election advertising guidance for mps

8/6/2019 Election Advertising Guidance for MPs

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Election Advertising Rules

Guidance for MPs

June 2011


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The key definition that sets the scope of the regulatory regime is the definitionof election advertisement.

Election advertisement is defined as an advertisement in any medium that mayreasonably be regarded as encouraging or persuading voters to vote or notvote:

for a candidate or party, or

a type of party or candidate described or indicated by reference to viewsor positions that are, or are not, held or taken (for example, vote forparties that support lowering the drinking age).

For the purposes of the election advertising rules, a candidate is aconstituency candidate. A person becomes a constituency candidate from thepoint that he or she has declared his or her intention of becoming aconstituency candidate, which is a question of fact. Once you have made yourcandidacy 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 inany medium it is not limited to traditional forms of advertising such asnewspapers, 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 andcontext regardless of whether the advertisement includes the name of a partyor 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 notprovide any exemption for MP communications. The philosophy behind it isthat all candidates are subject to the same rules in the election campaign.

New definition election advertisement


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Editorial content

There is an exemption for the editorial content of a periodical, radio ortelevision programme, or news media Internet site. A periodical is anewspaper, magazine, or trade or professional journal that was established for

purposes unrelated to the election, published at regular intervals andgenerally 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 ortrade or professional journals.

What if you have been asked to write a column in your local paper? This isexempt. Whatever you write will fall within the exemption for editorial

content chosen by the editor. The exemption covers everything in anewspaper except advertising, and advertorial.

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

Personal political views online

There is an exemption for the publication of personal political views by anindividual on the Internet or other electronic medium, provided the individualdoes not make or receive payment for publishing those views.

Election advertisement exemptions

While the definition of election advertisement sets the scope, not everythingthat is election related will be an election advertisement. There are somespecific exemptions:


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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 newspapersadvertising their availability to meet with constituents.

This exemption is very tightly defined. For the exemption to apply, the contactinformation must include your name, contact details, your electoral district or the factthat you are a list member.

The contact information may also include for example, your photo, party name, andlogo.

MP contact details exemption

There are other requirements as well, for example, contact information publishedwithin 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 regulatedperiod.

To fit within the exemption the proposed publication cannot go beyond the list ofallowed content. For example, a leaflet containing contact information and alsoinstructions on how constituents can sign up for your newsletter takes the newsletteroutside the exemption and back into the general test of whether it is an election

advertisement.
http://seattledrillteamassoc.com/joomla/images/Pics/alumnipics/silhouette_head.jpg


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Whether parliamentary publications or signage are election advertisements willdepend on content and context.

When considering a particular item of publicity, the following are some of thefactors which indicate that it may be an election advertisement:

references that directly or indirectly evaluate an MPs and/or their partyseffectiveness during the parliamentary term or previously,

references to the election,

references to an MPs and/or their partys policy platform for the election, orwhat 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 thepartys own election campaign material.

If part of a communication is deemed to be an election advertisement, thenthe whole item will be for the purposes of the rules, which is an importantfactor when it comes to accounting for the costs of the item.

The implications of an advertisement being deemed to be an electionadvertisement are covered in the following sections on the promoter statement

and authorisation requirements, the regulated period, apportionment ofexpenses, and Parliamentary Service funding.

Other parliamentary publicity


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An election advertisement must contain a promoter statement setting out thepromoters name and address.

A promoter is the person initiating the advertisement.

If you are promoting an election advertisement, you need to include either yourresidential street address or the address of any other place where you can usually becontacted during business hours.

For MPs this can include your parliamentary or out-of-Parliament office address. A PostOffice box or website address is insufficient.

The promoter statement must be clearly displayed in the advertisement . To avoidcomplaints, the following format for promoters statements is recommended:

Promoted/Authorised by [MPs name], [MPs relevant full street address].

Promoter statement

The Electoral Commissions advice is that if you are not sure, err on the side ofcaution, and put in a promoter statement. Putting a promoter statement in willnot change the advertisements status.

MPs can promote election advertisements. There are issues to be aware of if youare going to be a list-only candidate, or you are an MP who is retiring at the end ofthis 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 ElectoralCommission after writ day - 26 October 2011. An MP who is retiring can onlyspend up to $12,000 during the regulated period unless he or she registers as aregistered promoter with the Electoral Commission. There is more detail availablein the Electoral Commissions Parliamentary Candidate Handbook as to why this is.


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Be aware that if something is deemed to be an election advertisement thatpromotes 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 thatpromote a candidate or party will count towards both the candidates and thepartys election expenses.

You dont need to give yourself written authorisation to publish your candidateadvertisements but if your publications encourage or persuade voters to votefor 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 isable to promote them through election advertising;

secondly, if a third party wants to promote you by publishingadvertisements during the regulated period, they must have your priorwritten authorisation, because it will count as part of your electionexpenses.

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Authorisation


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Because the dates for the election have been announced, we know that theregulated period for election expenses for the 2011 general election will start onFriday 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 ofconfusion. The answer is that it is significant for election expenses andParliamentary Service funding.

In terms of election expenses the regulated period is the period during which theexpenditure limits for parties and candidates operate: $25,000 for candidatesand $1.065 million plus $25,000 per electorate contested for parties.

However, it is not the only time that the other rules regarding electionadvertising apply for example, the requirement for a promoter statement andthe requirement for written authorisation to promote a party or candidate applyat all times.

These requirements are not new. They have been in the Electoral Act for manyelections.

Significance of the regulated period


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The electoral rules require the apportionment of election expenses in certaincircumstances. MPs will need to apportion election expenses where:

an election advertisement is published before and during the regulatedperiod,

an election advertisement promotes both the candidate and the party,and

an election advertisement promotes two or more candidates.

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Apportionment of election expenses

Expenses cannot be apportioned between elections. For example, where officesignage or vehicle signage is used over more than one election you will need toaccount for the cost of the advertisement as an election expense at eachelection. 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 wouldcost to purchase now based on two quotes.

If an election advertisement has been published throughout the parliamentaryterm and continues to be published up until polling day you must apportion afair amount of the expenses to the regulated period (for example, if theadvertisement has been published throughout the three year term a twelfth ofthe cost would be counted to reflect the cost incurred during the regulatedperiod).

Apportionment is a factual exercise determined by the circumstances of eachcase. The Electoral Commission is happy to discuss apportionment questions.


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Parliamentary Service funding will not be available for any communication that is anelection advertisement published during the regulated period as defined in theElectoral Act.

Outside the regulated period, and even if publicity is funded by the ParliamentaryService, you still need to consider the promoter statement and authorisationrequirements of the Electoral Act. The definition of election advertisement is widerthan explicitly calling for votes, membership or money.

Where something is published both before and during the regulated period, or willcontinue to be published during the regulated period, the costs will need to beapportioned, so that the Parliamentary Service only funds election advertising up untilthe beginning of the regulated period. More information on the funding of MPspublicity is available from the Parliamentary Service.

MPs and Parliamentary Service funding

The other consequence of something being an election advertisementpublished during the regulated period relates to Parliamentary Servicefunding.

In December 2010 changes were made to the Parliamentary Service Act2000 to restrict funding during the regulated period.

In summary, outside the regulated period Parliamentary Service fundingwill be available for MP communications as long as they have aparliamentary purpose and do not ask for money, votes, or partymembership.


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Examples


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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 ifthey 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.

Signage and stationery


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Some MPs write to people that have been added to the electoral roll in thearea that they represent.

As with all of these types of mailouts, the question of whether something isan election advertisement will come down to the content of the letter. Onceyour candidacy is announced, you will need to consider whether the contentcould meet the test of being a candidate advertisement. It is fine to say I amthe MP for a particular electorate or area and here are my contact details, butbe careful about open-ended statements and comments about youreffectiveness.

Even if you do not consider that you are promoting yourself, be careful aroundreferences to the election, for example, mentioning that you are also thepartys candidate for the electorate in the general election, or comments suchas Think about the economy when you vote on Saturday.

If in doubt, include a promoter statement and or seek advice from theElectoral Commission.

Letters to new voters


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The Electoral Act includes an express exemption for surveys and opinion polls

from the definition of election expenses. However, this does not mean thatsurveys 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 merelyeliciting voters views and can reasonably be regarded as encouraging orpersuading voters to vote for a constituency candidate or political party (oftenreferred to as push polling) then it will be an election advertisement. It willrequire a promoter statement, and if it is published during the regulated periodthe costs will be an election expense.

Above is an example of a survey question that an MP might want to include in asurvey sent out in their capacity as an MP.

This will not be an election advertisement. The survey seeks to elicit votersviews in a neutral, open ended way and does not seek to encourage orpersuade.

You might also be asking a constituent which party they usually support with alist of parties, or an open question such as what are your biggest concerns forthe electorate. From the point of view of the Electoral Act, these are notelection advertisements.

Surveys? depends on the question

Should the alcohol purchase age be

changed?


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Here is another example. Consider the difference. This is an election

advertisement because it would be regarded as encouraging or persuadingvoters to vote for the party.

If your survey questions promote your policy, ask questions in a leading wayand direct the answers, then the survey is likely to be an electionadvertisement and needs to comply with the election advertising rules.

The Electoral Commission is happy to review a proposed survey, and provide aview on whether or not it is and election advertisement. The Electoral

Commission regularly gets requests for advice on surveys.

Surveys? depends on the question


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Even if your newsletter is only sent to people who have subscribed to it, thisdoes not take it outside the rules. For the purposes of the Electoral Act, it isstill 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 isannounced, you will need to consider whether the content could meet the testof being a candidate advertisement. For example, does it talk about yoursuccess on a local issue, or does it praise or criticise the governmentsperformance? If so, it could be candidate or party advertising.

MP newsletters and flyers - content is key

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


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The advertising rules in the Electoral Act apply to election advertising in allmedia. If you send out your newsletter by e-mail or put material up on yourwebsite including things like press releases these are communications that aresubject to the election advertising rules. The definition of publish includesdisseminating by means of the Internet or any other electronic means. So, aswith 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 orreceive a payment in respect of the publication of those views. This exemptionwill not cover party websites and party press releases because these are notthe personal political views of an individual. Whether or not it will cover anMPs website, online press release, and social media pages would depend onwhether the content is the expression of personal political views by anindividual.

MPs communications on their own websites or through social media arecovered by this exemption providing they are expressing a personal political

view. Whether an MP is expressing a personal political view as opposed to aparty 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 anoffence, at any time on election day before the close of the poll at 7pm, topublish any statement intended or likely to influence any elector as to thecandidate or party for whom the elector should or should not vote.

The Electoral Commissions advice to MPs using social media is not to postmessages on election day that could breach these rules. MPs should ensurethat public message boards and comment areas on their websites cannot beadded to on election day.

Websites, e-mails and press releases


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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 notfall within the definition of an election programme.

The Broadcasting Act 1989 prohibits the broadcasting of any electionprogramme except during the period from writ day to the day before pollingday (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 votersto 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 theuse of by-lines. If in doubt you can seek advice from the Commission.

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Radio advertisements


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The presence of your party logo on a MP communication does not in itself makeit party advertising if the size and relative prominence of the logo is such that itis simply identifying that you are a member of Parliament for that party.

However, if your publicity or signage does not fall within the MP contactinformation exemption, and the party logo is the biggest thing you see, thecontext, size and relative prominence of the logo may mean that it mayreasonably be regarded as encouraging a vote for the party and thereforerequire a promoter statement and authorisation from the party secretary.

Party logos


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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 donot fall within the exemption, you need to determine whether they are electionadvertisements and require a promoter statement and, if they are promotingthe party, the need for your party secretarys written authorisation.

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

Personal items distributed


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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 advisescandidates 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.

Items distributed for public display


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If you require an advisory opinion you will need to supply a copy of theadvertisement, which can be sent as an email attachment. Your covering emailor letter should explain when it is to be published and in what medium. TheElectoral Commission generally responds within 5 working days but will do itsbest to meet your expectations if your request is urgent. If you have publicitythat 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 complainsthat you have breached the rules.

If you do seek advice, the Electoral Commission will not release your draftpublicity and any advice the Electoral Commission gives until after the election,when it would be subject to the Official Information Act 1982. This means youcan be confident that there will be no premature disclosure of your draftpublicity.

On the other hand, you are free to share any advice with whomever youchoose, including the Parliamentary Service and your colleagues. Mediaadvisory units that obtain advice can also share that with you so that you canuse the information for your own communications planning.

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Advisory opinions

The legislation provides for you to request an advisory opinion from theElectoral Commission on whether a particular piece of publicity is an election

advertisement.


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The Electoral Commission has also produced guidance for candidates, partiesand third parties which contain information that has been updated to reflectthe new election advertising rules and the referendum advertising rules.

Candidate Handbook 2011 General Election and Referendum

Party Secretary Handbook 2011 General Election andReferendum

Third Party Handbook 2011 General Election and Referendum

The handbooks are available at www.election.org.nz and from June will also beavailable in hard copy.

If you have publicity and are not sure about the rules, please contact theElectoral Commission.

Address: PO Box 3220, Wellington

Level 9, 17-21 Whitmore Street, Wellington

Telephone: 04 495 0030

Fax: 04 495 0031

Email: [email protected]: www.elections.org.nz

www.electionresults.govt.nz

Contact details
http://www.election.org.nz/mailto:[email protected]://www.elections.org.nz/http://www.electionresults.govt.nz/http://www.electionresults.govt.nz/http://www.elections.org.nz/mailto:[email protected]://www.election.org.nz/

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