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2020 Legislative Council election Facebook breach of section 196 of the Electoral Act 2004

At the 2020 Legislative Council elections, a possible breach of section 196 of the Act in a single Facebook post (where a candidate was mentioned without their consent) was brought to the attention of the Electoral Commissioner. After investigating the matter and referring it to the Director of Public Prosecutions, the Director advised there was no reasonable prospect of conviction and that he would not prosecute the matter.

In light of the process arising from this complaint and the advice received on this matter, the Electoral Commissioner noted the following:

• This offence is largely a continuation/carry over of a very similar section in the preceding electoral act — section 243(4), Electoral Act 1985. The Act became law before the development of social media and the use of social media for electoral and election discourse.
• While the definition of “publish” in the Act includes by publication on the internet, section 196(1) was written to primarily refer to physical actions (print, publish and distribute) with physical items (advertisement, “how to vote” card, handbill pamphlet, poster or notice).
• The Act does not establish any similar restrictions on the use of a candidate’s name in a political speech, personal conversation or on talk back radio. The relatively recent rise of social media appears to fall between the historical discourse of delivered material and verbal social/personal communication.
• It may be arguable the Facebook post is political discourse that could be considered closer to a radio interview or public debate than a handbill, “how to vote” card or notice.
• A breach of section 196 is a criminal offence which has severe consequences: that is a “fine not exceeding 300 penalty units or imprisonment for a term not exceeding 12 months, or both.”
• A wide interpretation of the term notice to include such comments could be seen as seriously infringing freedom of speech and political communications.