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Draft submission to Parliamentary inquiry

March 22nd, 2005

At the suggestion of Andrew Bartlett, I’m planning on putting in a submission to the Parliamentary Electoral Matters Committee, which is currently conducting an inquiry into the electoral laws, as it does after every election.

The topic is the possibility that the Government may change the Electoral Act to require websites containing electoral material to identify a person authorising its content.

Comments would be much appreciated.

Recent public comments have raised the possibility that Section 328 of the Electoral Act could be applied to Internet sites. The effect would be to criminalise anonymous political or social comment, to the extent that this is deemed to be ‘electoral material’. Particular concern was expressed in relation to the site http://www.johnhowardlies.com/ which listed purported false statements by the Prime Minister, Mr Howard.

More precisely, Section 328 requires that electoral advertising include the name and address of the person authorising the advertisement and, if applicable, the printer.

The reach of this section, as described in AEC Electoral Backgrounder #15 is very broad. It applies at all times and the scope under 4(1) includes ‘include any express or implicit reference to, or comment on: the election; the Government; the Opposition; a political party or candidate; or any issue submitted to, or otherwise before, the electors in connection with the election.’ As the AEC notes, ‘the term “electoral matter� has a very wide application.’

To give just a few examples, issues before the electors in recent elections have included taxation policy, the performance of government business enterprises, the state of the national economy, the future course of interest rights, the desirability of gay marriage or civil unions, and the appropriate policy in relation to drugs.

Thus, the restriction on freedom implied by Section 328 is substantial. Someone unwilling to identify themselves, for whatever reason, is effectively prohibited from publishing any advertisement on any topic of social or political interest.

Thus, the crucial question relates to the interpretation of the term ‘advertisement’. An “electoral advertisement� is defined in section 328(5) of the Electoral Act as any advertisement, handbill, pamphlet, poster or notice that contains electoral matter. It seems clear that the Act has never been deemed to apply to the editorial and news content of newspapers and magazines, including opinion columns, or to broadcasting of political opinion, as distinct from free or paid advertisements. In addition, although the law formerly required identification from writers of ‘Letters to the Editor’ and callers to talkback radio programs, this requirement was repealed in 2001.

On this basis, consistent application of the Electoral Act to Internet publications would appear to imply that it is permissible to publish electoral matter, without identifying details as part of ordinary editorial content, but that advertisements, presented as a discrete part of the page or site would require authorisation, whether they were paid for or published without charge.

Examining the johnhowardlies.com site, it can be seen that the majority of the pages consist of quotes from the Prime Minister and other ministers, under the heading “The Lie�, along with a claimed refutation, under the heading “The Fact�.

In addition, the page contains links to other sites. Some of these take the form of underlined text hyperlinks. Others appear as graphics, advertising the content of the sites concerned, which are mostly political.

For comparison, it may be useful to examine the site johnquiggin.com, written and maintained by the author of this submission. Although the author’s name and photograph are prominently displayed, the site does not include the address details required for political advertisements. In addition, the site publishes comments from readers, many of whom are anonymous. During the 2004 election campaign, numerous posts commented on the performance and policies of the parties, the likely outcome and so on, as well as on a variety of issues before the electorate. The site is generally updated daily, whether or not an election is in progress, and much of this material would be classed as ‘electoral matter’. In addition, there are numerous links to other sites.

There are some obvious definitional difficulties here. Nevertheless, applying analogies from print, it would seem reasonable to view the johnquiggin.com site as a kind of magazine, the comments as letters to the editor, and the links as analogous to references in a magazine or journal article.

If these analogies are accepted, it is hard to see that the same view should not be extended to johnhowardlies.com, and similar pro-government sites. While the style is more tabloid and graphic, the publication model is essentially similar. As regards the advertisements on the site, these are advertisements for other websites rather than political advertisements in the traditional sense of the term.

Suppose, alternatively, that these analogies are not accepted, and that Section 328 is taken to apply to a wide range of Internet publications. It is important then, to consider, whether the costs of such a restriction on speech are justified by benefits to the democratic process.

The AEC defends Section 328 as ‘ensuring that anonymity does not become a protective shield for irresponsible or defamatory statements.’ However, the basis for this claim seems weak.

The concept of ‘irresponsible statements’ is entirely subjective and has no legal basis. There are no legal penalties for the publication of irresponsible, or even knowingly false, statements in political advertising.

As regards defamation, High Court decisions have allowed broad latitude for political comment. More generally, anonymous publication does not provide a legal defence against defamation action. While anonymity may create difficulties for plaintiffs in such an action, it is hard to see why politically defamatory statements should be singled out.

Under current circumstances, the person authorising advertisements is typically a paid official of a political party, unknown to the general public. Such a person is unlikely to face significant adverse consequences even if the advertisement is of a kind to elicit a hostile reaction from political opponents. By contrast, private individuals commenting on public affairs might face a range of negative consequences from the publication of their name and address including, for example, adverse employment consequences.

It would seem sensible, and consistent with past practice, to take a narrow view of the operation of legislation that has the potential to substantially restrict speech. Section 328 should be confined to advertisements in the ordinary sense of the term. As regards the Internet, the Section should apply only to pop-up advertisements or discrete advertisements, and should exclude hyperlinks.

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  1. March 22nd, 2005 at 12:27 | #1

    Nailed in one. Thank you.

  2. March 22nd, 2005 at 12:39 | #2

    I agree with David, John. It gets right the heart of the matter.

  3. Sean Kellett
    March 22nd, 2005 at 12:47 | #3

    John, while I agree with your sentiment, I am wondering why you have restricted your comments to websites rather than the ‘Internet’ you describe in your last paragraph. What about Usenet and email? Didn’t crikey.com make use of anonymous emails for political stories? (I may be mistaken – I wasn’t on the list).

    A big issue here seems to be ownership. For example, who owns the “comments” that appear on your blog? Must all commentators provide credentials before contributing?

    A small criticism: what is the distinction between a paid-for hyperlink in a discrete part of the page and a ‘discrete advertisment’? I think your last sentence may need some more thought.

    But otherwise, for what its worth, an excellent contribution.

  4. March 22nd, 2005 at 13:28 | #4

    I agree with Sean’s comments about including Usenet and email. Also think of “Chat Rooms” and Internet Relay Chat which could be simply compared to a telephone conference call between friends.

  5. March 22nd, 2005 at 14:29 | #5

    Hear hear. I blog proudly under my real name, but there’d be no way I’d continue if I was forced to put my full address on it.

  6. March 22nd, 2005 at 15:04 | #6

    It’s your (suitably qualified) likening of some typical web elements to parts of traditional print media that I find most thought-provoking. Really the web is so porous and flexible that I just don’t believe that the same rules can be enforced as apply to media that exists in hard and or final copy. It is not terribly difficult to come up with a number of web elements that have no precedent at all in other media (eg trackbacks) and which the site owner can’t fully control.

  7. Razor
    March 22nd, 2005 at 16:03 | #7

    If political parties or their representatives are paying for advertising – that should be clearly stated. Otherwise, leave us alone!

    Backing you all the way on this one, JQ.

  8. March 22nd, 2005 at 16:51 | #8

    Agree with Razor that it seems obvious to apply all this to PAID Party advertising. Advertising on TV leading up to elections has never to my notice, contained the actual address of the voiceover person in the conclusion “spoken by (Equity Member) and authorised by The X Party”.

  9. March 22nd, 2005 at 16:56 | #9

    Some thought might be given to defining ‘identify’ – a Driver’s licence or passport number is ‘identification’ without need of advertising one’s domicile; one’s fingerprints? DNA formulae?
    I would think that a simple address, is possibly the least definite identification of all. Check the Roll of (dis)honour in the foyer next time you are at your accountant – there is hardly a company director in the country with an ‘own address’ on file at the ASIC website.

  10. Nabakov
    March 22nd, 2005 at 19:09 | #10

    I’d agree with razor and brownie about the paid party advertising point.

    If Howard and Erica are so concerned about this issue, then perhaps they should look at it from the other angle and strengthen disclosure provisions by political parties so we can see which bloggers have been receiving money from which parties – and that such bloggers be required to display who gave ‘em what.

    Basically, put the onus of disclosure on the parties not the bloggers.

    Of course it would be open to chicanery like the way politicsaving exit, once they realise trying to regulate political commentary on the internets will just end up like previous attempts to regulate other adult industries online.

    This comment authourised by N. Abakov on behalf of the Hearty Party.

  11. Nabakov
    March 22nd, 2005 at 19:13 | #11

    Sorry, previous comment got jangled by a spam filter encounter. It should read:

    I’d agree with razor and brownie about the paid party advertising point.

    If Howard and Erica are so concerned about this issue, then perhaps they should look at it from the other angle and strengthen disclosure provisions by political parties so we can see which bloggers have been receiving money from which parties – and that such bloggers be required to display who gave ‘em what.

    Basically, put the onus of disclosure on the parties not the bloggers.

    Of course it would be open to chicanery like the way political donations are – but at least it’d provide ‘em with a face-saving exit, once they realise trying to regulate political commentary on the internets will just end up like previous attempts to regulate other adult industries online.

    This comment authourised by N. Abakov on behalf of the Hearty Party.

  12. March 22nd, 2005 at 19:18 | #12

    A tactical suggestion: If you go for the high moral ground you might get nothing. There is a fair dinkum concern here, and I think it needs to be addressed in any submission to Parliament. Political parties have a genuine reason to be concerned with satirical sites that pretend to be real and which bad mouth one party or another. There may well be mug punters out there who would be gullible enough to believe that John Howard actually tells lies after they visit http://www.johnhowardlies.com. These people need the protection of the nanny state.

    I think you need a submission that accommodates the validity of this concern, but which still allows for anonymous comment, or at least address-less comment on blog posts.

  13. Roberto
    March 22nd, 2005 at 20:52 | #13

    I support full disclosure, and those blogs and website purporting to run political commentary and opinion should have the relevant authorisations applying.

    If not, it will become a joke. All sorts of conspiratorial claptrap, nonsense, rascist taunts, and other such crap will be therefore be ‘allowed’ to exist and potentially influence political debate (if not elections) simply because it sits in the web.

    The argument that the web is too “…porous and flexible” is bunkum!

  14. Nabakov
    March 22nd, 2005 at 22:11 | #14

    “I support full disclosure…”The argument that the web is too porous and flexibleâ€? is bunkum!”

    So you can provide conclusive and legally verifiable proof you are “Roberto”? And perhaps next time a traceable email address as well?

    For all we know you could not be the other Roberto.

    And do you like to be asked to prove yer not who yer pretending be?

  15. Nabakov
    March 22nd, 2005 at 22:20 | #15

    “If not, it will become a joke. All sorts of conspiratorial claptrap, nonsense, rascist taunts, and other such crap will be therefore be ‘allowed’ to exist and potentially influence political debate (if not elections) simply because it sits in the web.”

    Sorry Roberto, disregard my previous comment. I just reread yer original comment with my sense of humour switched back on.

  16. Tony Healy
    March 23rd, 2005 at 05:49 | #16

    I am not sure what the answer to this issue is, but the Australian experiences to date are small bickies. Consider the case where a set of blogs in South Dakota mounted an orchestrated attack on the writings of the state’s main newspaper, the Sioux Falls Argus Leader, as part of the successful campaign to unseat Senate Minority Leader Tom Daschle.

    Two of the bloggers were paid $35,000 by the campaign organisers for Daschle’s opponent, Sen John Thune.

    Led by law student Jason van Beek and University of South Dakota history professor Jon Lauck, the Thune bloggers tormented and rattled the Argus staff for the duration of the 2004 election, clearly influencing the Argus’ coverage.

    They also appear to have been a highly efficient vehicle for injecting classic no-fingerprints-attached opposition research on Daschle – most of it tidbits that perhaps might never have made it into the old print media – directly into the political bloodstream of South Dakota. What they did may turn out to be a “dark side of politics” model for campaign-blogger relations in 2005-06 – made all the more telling by the fact that the Thune bloggers relied heavily on now-discredited Jeff Gannon/James Guckert of Talon News for many of their stories. more

  17. Tony Healy
    March 23rd, 2005 at 05:53 | #17

    Here’s more reading. And the last para should have been:

    They also appear to have been a highly efficient vehicle for injecting classic no-fingerprints-attached opposition research on Daschle – most of it tidbits that perhaps might never have made it into the old print media – directly into the political bloodstream of South Dakota.

  18. March 23rd, 2005 at 06:44 | #18

    Tony, One difference with those that publish, socialise, comment etc online is that they assume their lives are public. I imagine some of the teen trainwreck blogs that are on blogspot fill some old timers with fear. But alot of people can have their lives traced through the web, irc logs, usenet, bbs’s etc. It will get to a point where a person’s life is so public that they are essentially immunised to that kind of scrutiny. Their lives are published online and their reactions to each issue in their lives are public.

    I suspect a lot of this is occurring because old media still deals in information scarcity. We dont need a gatekeeper for information when it is all accesible from our fingertips. The dead-tree media represents a single point of failure; because it is so concentrated. It is harder to influence an amorphous and diverse cloud of bloggers, publishers and researchers. Three journalists with the keys to the printing press are an easy target by comparison.

  19. roberto
    March 23rd, 2005 at 07:41 | #19

    Nabakov – this blog has my email address. I of course will not reveal my identity, unless asked to by the blog host (who has email address), and also because no one else is revealing their identities. On this I would prefer not to be the first, simply because receiving aggressive (threatening) emails is not fun!

    Have a good day :)

    ps: I always have my sense of humour switched on. It helps to heavily discount the nonsense put up as argument/debate.

  20. Tony Healy
    March 23rd, 2005 at 07:41 | #20

    Cameron, that’s true. But the point of the Dakota story is that some seemingly anonymous bloggers were in fact a partly organised and partly paid part of a political campaign.

    To fail to apply existing requirements for attribution to blogs is thus effectively to remove those current requirements from political campaigning. This starts to raise a number of questions. For a start, identified candidates and people who post using their real names are at a disadvantage, since they are subject to defamation laws. Anonymous posters by comparison can probably get away with dangerous and unfounded accusations.

    This is not an argument for any position, but just another factor to consider. I am reluctant to leap to quick solutions but, in dealing with situations such as this, I can’t see any reason not to require that blogs set up as part of a political campaign, and paid for out of campaign funds, should not be identified as such.

  21. March 23rd, 2005 at 07:57 | #21

    Tony, sorry there was another post after that first one but it got consumed by a db error and firefox’s back button. I linked to this WaPo article. The FEC panel in the US is only interested if money changes hands.

    In the post that got consumed I had a long and eloquent argument for publishers to the internet regulating themselves. Mainly because government is too self-interested, clumsy and blunt a hammer to be trusted to regulate free or political speech.

    Also I don’t believe the majority of us who do behave responsibly should be punished because some act unethically and irresponsibly.

  22. Tony Healy
    March 23rd, 2005 at 08:31 | #22

    Yes, I get very scared when I see the usual suspects trying to frame policy for new technology. Forcing registration for posting to sites, for example, is the sort of thing that appeals to people with weak or out-of-date understanding of new technology, such as politicians.

    It’s an interesting topic.

  23. Katz
    March 23rd, 2005 at 08:36 | #23

    It seems that the website johnhowardlies.com has provoked this intrusion of laws designed to regulate nineteenth-century communication into regulate twenty-first-century communication. As such, Section 328 of the Electoral Act is a dinosaur and should be killed off rather than extended.

    On the specific issue of johnhowardlies.com, it should be noticed that the site fulfils a new function that was much more difficult, if not impossible, under older technologies. This site consists of a convenient database for pronouncements by John Howard. The comments are therefore Howard’s. The editors of the site merely present and update collections of words which are not their own.

    Perhaps any update of the Electoral Act should take this new form of communication and repository of collective memory into account.

    For example, anyone quoted on such a site can demand the right to have included an announcement on the website that s/he authorises the use of his/her words.

    If the person quoted does not insist on that claim to authorship, then the managers of the site can legitimately append an announcement that the author of said statements does not claim authorship of them.

    In this way, other forms of web-based communication that replicate more closely traditional, print-based communication are not crippled simply because they share a medium of communication with a new, and clever, form of public discourse.

  24. March 23rd, 2005 at 15:17 | #24

    How are they going to go after those people who comment on electoral matters who are overseas? Are we going to see the government attempting to block oversea websites during election campaigns?

  25. March 24th, 2005 at 17:23 | #25

    Now the Govt has control of the Senate, if they want to deliberately do something in their own self-interest they can, and only public awareness and pressure will be able to help control them (which can still be aided by others in the Senate of course). I expect Parliamentary Inquries, and doing submissions to them will become even more important for this reason.

    But there is also a real risk in areas like this of unintended consequences, which is why it is important that people who ‘work’ in the relevant area provide information about the potential practical consequences and possible problems. This is particularly risky with newer technologies where understanding of how it works and is used can be fairly limited.

    I think there are legitimate accountability arguments for transparency in the funding and dissemination of partisan political material. The example Tony points to in comment 16 (and following) is one example that demonstrates this. However, if the price of this is strangling genuine political comment by others, then it is counter-productive.

    The existing provision requiring authorisation also does help with getting some misleading material removed. Having an authorising person helps the Electoral Commission if they wish to act on a complaint. To use a recent example I was involved in, at the federal poll last year, the Green Party in Qld had a poster up at some polling booths which made a false attack on the Democrats. The fact that the poster was authorised meant that, when the Democrats complained about it, the Electoral Commission had a person they could contact to request removal of the posters and someone who could be held responsible if that action didn’t happen. (the posters were removed, although as is often the case it didn’t happen until well into the day when the majority of peple had already voted).

    Also, before people go too far overboard with extreme potential scenarios, it should be mentioned that the relevant part of the Electoral Act is not ruthlessly enforced at the moment – generally speaking the Electoral Commission tends to act only on complaints from others (usually political parties or candidates) rather than have a team of ‘election police’ out there checking ever item. I’m not sure the major parties would go to the trouble of chasing down every blogger on the Net demanding compliance with what is basically a tecnicality – it would run the risk of counter-productive negative publicity on a wider scale than most bloggers would reach. It is also likely to be very hard to enforce (impossible for people and probably ISPs based overseas).

  26. Albatross
    March 25th, 2005 at 08:55 | #26

    The current law is probably only honoured in the breach. I note that a piece of Liberal Party of Australia election material now lining the cat’s litter tray is authorised by Scott Morrison and gives his address as Level 9, 140 William Street, East Sydney which of course is not in fact his address but the address of his employer at the time, the Liberal Party of Australia, NSW Division.

    Number Crunching: Scott Morrison recently took up a $350 000 p.a. sinecure at Tourism Australia.

  27. March 25th, 2005 at 11:57 | #27

    In response to Albatross, it’s common practice for people to use a business address for authorisations – there’s certainly no requirement it be a home address (not that I’m defending some of the stuff Scott Morrison authorised, but as my earlier post shows, deliberately misleading material is put out by a wide range of political parties and players – something much more important than whether or not an item is properly authorised, and something which our Electoral Act is woefully incapable of dealing with).

    Of course, even if you leave aside the issue of whether a blogger (or anyone putting up a website) should have a right to anonymity, many bloggers don’t have the option of putting a business address either.

  28. March 26th, 2005 at 06:45 | #28

    John, I have been thinking about my own submission to this enquiry. My initial thoughts are here.

  29. March 26th, 2005 at 06:48 | #29

    In response to Albatross, it is worth noting that the address provisions in section 328 essentially require your employment address and not your home address. This is problematic for many hobbyist bloggres.

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