An election day Twitterstorm looms

by Toby Manhire / 27 May, 2011
Forget the campaigning stuff, that's easy. It's the threat of a criminal "influencing" tweet that could rouse the dragon
In a post headed “Why tweeting on election day could be a crime”, published here a month ago, I suggested that the New Zealand electoral commission must “know something of the risks of stirring the Twittery dragon”.

The chief electoral officer Robert Peden was asked about the dragon – or sort of – at an Electoral Commission media briefing held to kick off the enrolment campaign yeseterday. Asked about social media and laws that curb electoral activity on election day he said this, according to the New Zealand Herald:

People should be aware that if they tweeted on election day to influence how somebody votes they will be breaching the [Electoral] Act and the [Electoral] Commission will take action ... For a long time, the law has allowed for campaign-free election days, and my sense is that New Zealanders like it that way and so it's not really in people's interest to do things like tweet and breach the rules.


Peden’s emphasis is on “campaigning” here, as it is in reports in both the Herald and Dominion Post accounts this morning. But, as far as I can tell, the campaigning stuff is straightforward – if anyone is attached to a party or candidate, then of course they should be collared. Much more interesting, and potentially problematic, are the parts of the act that cover media – or “publishing” – activity.

Again, here’s section 197 of the Electoral Act 1993:

Every person commits an offence and shall be liable on summary conviction to a fine not exceeding $20,000 who … at any time on polling day before the close of the poll exhibits in or in view of any public place, or publishes, or distributes, or broadcasts … any statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote; or … any statement advising or intended or likely to influence any elector to abstain from voting.


Let’s imagine a tweet along the lines of Yay Key, boo Goff – letz go Natonalz LOL :), tapped out on election day by @BazBoom_1987. Will that be a breach of the act, and land Mr Boom in trouble? Take the hypothesis one step further: @BazBoom's 72 followers all live in an electorate that was won by a tiny margin. Game on.

I’ve just been on the phone to the Electoral Commission; they can't give me a clear answer to that, for they’re still looking into how they will manage social media matters (though they do say that they would only investigate where breaches are "brought to our attention"). They are aware, they stress, that there remain outstanding issues to be resolved.

We can expect further clarification, I’m led to believe, as election day draws closer. But if Peden’s remarks above are a sign of things to come, a twitterstorm could be on the horizon. “People should be aware that if they tweeted on election day to influence how somebody votes they will be breaching the Act and the Commission will take action,” he says. Doesn’t look good for you there, @BazBoom, does it?

Given what happened in Canada in similar (actually, in some ways less draconian) circumstances, it will be interesting, to put it mildly, to see how the dragon responds.

UPDATE Fri May 27 5pm A media advisory from the Electoral Commission has just landed in my inbox. It appears to take a hard line, though is hardly full and final. Judge for yourself:

... It is an offence, at any time on election day before the close of the poll at 7pm, to publish any statement 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.


These rules reflect the long-standing feature of New Zealand electoral law that voters should be free from interference and influence on election day.  They are the reason, for example, that all election billboards have to be removed before polling day.


These rules apply to statements published or broadcast in all media including social media.  The Electoral Act specifically addresses the application of these rules to websites.


Election material does not have to be removed from a website on polling day, so long as the material on the site is only made available to people who voluntarily access it.  New material must not be posted and advertisements promoting the website must not be published on polling day.


The Electoral Commission’s advice to people using social media is not to post messages on election day that could breach these rules. The prohibition of advertising on polling day enjoys strong public support, and significant breaches are likely to generate complaints.


The Electoral Commission does not proactively monitor all the circumstances and mediums in which breaches of the electoral law might occur.  However, where the Electoral Commission becomes aware of a breach through the media or receives a complaint the Commission will look into the incident and where appropriate refer to the matter to the Police.


During election year, the Commission does carry out standard media monitoring, both mainstream and online, to ensure accuracy of information and to correct misunderstandings where possible.

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