The Broadcasting Standards Authority (BSA) has dismissed the Labour Party’s complaint that the ”Prime Minister’s hour” broadcast on RadioLive on 30 September 2011 was an “election programme” in terms of the Broadcasting Act 1989, and breached Code of Broadcasting Practice in relation to election programmes.
To be an election programme in terms of section 69 of the Broadcasting Act the show had to encourage or persuade, or appear to encourage or persuade voters to vote, or not to vote, for a political party or the election of any person at an election.
The BSA has interpreted this section as capturing programmes which “overtly and directly” act to encourage or persuade. They consider that programmes which may in an “incidental, resultant, secondary or consequential way amount to encouragement, persuasion, advocacy or opposition for or to a particular political outcome are not captured by section 69”.
In the case of the Prime Minister’s Hour, the BSA came to the conclusion that it did not come within their interpretation of an election programme because it did not “actively encourage, persuade, advocate or oppose a political outcome”. Nor did “the mere presence” of the PM make it an election programme.
I can understand why John Key agreed to the format and Phil Goff made the complaint, however. They both know that John Key doesn’t have to talk politics to accrue political capital. It’s John Key’s personality, his ability to transcend politics and relate to people at a non-political level, that is currently attracting votes away from Labour. The non-overtly-political format of the PM’s Hour played directly to John Key’s personal and electoral strengths. And this has irked Phil Goff.
It’s a classic example of something I have been arguing for years. In this era of permanent campaigning all manner of activities, behaviours, events and messages are electioneering. They may not explicitly ask for the vote, but all are undertaken in order to be viewed favourably by voters with the ultimate goal of gaining as many party votes as possible at the next general election.
The current election broadcasting and advertising laws do not reflect the realities of modern campaigning. I’m sure the Electoral Commission will also find that that, in response to Labour’s complaint that the programme was an election advertisement, the show does not confirm with the Electoral Act’s definition of election advertisement either, because it will be covered by the exemption for editorial content of a periodical, radio or television programme.
Electoral law will always be playing catch-up here, because it is unable to predict every form of campaigning that will occur in the future. With proliferating channels of communications, rapidly changing technologies and multiple messages competing for attention, electioneering will increasingly be carried by the intangible and the implicit: things like smells, movements, locations, physical actions, projections, shapes, spaces, smiles, colours… Anything may be an election offering, at any time, and none of these are covered by existing legislation.
And nor should they be! We actually need laws that enhance rather than restrict politicians and political parties from engaging with citizens. Political communication is good not bad. All the current laws do is encourage sideshows as officials fruitlessly deliberate whether something is an election broadcast or ad. Between 1 January and 10 October 2011 (when I requested this info) the Electoral Commission had received 619 requests for advisory opinions about whether a piece of political communication is an election advertisement or not. A number of these requests related to multiple items of publicity. And each one took between 3-5 working days to process. What a ridiculous waste of time and taxpayers’ money this is.
Rather than cry foul, what Phil Goff needs to do is be creative and find something to do on the campaign trail that Key hasn’t thought of first. That is what successful challenger brands do when they are going after the market leader in the commercial market. The same imperative exists in the political leadership market.