This section helps media to understand the rules in the Electoral Act 1993 that apply to print, online, and outdoor election advertising.
|Election advertisements (other than election programmes on television and radio) can be published at any time except on election day (23 September).|
|Election advertisements must contain a promoter statement, including the promoter’s name and street address.|
|Election advertisements that promote any candidate and/or party must have been authorised in writing by the candidate and/ or party secretary before being published/ broadcast.|
|Any person can seek an advisory opinion from the Electoral Commission on whether or not a particular advertisement is an election advertisement.|
All election advertisements irrespective of when they are published or broadcast must include 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
- an electorate 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, the promoter statement must be clearly displayed in the advertisement.
The form of words recommended by the 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. 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. A Post Office box or website address is insufficient.
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.
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.
Party and candidate election advertisements
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.
Third party election advertisements
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.
There are some restrictions on who can be an unregistered or registered promoter. [See Appendix A for further details]
Written authorisation to promote a party or candidate
Election advertisements that may reasonably be 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.
Candidates, parties and third parties must not exceed the following expenditure limits for election advertising that is published during the regulated period (23 June to 22 September):
- $26,200 for an electorate candidate
- $1,115,000 for a registered political party plus $26,200 per electorate contested by the party
- $12,600 for an unregistered third party promoter
- $315,000 for a registered third party promoter
These amounts are inclusive of GST.
Third parties that intend to spend more than $12,600 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.
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 an electorate 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 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 television broadcasting. It includes online advertising and can be paid or unpaid.
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 advertising will count toward both Party A and the third party’s election expense limits.
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.
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, or type of party or candidate.
This is an objective test to be determined considering the effect of the advertisement as a whole. The effect of the advertisement will depend not only on its content but also its style and apparent purpose, and factual context. To be an election advertisement, the advertisement need not include the name of a party or candidate, and the encouragement or persuasion to vote, or not to vote, can be direct or indirect.
Other relevant factors that need to be considered can relate to who the promoter is and whether or not there is a public interest in knowing the promoter’s identity which will depend on whether or not the promoter is expressing views that are personal in nature and not incurring significant expense or represents a group or vested interest.
The courts have said that the assessment is to be made from the perspective of a reasonable observer, sensitive to the exceptionally high value of political speech in a democracy. (The Electoral Commission v Watson & Anor 2016)
The definition of ‘election advertisement’ does not require an explicit statement (e.g, ‘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.
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:
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 including the name and address of the party secretary.
A person who is not involved in the affairs of a party or candidate prints a flyer and makes arrangements with the publisher of a community newspaper for the flyer to be distributed with it.
The flyer presents loaded questions and answers about a topical issue and suggests answers framed in negative language with a cross, and answers framed in positive language with a tick.
The flyer does not identify any party or candidate by name but the policy issue and the recommended answers reflect policy positions clearly identifiable with a party or type of party through messages and use of party colours.
The promoter and the publisher would be wise to seek an advisory opinion from the Commission.
If the flyer is an election advertisement or an advertisement relating to an election, a promoter statement will be required. If the flyer may reasonably be regarded as encouraging or persuading electors to vote for a party, the party secretary’s prior written authorisation may be required.
Depending on the amount of expenditure the promoter may need to be registered with the Commission.
Issue advocacy about political issues may not be election advertising. Just publishing material with messages that take a position with which a party or candidate happens to be associated is not sufficient. More is needed. For example, if the flyer identifies party positions and establishes a yardstick for evaluating such positions, encouraging voters to vote accordingly then it could be an election advertisement.
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.
Election advertisement exemptions
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 tv programme, or news media internet site. The Electoral Act does not define ‘editorial content’ but the Commission’s view is that it includes any part of the publication except advertising or advertorial.
It can include opinion and editorial pieces written by others and reader contributions that the editor has chosen to publish. 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 covers political views that are personal in nature. It does not extend to political views expressed on behalf of a group, organisation or views of a political party.
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 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.
MP contact details
There is also an exemption for the publication of contact information by MPs.
Further information for MPs is available in the Electoral Commission’s publication MP Handbook - General Election 2017.
Requesting an advisory opinion from the Electoral Commission
We are very happy to provide guidance to candidates, parties, third parties and media.
You can ask us for advice on whether, in the Commission’s opinion, an advertisement constitutes an ‘election advertisement’ under the law. The opinion of the Commission is not legally binding but reflects the Commission’s interpretation of the law.
A court of law may reach a different view and you may still wish to seek your own legal advice.
To request an opinion, please provide a copy of the advertisement and any relevant background information about the context of the publication, such as the details of when and how it is to be published and on what scale. Requests can be made by email to: email@example.com.
It may be helpful to obtain the view of the Commission where you are uncertain about how the rules apply to a particular advertisement. We will respond as soon as we can. We have a maximum target turnaround of 5 working days.
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 (13 October 2017).
Advisory opinions will then be available on request, subject to the Official Information Act 1982. This does not prohibit the requestor from releasing the advice at any time.
References to websites
If advertising contains a website reference, you need to consider 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 Electoral Act.
For example, if the statement: ‘Go to www. standupforanimals 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 account.
Listing a website is fine, but if words or graphics are used that encourage readers to visit a website, the content of both the publicity and the website will need to be considered.
An advertisement ‘relating to an election’
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 flyer or broadcast on radio or television. [Section 221A of the Electoral Act]
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 of the Electoral Act because it is ‘election-related’.
Example: Radio ad
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.
Local authorities are responsible for regulating when, where, and how election signs can be displayed.
As the rules may vary between each local authority, the Electoral Act allows election signs up to 3 square metres in size to be put up from Saturday 22 July for the general election. This provision overrides any more restrictive local authority rules about the size of signs and when they can go up, but it does not mean parties, candidates and third parties can put their signs up from Saturday 22 July wherever they want to. Local authority rules about the location and density of signs and any application procedures to put up electoral signs will still apply. Some local authorities may allow larger signs to be put up and for signs to be put up before 22 July.
Any queries or complaints about signs being up should be directed to the relevant local authority.
A person must not pay an elector to display an electoral sign unless it is in the course of the elector’s business.
It is an offence under the Electoral Act to display election signs on election day.
Campaigning near advance voting places
The restrictions that prevent electioneering on election day do not apply during the advance voting period. However, there are restrictions on campaigning inside or within 10 metres of an entrance to an advance voting place (“the buffer zone”).
The full list of prohibited activities is set out in section 197A of the Electoral Act which effectively prohibits anything that can be said to interfere with or influence voters, including processions, speeches or public statements in a buffer zone.
Signs, clothing and other campaign material featuring party (other than a party lapel badge) or candidate names, emblems, slogans or logos cannot be displayed or handed out inside the advance voting place or anywhere within the buffer zone. However, scrutineers and party supporters may still wear a party lapel badge.
The rules about filming and photography in an advance voting place are the same as those on election day, see Part 3.