Election Advertising Rules

Guidance for MPs June 2011

New definition election advertisement

The key definition that sets the scope of the regulatory regime is the definition of election advertisement. Election advertisement is defined as an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to vote or not vote: for a candidate or party, or a type of party or candidate described or indicated by reference to views or positions that are, or are not, held or taken (for example, vote for parties that support lowering the drinking age).

For the purposes of the election advertising rules, a candidate is a constituency candidate. A person becomes a constituency candidate from the point that he or she has declared his or her intention of becoming a constituency candidate, which is a question of fact. Once you have made your candidacy publicly known you need to consider whether what you are putting out could be regarded as candidate advertising.
Because the definition of election advertisement covers an advertisement in any medium it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets and radio and TV broadcasting. The test of whether something is an election advertisement is an objective test. It does not depend on the promoters purpose. 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. Apart from the contact information exemption, the Electoral Act 1993 does not provide any exemption for MP communications. The philosophy behind it is that all candidates are subject to the same rules in the election campaign.

Election advertisement exemptions

While the definition of election advertisement sets the scope, not everything that is election related will be an election advertisement. There are some specific exemptions:

Editorial content There is an exemption for the editorial content of a periodical, radio or television programme, or news media Internet site. A periodical is a newspaper, magazine, or trade or professional journal that was established for purposes unrelated to the election, published at regular intervals and generally available to members of the public. This does not cover an MPs newsletter, even if it has been put out regularly, because the definition of periodical is limited to magazines, newspapers or trade or professional journals. What if you have been asked to write a column in your local paper? This is exempt. Whatever you write will fall within the exemption for editorial content chosen by the editor. The exemption covers everything in a newspaper except advertising, and advertorial.

What about MP press releases? Press releases from an MP are not exempt. If the news media pick up your press release, then they will be exempt under the exemption for editorial content of a periodical, but this does not cover your release of the item. This issue is covered off further in the examples on page 17.
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.

MP contact details exemption

MP contact details There is also a specific exemption for MPs publishing their contact information, for example, their electorate office and vehicle signage, or the ads in newspapers advertising their availability to meet with constituents. This exemption is very tightly defined. For the exemption to apply, the contact information must include your name, contact details, your electoral district or the fact that you are a list member. The contact information may also include for example, your photo, party name, and logo.

There are other requirements as well, for example, contact information published within the regulated period must have been routinely published in the same medium, no more often, and to no greater extent than it was published before the regulated period. To fit within the exemption the proposed publication cannot go beyond the list of allowed content. For example, a leaflet containing contact information and also instructions on how constituents can sign up for your newsletter takes the newsletter outside the exemption and back into the general test of whether it is an election advertisement.

Other parliamentary publicity

Whether parliamentary publications or signage are election advertisements will depend on content and context. When considering a particular item of publicity, the following are some of the factors which indicate that it may be an election advertisement: references that directly or indirectly evaluate an MPs and/or their partys effectiveness during the parliamentary term or previously, references to the election, references to an MPs and/or their partys policy platform for the election, or what they will do if elected or re-elected, references to a candidate who is not an existing MP, and formatting or branding of a communication in a manner similar to the partys own election campaign material. If part of a communication is deemed to be an election advertisement, then the whole item will be for the purposes of the rules, which is an important factor when it comes to accounting for the costs of the item. The implications of an advertisement being deemed to be an election advertisement are covered in the following sections on the promoter statement and authorisation requirements, the regulated period, apportionment of expenses, and Parliamentary Service funding.

Promoter statement
An election advertisement must contain a promoter statement setting out the promoters name and address.

A promoter is the person initiating the advertisement.

If you are promoting an election advertisement, you need to include either your residential street address or the address of any other place where you can usually be contacted during business hours. For MPs this can include your parliamentary or out-of-Parliament office address. A Post Office box or website address is insufficient. The promoter statement must be clearly displayed in the advertisement. To avoid complaints, the following format for promoters statements is recommended: Promoted/Authorised by [MPs name], [MPs relevant full street address].

The Electoral Commissions advice is that if you are not sure, err on the side of caution, and put in a promoter statement. Putting a promoter statement in will not change the advertisements status. MPs can promote election advertisements. There are issues to be aware of if you are going to be a list-only candidate, or you are an MP who is retiring at the end of this term. A list only candidate is not eligible to promote an election advertisement from the point the list is submitted by your party to the Electoral Commission after writ day - 26 October 2011. An MP who is retiring can only spend up to $12,000 during the regulated period unless he or she registers as a registered promoter with the Electoral Commission. There is more detail available in the Electoral Commissions Parliamentary Candidate Handbook as to why this is.

Authorisation
Be aware that if something is deemed to be an election advertisement that promotes a candidate or party, then it must have the prior written authorisation of the candidate or party. The costs of any advertisements published during the regulated period that promote a candidate or party will count towards both the candidates and the partys election expenses. You dont need to give yourself written authorisation to publish your candidate advertisements but if your publications encourage or persuade voters to vote for your party, you must have written authorisation from the party secretary. There are two reasons for these requirements: firstly, it provides candidates and parties a power of veto over who is able to promote them through election advertising; secondly, if a third party wants to promote you by publishing advertisements during the regulated period, they must have your prior written authorisation, because it will count as part of your election expenses.

Significance of the regulated period

Because the dates for the election have been announced, we know that the regulated period for election expenses for the 2011 general election will start on Friday 26 August and will end at the close of Friday 25 November 2011. What is the significance of the regulated period? This can be a source of confusion. The answer is that it is significant for election expenses and Parliamentary Service funding. In terms of election expenses the regulated period is the period during which the expenditure limits for parties and candidates operate: $25,000 for candidates and $1.065 million plus $25,000 per electorate contested for parties. However, it is not the only time that the other rules regarding election advertising apply for example, the requirement for a promoter statement and the requirement for written authorisation to promote a party or candidate apply at all times. These requirements are not new. They have been in the Electoral Act for many elections.

Apportionment of election expenses

The electoral rules require the apportionment of election expenses in certain circumstances. MPs will need to apportion election expenses where: an election advertisement is published before and during the regulated period, an election advertisement promotes both the candidate and the party, and an election advertisement promotes two or more candidates.

Expenses cannot be apportioned between elections. For example, where office signage or vehicle signage is used over more than one election you will need to account for the cost of the advertisement as an election expense at each election. The Electoral Commission advises candidates to use the price that was originally paid for the item, or if this is not known, what the item would cost to purchase now based on two quotes. If an election advertisement has been published throughout the parliamentary term and continues to be published up until polling day you must apportion a fair amount of the expenses to the regulated period (for example, if the advertisement has been published throughout the three year term a twelfth of the cost would be counted to reflect the cost incurred during the regulated period). Apportionment is a factual exercise determined by the circumstances of each case. The Electoral Commission is happy to discuss apportionment questions.

MPs and Parliamentary Service funding

The other consequence of something being an election advertisement published during the regulated period relates to Parliamentary Service funding. In December 2010 changes were made to the Parliamentary Service Act 2000 to restrict funding during the regulated period. In summary, outside the regulated period Parliamentary Service funding will be available for MP communications as long as they have a parliamentary purpose and do not ask for money, votes, or party membership.

Parliamentary Service funding will not be available for any communication that is an election advertisement published during the regulated period as defined in the Electoral Act. Outside the regulated period, and even if publicity is funded by the Parliamentary Service, you still need to consider the promoter statement and authorisation requirements of the Electoral Act. The definition of election advertisement is wider than explicitly calling for votes, membership or money. Where something is published both before and during the regulated period, or will continue to be published during the regulated period, the costs will need to be apportioned, so that the Parliamentary Service only funds election advertising up until the beginning of the regulated period. More information on the funding of MPs publicity is available from the Parliamentary Service.

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Examples

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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 Matiu/Somes Island, Advocating for the people of Matiu/Somes Island. 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. If those words were combined with the name and photo of any other candidate they would be regarded as a campaign slogan. So be aware of the open-ended by-line. If in doubt seek advice from the Commission.

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Letters to new voters

Some MPs write to people that have been added to the electoral roll in the area that they represent. As with all of these types of mailouts, the question of whether something is an election advertisement will come down to the content of the letter. Once your candidacy is announced, you will need to consider whether the content could meet the test of being a candidate advertisement. It is fine to say I am the MP for a particular electorate or area and here are my contact details, but be careful about open-ended statements and comments about your effectiveness. Even if you do not consider that you are promoting yourself, be careful around references to the election, for example, mentioning that you are also the partys candidate for the electorate in the general election, or comments such as Think about the economy when you vote on Saturday. If in doubt, include a promoter statement and or seek advice from the Electoral Commission.

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Surveys? depends on the question

The Electoral Act includes an express exemption for surveys and opinion polls from the definition of election expenses. However, this does not mean that surveys are automatically exempt per se, which is often a source of confusion. Be aware that 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 a constituency 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.

Should the alcohol purchase age be changed?

Above is an example of a survey question that an MP might want to include in a survey sent out in their capacity as an MP.
This will not be an election advertisement. The survey seeks to elicit voters views in a neutral, open ended way and does not seek to encourage or persuade. You might also 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.

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Surveys? depends on the question

Here is another example. Consider the difference. This is an election advertisement because it would be regarded as encouraging or persuading voters to vote for the party.
If your survey questions promote your policy, ask questions in a leading way and direct 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 survey, and provide a view on whether or not it is and election advertisement. The Electoral Commission regularly gets requests for advice on surveys.

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MP newsletters and flyers - content is key

As with all of these types of mailouts, the question of whether something is an election advertisement will come down to the content.

Even if your 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 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 governments performance? If so, it could be candidate or party advertising.

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Websites, e-mails and press releases

The advertising rules in the Electoral Act apply to election advertising in all media. If you send out your newsletter by e-mail 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. So, as with all of these other items, content is key. There is an exemption for the publication on the Internet, or other electronic medium, of personal political views by an individual who does not make or receive a payment in respect of the publication of those views. This exemption will not cover party websites and party press releases because these are not the personal political views of an individual. Whether or not it will cover an MPs website, online press release, and social media pages would depend on whether the content is the expression of personal political views by an individual. MPs communications on their own websites or through social media are covered by this exemption providing they are expressing a personal political view. Whether an MP is expressing a personal political view as opposed to a party view will need to be determined on a case by case basis.

There are different rules that apply on election day. For example, it is an offence, at any time on election day before the close of the poll at 7pm, to publish any statement intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote.
The Electoral Commissions advice to MPs using social media is not to post messages on election day that could breach these rules. MPs should ensure that public message boards and comment areas on their websites cannot be added to on election day.

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Radio advertisements

If you currently advertise on radio to let constituents know that you are their MP, once your candidacy is announced, be careful that the content does not fall within the definition of an election programme. The Broadcasting Act 1989 prohibits the broadcasting of any election programme except during the period from writ day to the day before polling day (26 October to 25 November 2011). An election programme is defined to include a programme that: encourages or persuades or appears to encourage or persuade voters to vote or not vote for a political party or candidate, or notifies election meetings. Think about the content of your regular radio advertisements, and avoid the use of by-lines. If in doubt you can seek advice from the Commission.

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Party logos

The presence of your party logo on a MP communication 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 a member of Parliament for that party. However, if your publicity or signage does not fall within the MP contact information exemption, and the party logo is the biggest thing you see, 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.

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Personal items distributed

If you distribute personal items such as pens, fridge magnets and calendars, they are subject to the election advertising rules. If they contain your contact information only, then they are 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 secretarys 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 personal items distributed during the regulated period will count towards your election expenses.

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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 Electoral Commissions advice is that even if you distribute them before the start of the regulated period on 26 August 2011, 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. You will have authorised the display and are the promoter of the material. 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 secretarys authorisation and the costs will be a party election expense. The following provides an example of what this means in practice and how the expenses would be apportioned. If you hand out 500 bumper stickers as an MP on 26 May with an open-ended by-line that promotes your candidacy, then the Electoral Commissions advice is to assume they will be displayed three months before and three months during the regulated period. You would need to count 50% of the costs of the stickers as a candidate election expense.

Apart from the issues regarding expenses, the Electoral 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 polling 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.

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Advisory opinions
The legislation provides for you to request an advisory opinion from the Electoral Commission on whether a particular piece of publicity is an election advertisement.

If you require an advisory opinion you will need to supply a copy of the advertisement, which can be sent as an email attachment. Your covering email or letter should explain when it is to be published and in what medium. The Electoral Commission generally responds within 5 working days but will do its best to meet your expectations if your request is urgent. If you have publicity that you want to put out during the regulated period you do not have to wait seek advice now. An advisory opinion is not a legal ruling. However, the Commissions view is that relying on it in good faith is likely to be very relevant if someone complains that you have breached the rules. If you do seek advice, the Electoral Commission will not release your draft publicity and any advice the Electoral Commission gives until after the election, when it would be subject to the Official Information Act 1982. This means you can be confident that there will be no premature disclosure of your draft publicity. On the other hand, you are free to share any advice with whomever you choose, including the Parliamentary Service and your colleagues. Media advisory units that obtain advice can also share that with you so that you can use the information for your own communications planning.

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Contact details
The Electoral Commission has also produced guidance for candidates, parties and third parties which contain information that has been updated to reflect the new election advertising rules and the referendum advertising rules. Candidate Handbook 2011 General Election and Referendum Party Secretary Handbook 2011 General Election and Third Party Handbook 2011 General Election and Referendum

Referendum

The handbooks are available at www.election.org.nz and from June will also be available in hard copy.
If you have publicity and are not sure about the rules, please contact the Electoral Commission. Address: Telephone: Fax: Email: Websites: PO Box 3220, Wellington Level 9, 17-21 Whitmore Street, Wellington 04 495 0030 04 495 0031 enquiries@elections.govt.nz www.elections.org.nz www.electionresults.govt.nz

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