Social media on election day

From Reddit: Anyone seen anything from the Electoral Commission about what to do with social media on polling day?

The High Court made a ruling last year that might mean the guidance the Electoral Commission has previously given regarding social media use during the election period and on polling day is no longer accurate. Has anyone seen any updated advice on this?

I can’t see a High Court decision from 2016 that seem address this. Perhaps related but on a different matter is THE ELECTORAL COMMISSION v WATSON & ANOR [2016] NZCA 512 [20 October 2016] but that looks at what constitutes an election advertisement (it related to the ‘Planet Key’ song).

Is anyone aware of anything else?

In 2014, the Electoral Commission put out guidance saying that if you posted something online before election day, and you’re not doing anything to make it reappear on polling day, you’re not going to be considered to be electioneering on polling day. For anyone not aware, it’s illegal under the Electoral Act to electioneer on polling day, with the exception of wearing a rosette.

Anyway following the 2014 Election, Winston Peters made complaints to the Electoral Commission about certain content online that he considered to be in breach of the Electoral Act. The Commission decided not to refer the content to the Police as they did not consider it had been published on polling day, as per the guidance I mentioned before. Winston Peters undertook a judicial review of that decision, and last year the High Court held that the decision of the Commission was based on an incorrect interpretation of the law.

I’m guessing the guidance will therefore be, if you’ve discussed the election on social media, you should deactivate your account before midnight on polling day until the polls close, but I’ve not seen anything to that end by the Commission. Have I missed that, or is this actually something the Electoral Commission hasn’t covered?

The Electoral Commission has two advisories on the use of social media on election day.

USE OF SOCIAL MEDIA

Social media on election day

There are additional restrictions on election day.  On election day (from midnight on 22 September until 7pm on 23 September) there is a general prohibition of the publication of any statement that is likely to influence which candidate or party a person should, or should not, vote for.

Election advertising does not have to be removed from social media so long as:

  • the material was published before election day
  • the material is only made available to people who voluntarily access it, and
  • no advertisements promoting the page or site are published on election day.

If you use social media, do not post messages on election day that could breach these rules.  The Commission recommends candidates and parties temporarily deactivate their Facebook campaign pages to avoid the risk of supporters committing an offence by posting on your page.  For other forms of social media where others can post comments the Commission recommends that where possible security settings are changed so that other people cannot post messages before 7pm on election day.

Posts on social media that are not connected in any way with the election can of course be posted on election day.

Last updated: 09 May 2017

And:

ELECTORAL COMMISSION AND SOCIAL MEDIA

Prior to Election Day

Prior to election day, there are a number of requirements that apply to election and referendum advertising.  These rules apply to election advertising in all media.
However there is a specific exemption in the legislation for any publication on the Internet, or other electronic medium, of personal political views by an individual who does not make or receive a payment in respect of the publication of those views.
Individuals expressing personal political views on their own site or through social media sites are covered by this exemption.

On Election Day

There are different rules that apply on election day.  For example, 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’s role

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.

27 May 2017

I will put reminders on Your NZ about what can and what can’t be said on election day in order to comply with the law.

With an increasing amount of early voting this law seems a bit out of date. Early votes can be influenced by what is posted on social media, but not election day votes.

 

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7 Comments

  1. Missy

     /  August 25, 2017

    Another factor in this that makes this law outdated is geography. For Example, if I were to post something on Facebook or twitter to try and influence people on how to vote does the Electoral Commission have any jurisdiction?

    I am resident in the UK, and would be posting on US hosted sites, so surely the NZ Electoral Commission would not have any jurisdiction over what I post in relation to the NZ election. Obviously I am not saying I would, but it is another issue around the law in NZ.

    Reply
    • Pete Kane

       /  August 25, 2017

      Safest route is a close from midnight to 7 pm. Not worth the stress Editor.

      Reply
      • I haven’t had any problems in the past.

        We have had malicious intent in the past but that is generally easily dealt with.

        I’ll keep going with posts unrelated to the election. Trump will likely have said something stupid again, the climate will still be changing, and I might manage to find proof that God exists.

        Reply
        • Pete Kane

           /  August 25, 2017

          Well Trump is certainly is obliging (and reliable) re political forums.

          Reply
  2. robertguyton

     /  August 25, 2017

    At the last election, two rugby celebrities tweeted their fan network of their having voted National. Is that the sort of cunning rule-breaking you are covering here, Pete?

    Reply
  3. Kitty Catkin

     /  August 25, 2017

    When in doubt, don’t. I see no point in anyone pushing this one.

    Reply
  1. Social media on election day — Your NZ – NZ Conservative Coalition

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