Online media such as social networking, effectively unheard of less than a decade ago, now permeates many people's everyday lives. Social media is not just used by individuals for keeping in touch but has become a powerful tool to assist businesses to engage with customers, and has even been used as a part of business continuity plans. However, along with the benefits of the explosion in access to online media come challenges for laws designed for the analogue world. One example of these challenges is the 'electioneering' restrictions in the Electoral Act 1993 (Electoral Act). With the national parliamentary election date of 26 November 2011 looming, this article explores the application of the Electoral Act to users of social networking sites such as Facebook and Twitter.
Pre-polling Day Publications
The Electoral Act governs, among other things, how political parties and individuals may advertise in relation to elections in New Zealand. One key provision is that different rules apply for campaign material published before polling day and for material published on polling day itself. The restrictions before polling day only relate to when a person publishes an "Election Advertisement".
"Election Advertisement" is defined in the Electoral Act as an advertisement (in any medium) that may be regarded as encouraging voters to vote (or not to vote) for a particular candidate or political party.
A publisher of an Election Advertisement must meet certain conditions set out in the Electoral Act. These conditions include:
- the promoter of the advertisement (the person who initiates the publication of the advertisement) must be either a party secretary, a candidate, a registered promoter, or an unregistered promoter who does not spend more than $12,000 (incl GST) on advertisements;
- the advertisement itself must include a "promoter statement", stating the name and address of the promoter;
- if the advertisement encourages voters to vote for a particular candidate, the advertisement must be authorised by that candidate in writing; and
- if the advertisement encourages voters to vote for a particular party, the advertisement must be authorised in writing by the party secretary.
Certain publications, even if they are intended to influence voters, will not be considered to be an Election Advertisement and will therefore not be required to fulfil the conditions listed above. Some of the exclusions from an Election Advertisement are:
- the editorial content of a magazine, television programme, radio programme, or news media internet site; and
- the publication on the internet of personal political views, provided the author has not received payment for expressing their views.
The latter exception means that, before polling day, statements made on blogs, on online forums and social networking sites such as Facebook and Twitter will be exempt from the Election Advertisement restrictions under the Electoral Act (provided the author has not received payment for expressing the author's views).
Polling Day Publications
On the day of the election, it is effectively unlawful under the Electoral Act to interfere with a voter with the intention of influencing his or her vote. This includes publishing, broadcasting, or distributing statements that advise/influence a voter as to which candidate to vote for, distributing any party emblem or flag, taking part in any demonstration that relates to the election, or making any kind of public address referencing the election or candidates.
This prohibition is very wide and not only captures publications on blogs and online forums but also the personal opinions of individuals made on social networking sites, including a Facebook status update or a tweet, about a candidate or party. A simple "vote party x" or "support candidate y" status update or tweet will technically breach the law.
So, under the current legislation, social media users need to ensure that they do not publish electioneering statements from 12 am until 7 pm on 26 November 2011. The punishment for doing so is a fine of up to $20,000. While this may seem excessive in the context of an individual, the Chief Electoral Officer Robert Peden has been reported in various media publications as saying that the commission will monitor social media websites and take action. It is also likely that those who are visible public figures will be subject to greater scrutiny (and this includes businesses).
There is a limited exception to liability for the prohibition on publications for online statements on polling day. The exception applies only if the statement was loaded on the website before polling day, the author does not make the statement available to people other than those who voluntarily access the website, and the author does not distribute any material advertising or promoting the relevant website on the day of the election. Accordingly, individuals and businesses should also be careful not to refer back to previously published articles about the election.
Social media websites blur the lines around publishing electioneering statements. For example, while a retweet would seem to be publishing a statement, it is not so clear whether "liking" a Facebook status update published before polling day will fall foul of the Electoral Act.
The Chief Electoral Officer has said that he senses that New Zealanders like campaign-free election days. However, the interplay between social media websites and the Electoral Act discussed in this article could fall under the scope of the Law Commission's "Review of Regulatory Gaps and the New Media". The focus on this review is new and emerging forms of news media - sometimes referred to as the “new media”. Part of that review will consider whether existing criminal and civil remedies are effective in the new media environment, and if not whether alternative remedies are available. The Law Commission review is led by Professor John Burrows QC and the Law Commission expects to have its preliminary analysis ready for public consultation by November 2011.