the publication by an individual, on a non-commercial
basis, on the Internet of his or her personal political
views (being the kind of publication commonly known
as a blog, comments on blogs, or contributions to Internet newsgroups).

Dave said...

Although legislation needs to be interpreted "in the light of its purpose", it is clear that the purpose of the EFB amendment is that the megaphone example and new media is caught up by the bill, nonsensical though it is.

An SOP will fix it, despite the many opportunities to fix it up to now. But if it is not fixed, Farrars concerns are not a storm in a teacup as it means that a law wil be passed that is not intended to be enforced and common sense vbetos the law.

Thats not ideal.

pete said...

I'd like the ungrammatical monstrosity "being the kind of publication commonly known as a blog" removed altogether (it should be "blogging", not "a blog"; they've confused the two meanings of "publication").

Perhaps:

(g) the publication by an individual, on non-commercial basis, on the Internet of his or her personal political views, including
(i) a post or comment on a weblog or newsgroup;
(ii) an image, audio, video, or other media file.

MikeE said...

"The recent Australian election has illustrated how the parties are now recognising the value of spreading their message beyond existing media, particularly with the view to capturing the youth vote. Blogs, YouTube, Facebook, viral emails and texts. Now, it seems entirely proper for the government to close this loophole to ensure an even-playing field."

Surely its a level playing field now, all parties and groups have the opportunity to take advantage of such new (and usually free) media if they do wish - what need is there for legislation to restrict this. After all the majority of this is self selecting media, noone is forced to view said "broadcasts".

When creating regulation one must first idenfity what the problem is.

Can anyone actually tell me what the problem is with said new media? OR why it needs to be regulated?

pete said...

David Farrar is making the claim that you "agree with [his] interpretation" over at his blog.

Dean Knight said...

mikee:

Quite simply, if you want a comprehensive transparency regime for third parties, you can't allow loopholes based on modes of communication. Otherwise, you just get parties or third parties simply diverting their tv and radio advertising to YouTube, blogs, emails, and texts...

MikeE said...

And what exactly is wrong with them diverting their campaigns to said media.

Emails are already covered by anti spam legislation, as are text messaging.

Blogs, youtube etc, why do these need to be regulated, what public good is achieved in doing so?

Noone has been able to explain this yet.

Dean Knight said...

MikeE:

Um, er, it means your other regulation is meaningless.

You may diagree with the regulation of third party speech full stop (I have some sympathy with that view), but if you've moved to regulate it, there's no credible basis to exclude new media per se.

BTW: Electioneering emails aren't banned under the Spam Act, see definition in s6.

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