Is the Hollow Men play illegal?

Stephen Franks has raised the issue of the Hollow Men play with the Commission. Nicky Hager was a strong supporter of the Electoral Finance Act, so it would be very ironic if the play based on his book was shut down as it is now an illegal election advertisement.

Let look at how it may be an advertisement. First take s5(1)(a)(i)

election advertisement means any form of words or graphics, or both, that can reasonably be regarded as … encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties…

Now a play is a form of words and The Hollow Men certainly encourages people not to vote for National. So is it exempt? What are the seven exemptions in s5(2)?

  1. agency advertisements
  2. editorial material in a periodical
  3. or programmes
  4. media Internet sites
  5. books
  6. documents published to members or shareholders
  7. blogs

So we have established that The Hollow Men play is almost certainly an election advertisement, and is not covered by any exemption. Next we ask is it “published” as defined in s4(1)?

publish, in relation to an advertisement, means to—

(a) print or insert in a periodical published or distributed in New Zealand; or
(b) issue, hand out, or display, to the public; or
(c) send to any member of the public by any means; or
(d) deliver to any member of the public, or leave at a place owned or occupied by a member of the public; or
(e) broadcast (for example, in the form of a or broadcast); or
(f) include in a film or video displayed to the public; or
(g) disseminate to the public by means of the Internet or any other electronic medium; or
(h) store electronically in a way that is accessible to the public

We can rule out (a), (c), (g) and (h). But Stephen makes the case that a play can be considered to be displayed to the public, or delivered to any member of the public. Also if a PA system was used it could be caught up by (e) and if a promo clip for the play is put on You Tube, then that may breach (f).

One can’t say for sure that the Hollow Men play would or would not be illegal, but it shows how far reaching the law is.  It may escape the law only because it does not fit the definition of publish, even though it is defined as an election advertisement.

Now Nicky Hager should be very grateful to the anti-EFA that we kicked up such a fuss about the select committee version of the EFB, that they deleted this clause in the definition for publish:

(i) bring to the notice of the public in any other manner

This was the infamous megaphone clause which the select committee added in. It got removed after protests.  But if that clause had remained in, then the case for The Hollow Men play being closed down by the Finance Act would have been greatly strengthened.

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