CONFIDENTIAL MEMORANDUM TO: Broadcasters FROM: RBA / NZTBC / ASA DATE: 31 July 2008 SUBJECT: Confidential Advice for Broadcasters on Election Advertising Compliance Introduction Information in this memorandum is intended only as a guide. If broadcasters consider that there may be a problem with election advertising, it is recommended that further advice be sought. Please contact the relevant industry associations (if they provide an advisory service) in the first instance and the ASA Secretariat is also available to assist. In relation to a technical problem about interpretation of the legislation, assistance may be available from the Electoral Commission or legal advice should be obtained. Please note: This information is not intended for political parties or candidates and should not be provided to them. The information in this memo is to assist broadcasters in relation to any election advertising they deal with as part of their business operations. BROADCAST MEDIA Relevant legislation Broadcasting Act 1989 Electoral Act 1993 Electoral Finance Act 2007 New Zealand Bill of Rights Act 1990 What is an election ad? The definition of “election advertisement” in the Electoral Finance Act is very broad and states: “election advertisement — (a) means any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following: (i) encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates: (ii) encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated); and (b) includes— (i) a candidate advertisement; and (ii) a party advertisement.” Exceptions are provided for in the Act (including news) but generally, media accepting advertising will have to consider the definition above in deciding whether or not an advertisement an “election advertisement” or not. Most advertisements will be, but for instance, announcement of a party’s conference, provided it does not meet the criteria in the definition above, is unlikely to be caught by the Electoral Finance Act. The definition of “election programme” is in the Broadcasting Act and states: “Election programme means, subject to subsection (2) of this section, 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:” (note the near identical definitions between the two Acts, except for the reference in ‘election advertisement’ to ‘views, positions or policies’). Who can advertise on Radio and Television? Registered Political Parties and Candidates (spending limits apply) Registered and Unregistered Third Parties (spending limits apply) PART A – Registered Political Parties and Candidates What are the Rules on Content? Requirements of the Broadcasting Standards Authority All election advertisements on radio and television are defined by the Broadcasting Act as “election programmes”, and as such are bound by the BSA Election Programmes Code . You should also note that all the normal requirements for editorial content Codes apply to election advertisements, with the exception of the requirement to present a range of significant viewpoints on controversial issues of public importance. It is also worth noting that in general, the BSA gives considerable weight to Section 14 of the New Zealand Bill of Rights Act, which supports a high degree of freedom of speech. A copy of the Election Programmes Code of Broadcasting Practice is attached as Appendix A or see the BSA website ( www.bsa.govt.nz ) or contact the BSA office, 0800 366996 or [email protected]. The BSA Code includes the following requirements: • Fact clearly distinguished by opinion • Prohibition on material that denigrates a political party or candidate • No imitation of an existing programme in a manner which is likely to mislead • Opening and closing addresses clearly identified (applies only to TVNZ and Radio New Zealand). Requirements of the Electoral Act 1993 ( Not relevant for Radio Broadcasters) Section 197 of the Electoral Act covers corrupt and illegal practices and as in previous elections, it is an offence to publish an imitation ballot paper in full or in part that may contain an “instruction to vote”. However the Electoral Commission has advised that it considers an election advertisement that contains a tick against a party or candidate name does not, of itself, offend this provision. Requirements of the Electoral Finance Act 2007 In addition to the BSA rules above, Section 63 of the Act requires every election advertisement to contain the first name and surname of the promoter and their home address, right down to the house number and street, road etc. In some cases, candidates will nominate themselves as the promoter / financial agent, in other cases it may be the secretary of the relevant political party or some other person. If the media are in doubt with regard to the identity of the promoter, the advertiser should be asked to confirm in writing that they are the registered promoter in relation to that candidate or party. When can they advertise? All broadcast election programmes are subject to the normal restrictions in relation to when advertisements can be broadcast. The period during which election programmes are permitted is from Writ Day to the day before Election Day. Writ Day will be announced when the date of the General Election is confirmed by the Prime Minister and members will be advised. NOTE: no election programmes may be run on Election Day, starting at 12.01am. Are there Rules about Advertising Rates? The Broadcasting Act requires that all political parties that are broadcasting election programmes are to be given identical terms. (For radio & TV?) This is the Government VID rate. It is permissible to offer candidates volume based discounts, provided the qualifying criteria are accessible to all advertisers. What if there is a Complaint? All “election advertisements” in the broadcast media should be sent directly to the Broadcasting Standards Authority. If a complaint comes to the media, it should be forwarded immediately to the BSA. Given the potential impact on the democratic process, the BSA is committing to 72-hour turn around of complaints, if at all possible, and is asking broadcasters to respond within 24 hours. While it is appreciated that this is likely to place time pressure on broadcasters’ internal processes, (especially since it is only reasonable to expect the advertiser to prepare the response), compliance with this request will be helpful. Note also that Complainants have up to 60 working days after broadcast to lodge a complaint thus it is necessary to retain copies of all “election advertisements” broadcast during the campaign for that period. For ease and speed of identification in the event of a complaint it is suggested that log identification of election advertisements be maintained. Information on Spending Limits and Invoicing Spending Limits Despite the problems encountered in the 2005 election, broadcasters have no legal rights or control over compliance with spending limits. Nonetheless, you are strongly advised to insist on a written acknowledgement from all election advertisers, that they understand what their limit is, inclusive of GST (and get them to spell this out) and that the proposed expenditure falls within this. Broadcast Election Programmes by Political Parties are limited to the amount allocated by the Electoral Commission and are listed below. Those political parties that have not been granted a broadcasting allocation are not able to advertise in broadcast media. The allocation has been challenged and could change but at the date of this memo it is as follows: Parties Monetary Opening Closing allocation address, address, (incl. GST) minutes minutes Total available $3,211,875 72 30 Labour Party, National Party $1,000,000 12 6 Green Party, M āori Party, NZ First $240,000 8 3 The ACT Party, Progressive, UNITED FUTURE $100,000 4 3 Aotearoa Legalise Cannabis Party, Democrats for social $10,000, plus 1 0 credit, Kotahitanga Te Manamotu Hake Tiriti o Waitangi , a production Libertarianz*, New World Order , New Zealand Liberals , package for Residents Action Movement , South Island Party , Alliance, the opening Family Party, Workers Party of New Zealand address worth (those in italics were not registered as at 29 th April 2008) over $7000 * will not receive the monetary allocation Note: Nineteen parties gave notice that they consider they will qualify for a broadcasting allocation. Of these, six are not currently registered but will need to be registered by writ day in order to receive an allocation. Note that in addition to Electoral Commission funding, political parties are entitled to spend in total the above amount, plus $1 million plus $20k for each electorate in which they have a candidate, but in the broadcast media can spend ONLY up to the limits listed in the table above. Also, all electorate candidates have a personal spending limit of up to $20,000 including GST and are able to spend all or some of this money on broadcast ‘election programmes’. Invoicing The Electoral Finance Act has a requirement regarding billing candidates and parties for election advertising. At the latest, a candidate’s financial agent must be billed for any election expenses within 20 working from the date the election results are notified in the Gazette.