Part 2: Applying the rules to MP advertising

This section provides additional guidance on how the election advertising rules apply to different materials frequently produced by MPs. The Electoral Commission is happy to provide an advisory opinion or further advice on material published by MPs in different formats.

Signage and stationery

The contact information exemption has been designed to provide certainty for MPs so that your stationery, vehicle signage, electorate office signage, constituency newspaper advertisements, business cards, etc. are not election advertisements if they comply with the contact information requirements.

Consider the difference that adding a by-line can make. For example, “Working hard for new growth”, “An effective voice for [name] electorate”, “Advocating for the people of [name] electorate”. Adding a by-line may transform contact information into a candidate advertisement.

If you add in this type of by-line these words may, because of their open-ended nature, reasonably be regarded as evaluating your effectiveness as a current MP and referring to what you can and will do in the future if re-elected, in a way that may reasonably be regarded as encouraging or persuading voters to vote for you as a candidate.

Letters to constituents

MPs write to people for all sorts of reasons, e.g. general information, welcoming new enrolees to the electorate congratulating new citizens etc.

As with all of these types of mailouts, the question of whether something is an election advertisement will come down to the context and content of the letter. Once your candidacy is announced, you will need to consider whether the letter could meet the test of being a candidate advertisement.

Saying that you are the MP for a particular electorate or area and providing your contact details will not be election advertising, but be careful about open-ended statements and comments about your effectiveness.

Even if you do not consider that you are promoting yourself, you will need to be careful around references to the election, for example, mentioning that you are also the party’s candidate for the electorate in the general election, or referring to issues constituents should think about when voting.

Surveys

The Electoral Act includes an express exemption for surveys and opinion polls from the definition of election expenses. However, this does not mean everything published in a survey format is automatically exempt, which is often a source of confusion. The courts have found that if a survey goes beyond merely eliciting voters’ views and can reasonably be regarded as encouraging or persuading voters to vote for an electorate candidate or political party (often referred to as push polling) then it will be an election advertisement. It will require a promoter statement, and if it is published during the regulated period the costs will be an election expense.

You might be asking a constituent which party they usually support with a list of parties, or an open question such as what are your biggest concerns for the electorate. From the point of view of the Electoral Act, these are not election advertisements.

If your survey asks questions in a leading way, promotes your party’s policy and directs the answers, then the survey is likely to be an election advertisement and needs to comply with the election advertising rules.

MP newsletters and flyers

Whether a newsletter or flyer is an election advertisement will come down to its context and content.

Even if your MP newsletter is only sent to people who have subscribed to it, this does not take it outside the rules. For the purposes of the Electoral Act, it is still being ‘published’ which is defined to include distributing by any means.

A factual account of your constituency activities, local events, and contact details will not be election advertising. However, once your candidacy is announced, you will need to consider whether the content, including photographs, could meet the test of being a candidate advertisement. For example, does it talk about your success on a local issue, or does it praise or criticise the Government’s performance? If so, it could be candidate or party advertising.

Social media, websites, emails and press releases

The advertising rules in the Electoral Act apply to election advertising in all media.

If you send out your newsletter by email or put material up on your website including things like press releases these are communications that are subject to the election advertising rules. The definition of publish includes disseminating by means of the internet or any other electronic means.

Where MP publications on the internet or other electronic medium are not covered by the personal political views exemption, the Commission looks at the content of the website or social media page as a whole to determine whether it is an election advertisement.

An MP’s website may be made up of several pages containing, for example, information about the MP’s activities, their party’s policies, copies of newsletters, etc. If your website has content that can reasonably be regarded as encouraging or persuading voters to vote for the party or its candidates the website will be an election advertisement.

The same approach is taken when considering social media. For example, when determining whether or not your Facebook page is an election advertisement, the Commission looks at the Facebook page as a whole, including the content you are responsible for publishing such as your posts and profile photos. Generally, where individuals post comments on an MP’s Facebook page the personal political views exemption is likely to apply to those posts.

Where the website or webpage is an election advertisement, you do not need to include a promoter statement in each picture, article or post on the site, provided the promoter statement is contained on the home page or the page that contains the election advertising.

On Facebook, Twitter, Instagram and YouTube we recommend you include the promoter statement in the ‘About’ or profile section for your account or channel.

References to websites

If publicity contains a website reference, 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 a candidate advertisement, party advertisement, or both, for the purposes of the Electoral Act.

For example, if the statement: ‘Go to www. voteformyparty.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 account.

Listing a website is fine, but if you use words or graphics that encourage readers to visit a website, the content of both the publicity and the website will need to be considered.

Party logos

The presence of your party logo on MP communications or signage does not in itself make it party advertising if the size and relative prominence of the logo is such that it is simply identifying that you are an MP for that party.

However, if your publicity or signage does not fall within the MP contact information exemption, and the party logo is very prominent, the context, size and relative prominence of the logo may mean that it may reasonably be regarded as encouraging a vote for the party and therefore require a promoter statement and authorisation from the party secretary.

Take care with regional hub office signage, that the party name and branding is not more prominent than MP names and contact details.

Items distributed for public display

MPs need to think carefully about the use of items such as bumper stickers, banners and flags because of the fact that they inherently involve ongoing public display. If you do produce and distribute these sorts of items, and the items are election advertisements, the Commission’s advice is that even if you distribute them before the start of the regulated period, you should assume that they will continue to be displayed during the regulated period.

If the item promotes you as a candidate, for the purposes of the Electoral Act the items will be candidate advertisements from the date your intention of becoming a candidate is announced. If the item promotes your candidacy you have to include the cost of these items as a candidate election expense. If the item promotes the party, you need the party secretary’s authorisation and the costs will be a party election expense.

Because it is assumed display items handed out before the regulated period will continue to be displayed during the regulated period you will need to attribute a fair proportion of the cost of the items to the regulated period for the purposes of election expenses.

The amount to be counted as an election expense will depend on when the items were handed out before the regulated period. For example, if 500 bumper stickers promoting your candidacy were distributed a week before the commencement of the regulated period and the regulated period was to run for nine weeks, 90% of the cost would be a candidate election expense.

Apart from the issues regarding expenses, the Commission advises candidates and parties against using this type of publicity because once distributed, you cannot be sure that the bumper sticker will not continue to be displayed on election day, thereby exposing your supporters to the risk of inadvertently committing an offence because of the rules that prohibit the display of party or candidate names, emblems, slogans or logos on election day.

Other items for distribution

If you distribute items such as pens and fridge magnets that only contain your contact information, the items will be exempt. If they do not fall within the exemption, you need to determine whether they are election advertisements and require a promoter statement and, if they are promoting the party, the need for your party secretary’s written authorisation.

As these items are personal to the recipient, if they are handed out before the regulated period they will not count as an election expense. Only those items distributed during the regulated period will count towards your election expenses.

Care needs to be taken when items like pens and fridge magnets are distributed with other material. Combining parliamentary funded material and campaign material is likely to give rise to complaints. The Parliamentary Service can advise you whether their rules permit parliamentary funded material being distributed with election advertising during the regulated period.

Business and community directories

When you or your staff place advertising in items like business or community directories and school newsletters, check whether there are going to be any accompanying words or graphics that may make the advertising an election advertisement. For example, it is common for such directories to include accompanying words or graphics that encourage readers to support featured advertisers.

These items may attract complaints in the lead-up to the election.

Last updated: 29 March 2017