Thursday, April 02, 2015

Political satire is legal again

Back in August, Darren Watson and Jeremy Jones put this amusing political song on the internet and offered it for radio broadcast. The Electoral Commission immediately banned it as an "electoral advertisement" - in the process effectively declaring effective political satire to be illegal. Watson and Jones challenged the Commission's interpretation, and the court has finally ruled - finding that the song and video aren't advertisments at all, but comment, speech and content. Which should have been pretty bloody obvious the moment anyone stopped to think about it.

The full judgement is here. There's a long traversal of the legislative history of the relevant parts of the Electoral Act and Broadcasting Acts, and a discussion of the interests Parliament is trying to protect through the electoral law requirements to attach promoter statements to advertisements and the prohibition on election programmes. And the short version is that they're trying to prevent people from buying elections, not from commenting on politics or producing protest songs. A rights-consistent interpretation of our electoral law has to support that, and fortunately one could be found by highlighting the distinction between advertising and actual content. That works very well for this situation (where, pretty obviously, its not an "advertisement" at all), but there are likely to be further interpretational questions around stealth advertising campaigns. but I guess the Commission, with the guidance of the courts, will deal with them as they come up.

In passing, its also worth noting that the Electoral Commission really did try and ban satire. Yes, they deny it, but that would have been the effect of their argument at paragraph 90 where they argue for a top-down "encourages votes / specified exception" scheme and that

Satirical speech might or might not be an election advertisement, depending upon the “may reasonably be regarded” assessment.

But no reasonable person would conclude that effective satire didn't encourage people not to vote for its targets. While it may not be its purpose, that's the effect of a thorough skewering - to highlight views the public may find repulsive, and lower the public's opinion of the target. And the idea that such speech might be forbidden in a free and democratic society is simply laughable. Which may explain why we don't see very much of it on NZ television (that, and NZ On Air is hardly going to allocate funding to content which skewers the people who set its budget).

But I guess that's what you get when your Electoral Commission is more worried about getting flak from politicians rather than protecting the public's democratic rights.