Online politics at election time: more space, clearer boundaries

“They are tightening up,” a member of an opposition party said to me. “It’s a step backwards.”

“How so?” I asked.

“They’ve made it a seizable offence.”

He was referring to the changes in the Parliamentary Elections Act, particularly those dealing with political discussions and “election advertising” on the internet. These were debated in Parliament earlier this year and passed, but as far as I can see, the amendments have not been gazetted perhaps because the President has not yet given his assent.

I’ve been waiting for the amended legislation to be put up on the web by the Attorney-General’s Chambers before commenting on them, but I don’t think I can wait any longer. The electoral machinery seems to be picking up speed, with Mediacorp reporting Monday 7 June 2010 that the Elections Department has identified 1,400 possible locations for use as polling and counting stations.

I was surprised at the party member’s response. He evidently disagreed with me when I said that, in my opinion, the effect of the changes was one of opening up more space on the internet for electioneering and political discussions during election time.

Not that he was wrong, but he picked on one change, ignoring others. Indeed, contravention of the law over election advertising have been made seizable offences, which means a police officer can arrest you without need for a Warrant of Arrest. Does this mean that the police can bang on your door, demand entry into your home and seize you and your computer? I suspect so, but I am not sure. Could some lawyer advise on this? [Update 9 June 2010: I’ve spoken with a lawyer friend and he says my understanding is correct.]

However, if you look at the totality of the changes, the effect is one of setting clearer boundaries. The vague language that existed before has been cleaned up considerably, and through that cleaning up, it is much clearer now what is allowed and what is not. The forbidden areas are slightly fewer, but at the same time, if you cross those, the police can seize you.

Of course, opposition party members and many netizens who think that all bloggers and online commentators must oppose the government (after all, why else did God invent the internet?) are disappointed when I do not automatically see an evil conspiracy behind these amendments. That party member whom I was speaking with certainly thought I had gone all soft and abandoned the opposition cause, which was strange considering that I never knew I was part of the opposition cause.

Let me give you one example why I say the vagueness that existed before has been cleaned up. In the old legislation, the term “relevant persons” cropped up quite a bit. “Relevant persons” could not do this, could not do that, said the law. Who were these “relevant persons”? I had asked this question in 2006 before the previous general election. The definition as provided by the Parliamentary Elections Act (hereafter called “the Act”) was quite a mouthful, more or less defining it as those who were required by the Media Development Authority (MDA) to register as providers of political discussion over the internet.  Historically, hardly anybody was required to register, even as political opinions flourished online, but the MDA retained the power to demand registration. To complicate matters, the Act said that you were a “relevant person” even if you had not yet registered because the deadline for registration was not yet over. Frankly, it was messy, as catch-all language usually is.

How have the latest amendments improved things? They have dropped the term “relevant persons” altogether. Instead the law now only distinguishes between two classes of people at election time: In one class are political parties, candidates and their election agents and in the other, everybody else.

The rest of this essay will attempt to explain what is allowed and what is not, with reference to the second class of persons – the “everybody else”.

* * * * *

First, the term “election advertising” needs to be explained. The Act itself provides a definition:

“election advertising” means any poster, banner, notice, circular, handbill, illustration, article, advertisement or other material that can reasonably be regarded as intended —

(a) to promote or procure the electoral success at any election for one or more identifiable political parties, candidates or groups of candidates; or

(b) to otherwise enhance the standing of any such political parties, candidates or groups of candidates with the electorate in connection with any election,

and such material shall be election advertising even though it can reasonably be regarded as intended to achieve any other purpose as well and even though it does not expressly mention the name of any political party or candidate, but excludes any button, badge, pen, pencil, balloon and any other thing prescribed by the Minister by notification in the Gazette;

Clause (b) above is another catch-all phrase. If you are blogging or expressing an opinion in an online forum that makes one party or candidate attractive to voters, e.g. by praising his stand on issues, then you are engaging in election advertising. Even if you do not specify any political party or candidate, but merely urge others to vote against the government, e.g. in exclaiming “Support the opposition”, you are within the definition.

Oh, that’s terrible, you may say. This is totalitarianism, you may think. How dare the government stop us from expressing our opinion?

But hang on a minute. Before you get all livid, let me say this: the amendments to the Act allow you to engage in election advertising. That’s right. No need to get all worked up. You are free to do so. What restrictions there are are minor and very specific as to when they apply.

Before I get to the details however, there is one more thing that needs to be explained — the terminology about the various periods and days. I need to define these terms so you can better understand when certain things are allowed and when not.

The diagram on the left is a graphical way to define five terms, the most important three of which are “election period”, “eve of polling day” and “polling day”. Note carefully that “election period” includes the eve but excludes polling day.

The amended Section 78B of the Act says that on the eve and on polling day, you cannot publish (and this term includes webpublishing) any election advertising. Because it specifically mentions those two days, it means that during the days leading up to them when campaigning is in progress, you can publish election advertising. But will you be required to take down whatever you have earlier published? If you leave them on the web, will you be infringing the law on the eve and on polling day?

Section 78B subsection 2(d) makes it quite clear that you will not. It says the law does not apply to:

any election advertising that was lawfully published or displayed before the start of the eve of polling day at any election on what is commonly known as the Internet and that was not changed after its publication or display;

In other words, what you cannot do is to make new election advertising (including alterations to blogposts and online comments) on the eve and on polling day. You must freeze what you have previously published.

However, you can still discuss politics with your friends through email or online chat even on the eve and on polling day since subsection 2(c) makes another exception, saying that the law also does not apply to:

the telephonic or electronic transmission by an individual to another individual of the first-mentioned individual’s own political views, on a non-commercial basis;

Be careful though; note that the term “another individual” is in the singular. A mass email sent to more than one party on those two days could be a contravention of the law.

The Act disallows two more things:

1. You cannot publish any election surveys at any time during the election period and on polling day.

2. You cannot publish (a) any statement about how people have voted (known as “exit polls”), or (b) any forecast of election results, on polling day.

And that’s it. There are no other restrictions.