Promoting public media as a charitable purpose

A Landmark Decision for Charitable Status

The New Zealand Court of Appeal’s decision in Better Public Media Trust v. Attorney-General[1]marked a significant milestone in the advancement of charity law in New Zealand and other common law countries, particularly concerning the role of advocacy in charitable pursuits. The case centered on whether a trust dedicated to advocating for public media could be considered a charitable organization.

Background

The Better Public Media Trust (the “Trust”) was established to promote the role of public media in New Zealand. The Trust’s primary activities involved advocating for increased funding, improved operating conditions, and wider distribution platforms for public media providers. It also aimed to educate the public about the importance of public media and represent the interests of media audiences.

New Zealand’s Charities Registration Board initially denied the Trust’s application for charitable status, arguing that its primary focus was on advocacy, which is generally not considered to be a charitable purpose. This decision was upheld by the High Court of New Zealand.

The Court of Appeal’s Decision

The Court of Appeal of New Zealand (the “Court”) overturned the lower court’s decision, finding that the Trust’s purpose of advocating for public media was indeed charitable under the fourth head of charity, “other purposes beneficial to the community.” The Court accepted that “public media could be defined as media that accord with public media principles”; these principles include:

• serving everybody’s interests as citizens [and] not only as consumers;
• high quality content across a full range of genres (including local productions) that inform, educate and entertain us;
• universal accessibility across different platforms and free to all New Zealanders;
• catering to the interest of minorities as well as the majority, including Māori, regions, and young people;
• being independent of government and insulated from commercial pressures; and
• recognising the robust fourth estate’s role to hold those in power to account.

The Court emphasized the following key points in its decision:

• Ancillary Non-Charitable Purposes: The Court recognized that while the Trust’s advocacy work was prominent, it was not its sole purpose. The Trust also aimed to educate the public about public media, which is undoubtedly a charitable objective.
• Charitable and Political Purposes Are Not Mutually Exclusive: The Court clarified that advocacy, even if it involves political elements, can still be considered charitable if it serves a broader public benefit.
• Advancement of Education: The Trust’s efforts to educate the public about the importance of public media also falls within the charitable head of « advancement of education. »

Implications of the Decision

The Better Public Media Trust case has far-reaching implications for the charitable sector in New Zealand and beyond. It provides greater clarity on the role of advocacy in charitable work, recognizing that advocacy can be a legitimate means of achieving charitable ends. This decision is likely to encourage organizations engaged in similar advocacy work to seek charitable status, potentially leading to increased support and resources for their activities.

Moreover, the case underscores the importance of public media in a democratic society. By granting charitable status to an organization dedicated to promoting public media, the court has affirmed the value of independent and accessible media for informing and engaging citizens.

Can Promoting Public Media Be a Charitable Purpose in Canada?

While the New Zealand case of Better Public Media Trust v. Attorney-General has set a precedent for recognizing the promotion of public media as a charitable purpose, the Canadian legal landscape presents a more complex picture.

The Charitable Purpose Doctrine in Canada

In Canada, to qualify for charitable status, an organization must exclusively pursue one or more of the following purposes:

• relief of poverty;
• advancement of education;
• advancement of religion; or
• other purposes beneficial to the community.

While the « other purposes beneficial to the community » category offers some flexibility, this category is subject to strict interpretation by the Canada Revenue Agency (the “CRA”).

Advocacy and Charitable Status

A key challenge for Canadian organizations that promote public media is that advocacy often intersects with political activity, which is generally not considered to be a charitable purpose. However, if the advocacy is directly linked to a charitable purpose and is not primarily political, it may be permissible. In particular, Canadian charities are prohibited from devoting any resources to the direct or indirect support of, or opposition to, any political party or candidate for public office.

Given these complexities, organizations seeking to promote public media in Canada as a charitable purpose might consider the following approaches:

1. Focus on Education and Public Awareness: By emphasizing the educational role of public media in informing the public, promoting civic engagement, and fostering critical thinking, an organization may be able to align its activities with an “advancement of education” purpose. However, we have to keep in mind that the CRA has somewhat restrictive views on the “advancement of education” purpose.[2]
2. Community Benefit: Demonstrating how public media benefits specific communities, such as Indigenous communities or marginalized groups, could strengthen the argument for charitable status under the « other purposes beneficial to the community » category.
3. Media Literacy: Promoting media literacy and critical media consumption habits could also qualify as a charitable purpose under the advancement of education category.
4. Research and Analysis: Conducting research and analysis on the impact of public media on society can support the educational and community benefit arguments.

Navigating the Regulatory Landscape

Given the evolving nature of charitable law and the specific requirements of the CRA, organizations seeking charitable status for public media promotion should carefully review the relevant guidelines and seek legal advice.

Conclusion

While the promotion of public media in Canada presents challenges in terms of charitable status, there is potential for organizations to qualify if they can effectively demonstrate a clear charitable purpose and avoid excessive political activity. By carefully aligning their activities with recognized charitable purposes and providing compelling evidence of public benefit, organizations can increase their chances of obtaining charitable status and securing the associated tax benefits and public trust.

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[1] [2023] NZCA  553 (NZLII)

[2] CRA Guidance: CG-030: Advancement of education and charitable registration, November 27, 2020.