The end of the blogs?

The long answer ...

The following comments appeared in the Chronicle last week in relation to blogs commenting on the Toowoomba City Council's controversial recycled sewage project:

"A spokeswoman for Local Government Minister Desley Boyle said because Toowoomba’s poll would be run under the provisions of the Local Government Act, all election material would be subject to it. That included advertisements, pamphlets, handbills and information published on the Internet, which legally would have to provide contact details authorising them.

“If these sites remained online within the election period and contained opinions designed to influence the outcome of the poll, they would be considered election materials and would need to include a contact name and address,” the spokeswoman said.

The accuracy of these comments regarding the need for name and address details to be attached to blogs is questionable.

Each blog will need to form its own view on any legal restrictions but here's one view:

1. Local Government Act 1993

The issue of "election matter" is dealt with in section 392 of the Local Government Act 1993 (as amended) which provides:

(1) A person must not, during the election period for an election:

(a) print, publish, distribute or broadcast; or

(b) permit or authorise someone else to print, publish, distribute or broadcast;

any advertisement, handbill, pamphlet or notice containing election matter unless there appears, or is stated, at its end the particulars required by subsection (2).

(2) The particulars are the name and address, other than a post office box or facility, of the person who authorised the advertisement, handbill, pamphlet or notice.

Section 392 applies to a referendum by virtue of section 136 of the Local Government Act which provides for a number of provisions relating to elections to apply to a referendum.

Section 392 does not however appear to deal with the issue of material published on the internet (see below).

This point is, for example, covered by the Electoral Act.

2. Electoral Act 1992

Section 161 of the Electoral Act 1992 (as amended) provides that the author of "election matter" must be named.

Subsection (1) provides that a person must not, during the "election period" for an "election" ... print, publish, distribute or broadcast ... any advertisement, handbill, pamphlet or notice containing "election matter" unless there appears or is stated at the end ... the name and address (other than a post office box) of the person who authorised the advertisement, handbill, pamphlet or notice.

Subsection (5) provides that the term "publish" includes publish on the internet, even if the internet site on which the publication is made is located outside Queensland.

But what is “election matter” under the Electoral Act?

Under section 3, "election matter" means anything able to or intended to influence an elector in relation to voting at an election or affect the result of an election.

So how is an "election" defined?

Section 3 of the Electoral Act defines "election" as meaning an election of a member or members of the Legislative Assembly.

But does this include a referendum?

Section 3 of the Electoral Act does not define "election" to include a "referendum" which term is separately defined as "a referendum under the Referendums Act 1997".

This means that the internet provision under section 161 of the Electoral Act would not apply to a referendum.

So let’s look at the Referendums Act.

3. Referendums Act 1997

Section 74(1) of the Referendums Act 1997 (as amended) provides that a person must not, during a referendum period, print, publish, distribute or broadcast anything that is intended or likely to mislead an elector about the way of voting at the referendum.

Under section 74(3), the term “publish” includes publish on the internet, even if the internet site on which the publication is made is located outside Queensland.

Section 72 of the Referendums Act, which deals with the naming of the author of referendum matter, is similar to section 392 of the Local Government Act and also does not include the reference to the term “publish” extending to publishing on the internet.

So there is no internet authorisation requirement under the Referendums Act.

Where did the internet provision come from?

4. Electoral and Other Acts Amendment Act 2002

The internet provision was enacted as part of the Electoral and Other Acts Amendment Act 2002.

This Act extended the definition of “publish” to include the internet in sections 161 and 163 of the Electoral Act as well as section 74 of the Referendums Act but, curiously, not in either section 72 of the Referendums Act or section 392 of the Local Government Act.

There was no real discussion of the internet authorisation provision during the debate on the Bill in State parliament at the relevant sittings in March and April 2002.

The internet authorisation amendment was implemented following Recommendation 8 of the Legal, Constitutional and Administrative Review Committee Report No. 23, May 2000.

Recommendation 8 stated that “the committee recommends that the Attorney-General – as the minister responsible for the Electoral Act (Qld) 1992 – amend that Act to include a definition of “publish” for the purposes of s. 163(2) of the [Electoral] Act to make it clear that the term includes the act of disseminating material on the internet that is accessible to persons in Queensland”.

The Committee (current Local Government Minister Desley Boyle was a member) accepted the advice of the Crown Solicitor (endorsed by the electoral commissioner) which included:

“I am of the opinion that political advertising material accessible on the internet which is capable of misleading voters, is material which has been published, and is therefore capable of being caught by s. 163(2) of the Act.”

[Note – no reference to internet commentary – only to “political advertising material”.]

The Committee also considered whether the definition of “publish” as recommended by the Crown Solicitor should apply to all provisions of the Electoral Act where that term is used. The committee believed “that the electoral commissioner should consider obtaining advice from the Crown Solicitor regarding the impact of the internet on the possible application of the other offence provisions in the Electoral Act. The committee would be willing to consider any suggestions for legislative reform as a result of that advice.”

So there is a gap. There is an internet authorisation requirement for elections under the Electoral Act but no equivalent provision for a referendum under the Referendums Act or the provisions of the Local Government Act which are deemed to apply to a referendum.

The fact that the State government subsequently amended section 74 of the Referendums Act to extend the misleading material provision to include material on the internet but did not amend the authorisation requirement under section 72 of the Referendums Act indicates that they never intended the internet authorisation provision to apply to a referendum.

Or maybe they just stuffed it up.

5. Election matter

Even if the internet provisions applied under the Local Government Act or the Referendums Act, would commentary on a blog fall within the meaning of “election matter”?

The answer depends on whether blog commentary would be considered “election matter” contained in “any advertisement, handbill, pamphlet or notice”.

There does not appear to be any judicial interpretation of the term “election matter”, however, to the man in the street, the answer is probably not. The terms “advertisement, handbill, pamphlet and notice” generally indicate some form of advertising or promotional material, rather than commentary.

What’s the Federal government’s view?

6. Federal Parliament Report – September 2005

In September 2005, Federal parliament released its Report of the Inquiry into the Conduct of the 2004 Federal Election and matters related thereto.

Chapter 12 dealt with modern election campaigns, including the use of the internet and the regulation of internet commentary. (The relevant provision of the Commonwealth Electoral Act is similar to its Qld counterpart, but not the same – it does not include the term “election matter”.)

Under Recommendation 44, the Committee recommended that the Australian Electoral Commission devise authorisation requirements for electoral advertisements, as distinct from general commentary, on the internet.

The Committee acknowledged that regulation of internet communications presents a number of practical problems, making the application of authorisation requirements to the internet cumbersome and perhaps unenforceable.

While a web administrator may wish to comply with the authorisation requirements, it would be very difficult to enforce a law requiring maintenance of an accurate record of all contributors of commentary to a website. It was feasible that authorisation requirements may not effectively control misleading commentary, but would impose onerous and, perhaps, impossible burdens on web administrators.

The Committee heard submissions which noted precedents for exempting internet commentary from authorisation requirements in the requirements for other media. There is no requirement for the identification of authors of “letters to the editor” in newspapers or journals. Similarly, there is no law requiring the identification of talkback radio callers during an election period. It would therefore be inconsistent to apply the authorisation requirements to internet commentary while maintaining exemptions for other forms of media.

The Committee also noted the US Federal Electoral Commission's stance on this issue – that disclosure requirements should not apply broadly to internet communications but only to paid advertisements such as streaming video in banner advertisements or pop-ups.

7. What is the Qld Local Government Department trying to achieve?

First, the Department should read the legislation and see if it achieves what they think it does.

Second, the Department should consider whether trying to clamp down on particular blogs is appropriate conduct for the Queensland government.

As part of any demand that blogs follow internet authorisation requirements during the referendum period, the Department should also request that newspapers publish the names and street addresses of their letter writers and that talkback radio hosts state the name and street address of their callers following each call.

The Local Government Department should also trawl through the comments in the myriad chatrooms to ensure that anyone commenting on the Toowoomba Water Futures project during the referendum period states their name and address as part of any comment. Newspapers which publish readers’ SMS comments should also publish the readers’ names and street addresses.

The failure to apply a common approach to all forms of media during the referendum period would indicate an attempt by State government officials to harass particular blogs in an attempt to stifle political debate.

Before attempting to do this, the State government should consider the implied constitutional freedom of political communication under the Australian Constitution which operates as a restriction on legislative and executive powers.

The Toowoomba City Council and the Qld Local Government Department now risk the debate over recycled sewage for drinking purposes in Toowoomba taking a sharp turn into the areas of constitutional law and civil liberties ...