Election day "comments" on social media referred to police

by Toby Manhire / 01 March, 2012
After receiving complaints, the Electoral Commission has referred five election-day comments to the police for investigation. Is the Electoral Act up to it?

The Electoral Commission has backed its bark with bite on the vexed matter of social media and election day.

In a news release, issued at the start of the week, it announces it has referred five “comments posted by members of the public on social media on election day” to the police.

The referral follows a bunch of speculation (see here, here and here) about the extent to which the Electoral Act prohibitions related to election day would apply to the likes of Twitter and Facebook.

Here’s the Commission’s announcement in full:

On 27 February 2012, the Electoral Commission referred the following matters to Police:

1. Mediaworks for the broadcast of The Jono Project on TV3 on 4 November 2011, which in the Electoral Commission’s view was an election programme, contrary to section 70 of the Broadcasting Act 1989.

2. Five comments posted by members of the public on social media on election day, which in the Electoral Commission’s view were advising or intended or likely to influence any elector as to the candidate or party or referendum option for whom the elector should or should not vote, contrary to section 197(1)(g)(i) of the Electoral Act 1993.

As these matters are now with the Police, the Electoral Commission will not be commenting further.

I asked the Electoral Commission if they could identify the comments referred – in the same way as they identify, say, The Jono Project in the very same release.

Their response:

The only information in the Jono Project referral that we have not provided for the social media comment referrals is who we have referred. We have not released this information to allow Police to determine who was responsible for the comments.

Which could mean that some doubt surrounds the authors of the “comments” – were they, say, pseudonymous?

A Commission spokesperson has subsequently told me that the referrals came to their attention as a result of complaints.

The police have not responded to a request (made yesterday) for comment; I’ll update here should I hear anything back.

I did a bit of searching on Twitter on election day, those four long months ago, and while there was hardly an avalanche of apparent breaches of the Electoral Act rules, there were plenty more than five.

What, I wonder, were the motivations of the complainants?

It will be interesting to see whether or not the Police determine that the referred comments are worthy of prosecution.

Either way, it underlines, to my mind, the current law’s increasing struggle to cope with the changing shape of media. While I rather like the spirit of the election day blackout, it might be better framed as a convention, rather than a legal ban.
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