Monday, September 08, 2014

The Climate Voter decision

When the Climate Voter campaign launched, one of my first thoughts - expressed over Twitter, and directly to their network contact - was that it was an "election advertisement" in terms of the Electoral Act, and was going to get into trouble for not carrying the required promoter statement. And according to the High Court's judgement (released this morning) in Greenpeace of NZ Incorporated & Ors v Electoral Commission [PDF], I was right.

The case was actually about two websites: Climate Voter, which aims to get voters to cast their vote on the basis of climate change policy, and, which parodied the Minister of Energy and Resource's website and position on oil spills. The core question at issue was whether the law meant what it defined an "election advertisement" by whether it

may reasonably be regarded as encouraging or persuading voters... to vote, or not to vote, for a type of party described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party is stated)

and the impact of this definition on advocacy organisations. On the way to an answer, the court considered the consistency of the law with the BORA (it is consistent), whether an "advertisement" must be an advertisement in the ordinary sense of the word (no), and whether a corporation is an "individual" for the purposes of the "personal political views" exemption (they're not), before deciding that the definition means what it apparently says. And on that basis, Climate Voter is an "election advertisement" because it goes beyond simply informing people on policy positions, but tells people directly and implicitly through its "live updates" feed what specific positions you should vote for. So, in part, the informal style of Twitter has made it an election advertisement.

But its not all bad news. The judge also rules that whether something is an election advertisement must be assessed in light of the context in which it is created. Ordinary political debate - which the Electoral Act is not supposed to suppress - routinely involves issue groups highlighting the positions of Ministers. This sort of political speech isn't an "election advertisement", and doesn't become one retrospectively when an election is called. So, is not an "election advertisement".

So, Greenpeace will have to put a promoter statement on its website, track its expenses, and not spend more than $308,000 on it. Quelle horreur! As the judge notes, these are hardly onerous conditions, and I really wonder why Greenpeace spent so much money trying to avoid them.