Crown Law wrestles with electoral law fallout

Electoral Commission awaits definition of a 'blog'

Whether political debate on online forums other than blogs is allowed under the controversial new election law which restricts public political discussion in an election year — like this year — is proving a moot point.

The Electoral Commission was last week awaiting legal opinion on which online expressions of personal political opinion are exempted from the restrictions contained in the new Electoral Finance Act. The Act passed on December 18, 2007, amid heated parliamentary debate.

Under the Act, any election advertisement in the regulated period, which runs from the beginning of an election year until the day before polling day, has to carry the name and address of the “promoter” of the advertisement. Spending by such promoters is also restricted during this period.

But critics say exactly what constitutes an election advertisement is too vaguely defined under the Act.

The definition specifically excludes “the publication by an individual, on a non-commercial basis, on the internet of his or her personal political views (being the kind of publication commonly known as a blog).”

But commentators have asked whether other online forums, which strictly speaking aren’t blogs, are similarly restricted when it comes to expressions of opinion. Examples here include postings on Usenet newsgroups or on multi-recipient email. More than one commentator on such forums has formally put this question to the Electoral Commission.

An Electoral Commission spokesman says a Crown Law opinion is being sought on the question as it relates to “the full gamut” of online forums other than blogs. A decision will be made “shortly”, he says.

During parliamentary debate on the legislation last year, a number of MPs also commented that definitions seemed vague. They said the boundaries between legal and illegal activities seemed arbitrary.

“Writing a letter to an editor under a pen-name and writing an anonymous blog posting will be legal, but writing an anonymous post on an internet chat board will be illegal,” commented ACT’s Heather Roy, during the Second Reading of the Bill, in November.

“It is absolutely bizarre. There are many examples where two things that are traditionally thought of as [being] exactly the same, and the same in their effect, will be in the position now of one being legal and the other being illegal,” she said.

“A television news channel will be able to publish a video of a campaign speech on its website, but it will be illegal for a member of the public to post exactly the same video on YouTube without publishing the person’s name and address.”

Well-known blogger Bruce Simpson is already testing the limits of the new law via his Aardvark site, by including a promotion for Prime Minister Helen Clark as candidate for Auckland’s Mount Albert constituency.

He will exceed the $4,000 limit for “third party” advertising by early next month and so will then be contravening the law. He challenges the authorities to prosecute him.

Fellow blogger David Farrar says Simpson is already contravening the law by omitting his name and address from the advertisement, and by failing to seek the permission of Clark or her agent for an advertisement relating specifically to her candidacy.

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