The Electoral commission acted wrongly in banning a video lampooning prime minster John Key in the lead up to that year's election, according to the Court of Appeal decision released today.

Planet Key was a satirical song and video that but for the intervention of the Electoral Commission would have been broadcast in the lead up to the 2014 general election.

The Commission banned its airplay in an action criticised as overreaching by interfering in the expression of personal political views.

'Planet Key itself is now of historical interest, but the legal controversy that it engendered is not; the controversy concerns the meaning of the legislation that the Commission administers and it has significant implications for future elections,” says the Justice.

He dismissed the electoral commission's appeal of an earlier High court decision, ruling neither the song or its accompanying video were either an election advertisement or an election programme for the purposes of section 3A of the Electoral Act and section 70 of the Broadcasting Act respectively.

Justice Miller says there is difficulty in overlaps between the Electoral Act and the Broadcasting Act and there is a need for reform.

The Electoral Act regulates the publication of election advertisements by anyone, but the definition of election advertisement doesn't fully protect political speech by non-participants in the electoral process.

People who are not parallel campaigners or representatives of vested interests, and who do not incur any or any significant expenses, may publish views that have the effect of encouraging voters to vote for, or not for, some party or candidate by reference to views adopted or not adopted.

'The exclusions for editorial content and personal political views published on the internet must be interpreted generously, as we have just explained, but they do not protect all political speech by non-participants. There is nothing this Court can do about it, apart from drawing the problem to Parliament's attention.”

The Commission's interpretation of the legislation limits the right to free expression more than is necessary to achieve the legislative purpose and more than can be justified in a free and democratic society, says the judgement.

The Act is aimed at a class of persons — participants in the electoral process — but it may well capture those who express personal political views via media other than the internet, and such over-inclusiveness is for Parliament to remedy, says the Justice.

'We make two points about the effect of the song and video. First, the Commission plainly thought the song, taken alone, had the effect required of an election advertisement, but it is not clear to us why the Commission formed that opinion.

'The lyrics denigrated Mr Key as uncaring and even venal, and they advised voters who cared about that not to vote for him, but the legislation requires more. As we see it, the lyrics did not encourage voters to vote by reference to views or positions adopted by Mr Key. Any such effect was surely too indirect to count.

'Although the video did directly evoke political issues of the day, both it and the song clearly had entertainment value. That, presumably, is why the song was offered for sale on iTunes. That being so, voters can be expected to realise that the song and video may not aspire to factual accuracy, meaning that it is open to debate whether the song and video would have the effect of persuading voters to vote against the National Party.”

He says the Electoral Commission was wrong to assert that the song and video had to be the work of a single individual. What mattered was that the views expressed were personal in nature.

On 18 September 2012 the Prime Minister responded to a Parliamentary question from Metiria Turei, the Green Party co-leader, about what life would be like on 'Planet Key”. He responded:

'I do not know so much about ‘Planet Key', but my expectations are it would be a lovely place to live, it would be beautifully governed, golf courses would be plentiful, people would have plenty of holidays to enjoy their time, and what a wonderful place it would be.”

Professional songwriter and musician Darren Watson with what Justice Miller describes as: 'A bleak view of New Zealand politics, which he thinks tainted by greed, obfuscation and wilful dishonesty.”

The Prime Minister's answer inspired him to write the song Planet Key to express those views in the lead up to the 2014 general election.

The second respondent, Jeremy Jones, is a designer who offered to make a video to accompany the song, which he saw as a light hearted way to express his own political views.

Costs are awarded to the respondents Darren Watson and Jeremy Jones.