- KiwiBlog: "
Definition of third party election advertising"
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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.
