The key messages are:
1.1 All election advertising must contain a promoter statement
All election advertisements irrespective of when they are published or broadcast must state the name and address of the person that has initiated or instigated them (‘the promoter’) [see section 204F of the Electoral Act].
The Electoral Act provides that only the following can promote an election advertisement:
- a party secretary,
- a candidate,
- a registered promoter, or
- an unregistered promoter.
Registered and unregistered promoters are also referred to as third party promoters throughout this guidance.
To meet the requirements of the Electoral Act, promoter statements must include the name and address of the promoter and make it clear who has initiated or instigated the advertisement. The form of words recommended by the Electoral Commission is:
“Promoted or Authorised by [promoter’s name], [promoter’s relevant full street address]”.
If the promoter is an unregistered third party promoter, and is an incorporated or unincorporated body, the promoter statement must also include the name of a member of the body who is the duly authorised representative of the promoter.
“Promoted or Authorised by [duly authorised representative’s full name], [promoter’s name], [promoter’s relevant full street address]”.
For an incorporated or unincorporated body the address can be the full street address of the body’s principal place of business or head office.
For registered third party promoters this should be the same address as shown on the Register of Registered Promoters. A Post Office box or website address is insufficient.
For an individual, the address can be the full street address of either the place where the promoter usually lives or any other place where the promoter can usually be contacted between the hours of 9am and 5pm on any working day.
The Electoral Act does not define what is meant by ‘any other place where he or she can usually be contacted between the hours of 9am and 5pm on any working day’. The Electoral Commission’s view is that this can include for example:
- the individual’s campaign office address, or
- the individual’s work address,
provided that this is where he or she can usually be contacted between the hours of 9am and 5pm on any working day. The individual does not always have to be physically at this address during these hours but it must be an address from where he or she can be contacted within a reasonable period of time. An individual may need to consult their employer before including a work address on any election advertising.
The requirement for a promoter statement applies to all forms of election advertising in any medium. If the election advertisement is published in a visual form, the promoter statement must be clearly displayed in the advertisement. If the election advertisement is published only in an audible form, the promoter statement must be no less audible than the other content of the advertisement.
Publishers and broadcasters need to be aware that because it is an offence to publish or cause or permit to be published an election advertisement that does not comply with the promoter statement requirements, (independent of any offence committed by a promoter), the publisher/broadcaster is subject to a maximum fine of $10,000 for publishing an election advertisement without a promoter statement.
Whether a promoter statement has been clearly displayed will need to be determined on a case by case basis taking into account the type of advertisement that is published. In the Commission’s view, this does not require that a person be able to read the promoter statement from where an election advertisement is intended to be viewed , for example on a billboard while driving. However, if a person inspects an election advertisement he or she should be able to read the promoter statement.
Given that most websites allow the user to change the font size, as long as the promoter statement is included and is readable, the size is unlikely to mean that the promoter statement is not clearly visible.
Where the website or webpage is an election advertisement, a promoter statement does not need to be included in each picture, article or entry on the site, provided the promoter statement is contained on the home page or the page that contains the election advertising.
1.2 Election advertisements promoted by political parties and candidates
Party advertisements promoted by a party need to include the party secretary’s name and address. The party may promote one or more of its electorate candidates with the written authorisation of each candidate. If a party promotes an advertisement that is both a party and a candidate advertisement, only one promoter statement is required. In this case, the party is the promoter and the advertisement will only need to include the name and address of the party secretary.
Electorate candidates can also promote their own election advertisements, or a joint candidate and party advertisement (with the written authorisation of the party secretary). If an electorate candidate promotes an advertisement that is both a candidate and party advertisement, only one promoter statement is required. In this case, the candidate is the promoter and the advertisement will only need to include the name and address of the candidate.
1.3 Election advertisements promoted by third parties (registered and unregistered promoters)
Election advertisements promoted by a registered or unregistered (‘third party’) promoter need to include a promoter statement that features the promoter’s name and address.
A registered promoter can spend up to $308,000 (including GST) for the 2014 general election. There are some restrictions on who can be an unregistered or registered promoter (see Appendix B for further details).
1.4 Expenditure limits
Candidates, parties and third parties must not exceed the following expenditure limits for election advertising that is published during the regulated period (20 June to 19 September 2014):
- $25,700 for a constituency candidate
- $1,091,000 for a registered political party plus $25,700 per electorate contested by the party
- $12,300 for an unregistered third party promoter
- $308,000 for a registered third party promoter
These amounts are inclusive of GST.
Third parties that intend to spend more than $12,300 on election advertising published during the regulated period must be registered with the Electoral Commission.
There are no limits on how much a candidate, party or third party can spend on election advertising published prior to the regulated period.
1.5 Advertisements promoting a candidate or party must be authorised in writing
Party and candidate election advertisements that may be reasonably regarded as encouraging or persuading voters to vote for an electorate candidate or a party must be authorised in writing by the candidate (in the case of a candidate advertisement) or the party secretary (in the case of a party advertisement). If more than one candidate is featured in a candidate advertisement, written authorisation must be obtained from each candidate. A separate authorisation is not required where an electorate candidate is promoting his or her own candidacy or a party secretary is promoting his or her own party.
Publishers and broadcasters are advised to request and retain a copy of any written authorisation(s) required for a candidate or party advertisement.
Publishers and broadcasters need to be aware that because it is an offence to ‘publish or cause or permit to be published’ an election advertisement that promotes a party and/or candidate without prior written authorisation, (independent of any offence committed by a promoter), the publisher/broadcaster is subject to a maximum fine of $10,000 for publishing or broadcasting this type of election advertisement where written authorisation has not been given.
1.6 What is an election advertisement?
An election advertisement is an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to:
- vote or not to vote for a constituency candidate (whether or not the name of the candidate is stated),
- vote or not to vote for a party (whether or not the name of the party is stated),
- vote or not to vote for a type of candidate or party described by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate or party is stated). [See section 3A of the Electoral Act]
The Electoral Act does not define ‘advertisement’ but because the definition of ‘election advertisement’ covers an advertisement ‘in any medium’ the Electoral Commission considers that the term ‘advertisement’ should be interpreted broadly. For example, it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets and radio and TV broadcasting and includes online advertising. The Electoral Commission’s view is that if material is open to an interpretation that it is an ‘election advertisement’, a promoter statement should be included.
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.
Example: Newspaper ‘advertorial’ announcing the launch of a new political party
The party secretary for a newly registered political party pays for the publication of an ‘advertorial’ that highlights the names and qualifications of its office-holders. The text includes several references to the new party, and language that promotes the party in a positive way including:
- “We have the people to protect families and promote local businesses”;
- “The [Name] Party will help all parents who want the best for their children”.
In addition, there is a photo of the party leader handing an over-sized cheque to a local community group as a donation to its child-care initiative. A billboard with the party’s logo features prominently in the photo.
This example is likely to be considered a party election advertisement. It should include a promoter statement.
Example: Flyer inserted in, and delivered with, local morning newspaper
A group (which is not a registered political party) prints a flyer, and makes arrangements with the publisher of a metropolitan daily newspaper for the flyer to be included as an insertion so it is distributed with the paper.
The flyer presents questions and answers about a number of topical issues, along the lines:
“Q: Do you want [A]?” or “A: Do you want [B]?”
The questions are framed in negative language, and include a checkbox with a cross. The answers are framed in positive language, and include a checkbox with a tick.
The flyer does not identify any party or candidate by name, but the questions and answers reflect policy positions clearly identifiable with one or more parties or types of parties. In addition, the questions and answers are printed in colours identified with particular parties.
This example is likely to be considered an election advertisement. It should include a promoter statement.
All requirements in respect of election advertisements apply to:
- election advertisements published in New Zealand even if the promoter is outside of New Zealand, and
- election advertisements published outside of New Zealand where the promoter is in New Zealand.
[See section 3F of the Electoral Act]
Publish means to bring to the notice of a person in any manner excluding addressing one or more persons face to face [see section 3D of the Electoral Act]. It includes but is not limited to print media, broadcast media, and the Internet.
1.7 What is not an election advertisement?
The legislation makes it clear that the following are not election advertisements:
- editorial content,
- personal political views online,
- a member of Parliament’s contact details.
There is an exemption for the editorial content of a periodical, a radio, or television programme, or news media Internet site. The Electoral Act does not define ‘editorial content’ but the Electoral Commission’s view is that it includes any part of the publication except advertising or advertorial. A periodical is a newspaper, magazine, or journal established for purposes unrelated to the election, that has been published at regular intervals and that is available to the public.
Personal political views online
There is an exemption for the publication of personal political views by an individual on the Internet or other electronic medium, provided the individual does not make or receive payment for publishing those views. Individuals expressing personal political views on social media such as Facebook and Twitter are covered by this exemption and will not need to include a promoter statement. This exemption does not extend to political views expressed on behalf of a party or group because the exemption is restricted to the publication of personal views by an individual. Where an election advertisement posted on a Facebook, Twitter, or other social media is ‘liked’, ‘shared’, ‘retweeted’ or ‘reblogged’ by another person, it is the Electoral Commission’s view that the individual content appearing elsewhere online will not require a promoter statement if it appears on those other pages as the expression of personal political views by an individual who does not make or receive payment in respect of the publication of those views.
Member of Parliament’s contact details
There is also an exemption for the publication by members of Parliament of contact information. For the exemption to apply, contact information published within the regulated period
(20 June to 19 September 2014) must:
- be published by the member in the course of performing his or her duties as a member of Parliament,
- have been funded by the Parliamentary Service,
- have been routinely published in the same medium, no more often, and to no greater extent than, and in the same form and style as it was published before the regulated period, and
- not be combined or associated with an election advertisement.
The contact information must include all of the following:
- the member’s name,
- the member’s contact details, which can be a telephone number, physical or postal address, and/or e-mail address, and
- the name of the electoral district that they represent or the fact that they are a list member.
The contact information may also include one or more of the following:
- a photo of the member,
- a party name,
- a party logo,
- the member’s constituency clinic times,
- the website address for the member or the member’s party.
To fit within the exemption the proposed publication cannot include anything other than ‘contact information’ as outlined above. This exemption is only available to current MPs.
Advertising by an MP, that does not satisfy the contact information exemption must be considered under the general test of whether or not it is an election advertisement.
1.8 References to websites
If advertising encourages people to visit a website, consideration needs to be given to whether the website contains material that could be election advertising. Depending on how the website is being used in the advertisement, the content of the website may be considered in determining whether the advertisement is an election advertisement for the purposes of the Act. For example, if the statement: ‘Go to www.voteforme.co.nz to find out more!’ is included in a print advertisement, both the content of the print advertisement and the website content would be taken into consideration.
1.9 Requesting an advisory opinion from the Electoral Commission
You can ask the Electoral Commission for advice on whether, in its opinion, an advertisement constitutes an ‘election advertisement’ under the law. The advisory opinion will be provided as soon as is reasonably practicable. The opinion of the Electoral Commission is not legally binding but reflects the Commission’s interpretation of the law. A court of law may reach a different view. The Commission’s view is that relying in good faith on an advisory opinion is likely to be relevant to determining whether a person had acted wilfully or taken all reasonable steps to ensure an offence was not committed but that, of course, would be a matter for the Courts to determine. You may wish to seek your own legal advice.
To request an opinion you will need to provide the Commission with a copy of the advertisement and any relevant background information such as the details of when and how it is to be published.
The Commission will treat the proposed advertisement, any supporting material, and the advice given to the requestor as confidential until the day after the day for the return of the writ for the election. Advisory opinions will then be made available on request, subject to the Official Information Act 1982. This does not prohibit the requestor from releasing the advice at any time.
1.10 An advertisement ‘relating to an election’ [Section 221A of the Electoral Act]
Even if an advertisement does not come within the definition of an ‘election advertisement’, it must still contain a promoter statement if it is ‘advertising relating to an election’ that is published in any newspaper, periodical, poster or handbill or broadcast on radio or television.
For example, a poster promoted by a third party that encourages the public to vote or not to vote at the election or encourages voters to think about a particular issue when they vote may not fulfil the definition of an election advertisement because there is no direct or indirect reference to a candidate or party or type of candidate or party. However, the advertisement will still need to have a promoter statement on it to comply with section 221A because it is ‘election-related’.
If a third party wants to spend $20,000 publishing these election advertisements during the regulated period for the election that encourage voters to vote for Party A, prior to publication:
- the third party must register as a promoter with the Electoral Commission, and
- must obtain the written authorisation of the party secretary of Party A.
If Party A agrees, and the item is published, it must include a promoter statement including the name and address of the third party.
The $20,000 cost of the election advertis ing will count toward both Party A and the third party’s election expense limits.
If a third party wants to spend $35,000 publishing these election advertisements during the regulated period that encourage voters not to vote for Party B, prior to publication, the third party must register as a promoter with the Electoral Commission. The prior written authorisation is not required from any party to publish this ad.
The advertisement must include a promoter statement including the name and address of the third party.
The $35,000 cost of the election advertising will count towards just the third party’s election expense limits.
Example: Radio ad
If a third party wants to spend $10,000 broadcasting radio advertisements to encourage people to vote, this is not an election advertisement or election programme.
There would be no requirement to register as a promoter.
The $10,000 would not be an election expense.
It is, however, election related and section 221A of the Act requires that a promoter statement still be included so that voters know who has promoted it.
1.11 Radio and television
There are additional rules that apply to radio and television as distinct from other forms of advertising [Part 6 of the Broadcasting Act].
See Part 2 for more detail, including specific rules for broadcasters.