3.1 Introduction
There are detailed rules in the Electoral Act 1993 and the Broadcasting Act 1989 on what third parties can and cannot do when campaigning. The key messages are:
- Election advertisements published at any time in any medium must contain a promoter statement.
- Third parties cannot broadcast election programmes on radio and television at any time.
- Third parties cannot promote a candidate or party at any time without their written authorisation.
- Campaigning on election day is a criminal offence.
This part of the handbook explains these rules in more detail. Part 4 explains your obligations concerning election expenses. Part 5 sets out the restrictions on election day.
The advertising and expenditure rules that apply to candidates are set out in the booklets Candidate Handbook – General Elections and Candidate Handbook – By-elections. The rules for parties are set out in the Party Secretary Handbook – General Elections.
3.2 Election advertising
All election advertising must contain a promoter statement
All election advertisements irrespective of when they are published must state the name and address of the person that has initiated or instigated them (‘the promoter’). [See section 204F of the Electoral Act].
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 unregistered, 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.
For example:
“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 it can be the full street address of the body’s principal place of business or head office.
For registered 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.
Failing to include a promoter statement is an offence and subject to a fine of up to $10,000 for unregistered promoters and $40,000 for registered promoters.
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.
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 Electoral 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 advertisment, 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.
Advertisements promoting a candidate or party must be authorised in writing
Advertisements promoting a candidate or party published by third parties must have the prior written authorisation of the candidate or party.
The costs of any third party advertisements published during the regulated period (20 June to 19 September 2014) that promote a candidate or party will count towards your third party election expenses and may need to be disclosed in your return of third party election expenses (see Part 4) as well as counting towards the candidate or party’s advertising expenses.
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 are 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 the term ‘advertisement’ should be interpreted broadly. For example, it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets, radio and TV broadcasting. 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.
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.
[Section 3D of the Electoral Act]
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. This exception only applies to advertising published by MPs.
Editorial content
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 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 group because the exemption is restricted to the publication of personal views by an individual.
Where an election advertisement posted on Facebook, Twitter, or other social media site 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.
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 advisory 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. [See section 204I of the Electoral Act]
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’.
The cost of these types of election related advertisements are not counted as part of a third party’s election expenses.
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 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.
Radio or television advertising
There are separate rules applying to radio or television advertising as distinct from other forms of advertising. [See Part 6 of the Broadcasting Act 1989]
Third parties are prohibited from broadcasting at any time any election programme within the definition of the Broadcasting Act. An ‘election programme’ is defined as:
“a programme that—
(a) encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election; or
(b) encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at an election; or
(c) advocates support for a candidate or for a political party; or
(d) opposes a candidate or a political party; or
(e) notifies meetings held or to be held in connection with an election”.
It includes “visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text”.
Except on election day, third parties may broadcast an advertisement that relates to an election, such as advocating for or against a policy, but it must not name or, directly or indirectly, advocate for or against identifiable parties or candidates. The promoter statement must be included in the broadcast.
Press and other advertising
Advertising in forms other than radio or television can promote a candidate or party policies or attack a candidate or party policies.
Expenditure on press advertising and other forms of promotion such as hoardings are election expenses.
Canvassing and surveys
The rules relating to the requirement for a promoter statement and election expenses apply to election advertisements that are ‘published’. However, the definition of publish expressly excludes addressing one or more persons face to face. This means that face to face canvassing activities are exempt from the requirement for a promoter statement and do not need to be considered in terms of election expenses.
The Electoral Act includes an express exemption for surveys and opinion polls from the definition of election expenses. Be aware that the Courts have found that if a survey goes beyond merely eliciting voter’s views and can reasonably be regarded as encouraging or persuading voters to vote or not vote for a constituency candidate or political party (often referred to as push polling) then it will be an election advertisement.
If survey questions promote a party or candidate’s policies, for example by asking questions in a leading way and directing the answers, then the survey is likely to be an election advertisement and needs to comply with the election advertising rules.
The Electoral Commission is happy to review a proposed script or survey and provide a view on whether or not it is an election advertisement.
Websites and social media
Where a website, including YouTube, Facebook, Twitter or other social media, is used by a third party to express third party political views on behalf of a group, the exemption for personal political views discussed in paragraph 3.2 does not apply.
To determine whether a website or social media page is an election advertisement, the Commission looks at the content of the site or page as a whole. A third party website may be made up of several pages containing, for example, information about the third party and its objectives, how to join or donate to the third party and other information. If a third party website has content that can reasonably be regarded as encouraging or persuading voters to vote or not vote for a party or a candidate, the whole website will be an election advertisement.
The same approach is taken when considering social media. For example, whether or not a third party’s Facebook page is an election advertisement, the Commission looks at the Facebook page as a whole, including the content the third party is responsible for publishing such as the third party’s posts and profile photos. Generally, where individuals post comments on a third party’s Facebook page the personal political views exemption is likely to apply to those posts.
Where the website or webpage is an election advertisement, a promoter statement does not need to be included 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 we recommend you include the promoter statement in the ‘About’ section. For sites such as Twitter, YouTube and Pinterest the promoter statement can be included in the landing page for your site.
Where you pay for an election advertisement to appear unsolicited on another person’s web page, for example, a promoted post or banner advertisement on Facebook or Twitter, a promoter statement must be included on the advertisement itself. You cannot rely on a link back to another page which contains a promoter statement. If there are a limited number of pixels to include a promoter statement on the advertisement it is acceptable to abbreviate the promoter statement, for example ‘Promoted by Anthony Secretary, 111 Any Street, Auckland’ could be abbreviated to ‘A Secretary, 111 Any St, AKLD’.
Broadcasting Standards Authority, Advertising Standards Authority, Online Media Standards Authority and Press Council
Broadcasting on television and radio comes within the jurisdiction of the Broadcasting Standards Authority (BSA). Any broadcasting must comply with the relevant Code i.e Free-to-air television, Pay television or Radio which are available on the BSA website (www.bsa.govt.nz). Complaints are made directly to the BSA online at www.bsa.govt.nz or PO Box 9213, Wellington).
For advice on the Code contact the BSA (phone: 0800 366 996 or email: info@bsa.govt.nz).
The content of advertising in other media (including websites) comes within the jurisdiction of the Advertising Standards Authority (ASA). Advertising must comply with the ASA Codes of Practice. The codes are available on the ASA website (www.asa.co.nz). Complaints can be made to the Advertising Standards Complaints Board (phone: 04 472 7852 or email: asa@asa.co.nz).
The Online Media Standards Authority (OMSA) handles complaints about news and current affairs published online by any of its members. Online news and current affairs of its members must comply with OMSA’s Code of Standards. The code and list of members are available on the OMSA’s website (www.omsa.co.nz). Complaints can be made to the OMSA’s complaints committee online at www.omsa.co.nz.
The New Zealand Press Council is responsible for considering any complaints about the editorial content of a newspaper, magazine or periodical in circulation in New Zealand (including their websites).
Generally a person bringing a complaint against a publication must, unless exempted by the Executive Director of the Council, first lodge the complaint in writing with the editor of the publication.
If the complainant is not satisfied by the editor’s response or receives no response from the editor within a period of 10 working days from the date on which the editor received the complaint, the complainant may then complain to the Press Council (online at www.presscouncil.org.nz or PO Box 10 879, The Terrace, Wellington).
Complaints must be made in writing preferably using the online form. Further information about the time limits for bringing complaints and the complaints procedure are available at www.presscouncil.org.nz.
Electoral signs
Local authorities are responsible for regulating when, where, and how signs, including election signs can be displayed. Third parties should consult with their local authority about the rules in their area before putting up any election signs.
The Electoral Act 1993 allows for election signs up to three square metres in size to be put up in the two months before election day. This provision overrides any more restrictive local authority rules about size and timing of the display of signs.
Any local authority rules about matters like application procedures and the location and density of signs still apply. Larger signs may be put up if local authority rules allow. Signs may be put up earlier if local authority rules allow.
You must not pay an elector of a district for providing a place to exhibit a sign or hoarding in that district 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. There is no other restriction in the Act on when electoral signs may be displayed.
You do not have to account for the cost of the framework used to support a hoarding as an election expense (see Part 4 for more information on what are election expenses).
3.3 Advance voting
Advance voting for those who are unable to get to a voting place on election day will be available from Wednesday 3 September 2014 (17 days before election day) up to Friday 19 September 2014 (the day before election day). The prohibitions applying to electioneering on election day do not apply during the advance voting period. However, third parties are asked to exercise restraint in the vicinity of advance voting facilities to avoid complaints during and after the election campaign. (Locations will be published on www.elections.org.nz).
3.4 Contact with public servants
Public servants serve the government of the day. In order to maintain the confidence of successive governments, they must act and be seen to act apolitically.
Therefore, public servants, whether in national, regional or local offices, must not comment on:
- party political matters, or
- the merits of policy, or
- alternatives to policy.
If you have questions on these matters you should address them to Ministers.
You, like any other member of the public, may get information from public servants under the Official Information Act.
You can get more detailed information on contact with public servants from the State Services Commission’s website: www.ssc.govt.nz
3.5 Treating
Treating is the provision of food, drink, and entertainment to persons with the intention of corruptly influencing their vote and is a criminal offence.
[Refer to section 217 of the Electoral Act for a full description]
The consequences of being found guilty of treating are:
- you lose your seat if you have been elected,
- you are not eligible to register as an elector for 3 years, and
- you may be sentenced to two years in prison and a $40,000 fine.
The Electoral Act states that the provision of a light supper after an election meeting does not constitute the offence of treating. The provision of a cup of tea or coffee and a light snack after a campaign meeting, therefore, is not treating.
You should be cautious about providing refreshments in connection with election related activities that do not clearly fall within the above exception to avoid complaints being made during the election campaign that you have breached the treating provisions.
3.6 Election Advertising Examples
Example 1: Billboard
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 advertising will count toward both Party A and the third party’s election expense limits.
Example 2: Billboard
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 3: Newspaper ad
This type of ad would be an election advertisement because it may reasonably be regarded as encouraging voters to vote for Party A. If a third party wants to spend $15,000 publishing this advertisement during the regulated period, 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 $15,000 cost of the election advertising will count toward both Party A and the third party’s election expense limits.
Example 4: TV ad
Based on the content of these ads, broadcasting them would be unlawful. A third party is not allowed to broadcast an election programme at any time. An election programme includes any programme that
appears to encourage voters not to vote for a party. In the lead-up to the election, these ads would appear to encourage voters not to vote for the governing party. As viewers are being encouraged to visit a website, the content of the website would also be considered in determining whether the ad is an election programme or election advertisement.
Example 5: 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.