The Electoral Commission has lodged an appeal with the Court of Appeal over the High Court's recent ruling that the satirical Planet Key song and video during last year's election had not breached electoral laws.

In a statement, the Electoral Commission said it had filed papers with the Court of Appeal because it wanted clarification on the meaning of 'election advertisement' and 'election programme' after two apparently inconsistent rulings by the High Court.

Chief Electoral Officer Rob Peden said it was not challenging the findings of the court on Watson's song as they applied to the facts in that case. Its appeal was to clarify the approach the Commission should be taking when it was weighing up whether something was an 'election advertisement' or 'election programme.'

He said the the High Court in two decisions it made relating to the 2014 campaign had appeared to take different approaches to the legal interpretation of election advertisement. "Clarification is needed to ensure the Commission is able to provide advice and guidance to parties, candidates and third parties on their obligations in respect of electoral matters."


One of those concerned Darren Watson's Planet Key song, which the Electoral Commission considered was an election advertisement and would be an election programme if broadcast so would breach the Electoral Act and Broadcasting Act. That meant television and radio stations could not play it other than as part of a news bulletin.

However the High Court ruled in April that it was not an election programme or election advertisement.

The other case was a Greenpeace 'Climate Voter' website in the lead up to the 2014 election. In that case, the High Court agreed with the Electoral Commission's view that it was an election advertisement and should be covered by the rules around election advertising. However, the court also ruled that another Greenpeace website targeting Energy Minister Simon Bridges was not an election advertisement because it related to Mr Bridge's role as Minister.

The Electoral Act has specific requirements for 'election advertisements' at any time while the Broadcasting Act tightly regulates broadcasting on television or radio of election advertisement and programmes during a campaign. The only exemptions are where it is broadcast as part of a news or current affairs programme or if it was comment.

In the Watson case, the High Court had said that even if the song was an 'election broadcast' it would fall within an exemption in the law providing for comment. Before that decision came out, the Electoral Commission had referred to the case in its review of the 2014 election and asked the Govenment to consider including a specific exemption for satirical or humourous material.