“First of all, let me assert my firm belief that the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyses needed efforts to convert retreat into advance.”
Preparatory legal junk
Before I go ahead, I’d urge you to read my earlier post about Cleanfeed and censorhip in Australia. Whilst it’s not essential for understanding this post, I’d like you to get an idea of where my head space is on the topic before I continue. Although I’ll paraphrase shortly, I must strongly urge you to read (as laws go, the text isn’t too bad) Section 191 (‘Campaign material to be authorised’) and Section 4 (‘Electoral matter’) of the Tasmanian Electoral Act (2004) . You are more than welcome, though, to skip straight in to the next paragraph. I’ve referenced these laws in my earlier post, they’re the essential parts which I’m targeting more closely here. Further, whilst 190 (‘Division 5 – Offences relating to advertising and other campaigning 190. Interpretation for purposes of Division’), 192 (‘Authorisation not required on specified items’), 193 (‘Newspaper and periodical reportage and commentary’) and 194 (‘Letters to the editor’) are also advisable reads, I don’t really consider them as essential (and if you haven’t worked out how the Austlii navigation system works by now, you should also consider taking a closer look – it’s a wonderful resource). It’s noteworthy that when I publishing this blog, there are no informational publications from the State on how it expects it’s citizens to interpret these laws. We have such notices for all manner of other things, why this one’s avoided is anyone’s guess.
What the act says
I’ve spoken (unofficially and/or off the record) to three lawyers, two digital advocacy groups, party workers from both sides, the electoral commission and listened to the commissioner himself. After wading through all that, here’s what I believe S191 means:
If one makes any statement on the internet that may influence how one may think of any political candidate then such a statement must be followed up with ‘Authorised by <Name>‘ as well as ‘Full Address’ (ie, not suburb, PO Box, IP or email address) for the person taking responsibility regarding that statement.
(note, see postscript)
At first reading, this doesn’t seem too onerous. People are used to providing a name and address to the editor of their daily paper, the editor duly records that and keeps it for 6 months but only publishes the suburb, as per the act (S194). So one may well hear argument that the stricter requirements in the act on internet comment is because of potential anonymity abuses online. But such a proposition is so blatant crock I have a hard time knowing where to start.
Why you worry?
A simple observation of vox-pops printed in the Hobart daily shows that the editors don’t check addresses. Exaggerated example: the lead singer from Metallica or Ministry is under 16, standing in the ‘bus mall’ and offering opinions on bicycles on main roads. Not far from the reality that I read in our paper here on a weekly basis, if not in every major daily around the country where the pressure to publish has increased immensely over recent years. And even with one’s standard letters to the editor, it’d seem fairly obvious under current legislation that as one merely needs to give an address to the editor where one is commonly contactable via – and yet in all my years of writing editor letters I’ve never had the address verified back to me – it would be fairly simple to fake this address, too.
With a mind about how fake-able the requirements are for non-online electoral commentary, let’s look again at what the legislation says about online. Any comment likely to influence a vote must have the name and address next to it (I’ll return to the fake letters to the editor soon). So that means I’m going to need an Authorisation at the bottom of this blog post. Oh and every time someone Comments, they’ll have to give a Name and Address. Unless they don’t in which case I’ll have to decide whether I’m ready to take responsibility for their Comment and Authorise it. And even if they do provide, can I (as a simple single blogger without a global legal department to back me up) do better than Old Media and make sure that the Name and Address provided is genuine? After talking to lawyers they’ve said that even if I can’t confirm, I could still publish but I’d still need it Authorised by myself.
Any unworkable law is a stupid law that should be ignored
Wait wait wait. I’m getting ahead of myself. If there’s going to be an Authorisation after every comment, what about my Facebook page? If I say in a Status that I want to tear David Bartlett, his ‘@team_barlett‘ and the Tasmanian Labor Party a new hole for such a half-arsed attempt at blocking me, or think that Will Hodgman and the Tasmanain Liberal Party needs a kicking for letting former One Nation candidate Jacqui Petrusma on the ticket or that I’d wish Nick McKim and his hippie mates from the Tasmanian Greens woke up to themselves, threw away their coltan based devices went back to the caves… would I need to Authorise that? All indications are that I would. And if someone commented on my statement? Yup, they’d need to Authorise as well. What if they just wrote a smiley? Yup, Authorise. ‘Liked’? You guessed it. Each and every response an Authorised status message gets on FB? Should be separately Authorised.
You’d think this is about the end of it, but believe me the madness and insanity doesn’t end here. I’ve barely started. Can’t I just place an Authorised comment in the Info page where the Address details are showing? Well, that’s one click away – it’s not ‘at the end of’. How about the Infobox on the left page? Well, that’s certainly closer but still not ‘at the end’. But there’s a more fundamental issue here – I’m only considering one user interface. My phone’s FB UI has both the Info tab and box on separate pages that could be up to three clicks away from any Comment (Bad UI design on the App creator [more than two clicks from anything is bad]), but I can’t help that. I can’t know how every 3rd party application developer will lay out my comments. To be responsible to The Act, the only clean and proper way would be to include my name and address at the end of the comment (or in the case of ‘Like’ on Facebook, immediately authorise afterwards). I would argue that this would explain why the act is so unambiguous on this point.
lolwut?
Hopefully now you’re with me in what a mess FB should technically become during the Tasmanian election. And now to fulfill the promise second sentence of the previous paragraph. I’ve barely started. What about newer social systems than FB. How about, Twitter. A one to many SMS gateway. It’s more popularly known these days for the web and 3G interfaces, but at the core it started out as SMS only. SMS is limited to 160 characters and no graphics. Twitter’s limited to 140 (the missing 20 chars are used for routing). Does this mean that under … the … letter of the law …? Ah huh. If you excuse the Twitter pun, you’re following me now. There are candidates and citizens who are attempting to put the authorisation in to their profile picture, or on their background image. Where does this leave people using clients that don’t render these images in a large enough format to read? In the case of background images, some Authorisations are only visible if one has a sufficiently large screen to expand the browser, or in cases where one doesn’t is patient enough to expand and the browser size beyond screen dimensions. Even still, this doesn’t help text to speech converters. I’m think that the wording of the act is to make sure people with sight difficulties are not disadvantaged, which is more than fair enough. That there are a number of candidates blatantly disadvantaging certain interfaces I can almost live with. But such disregard for sight challenged people by violating a law that would seem to encourage compliance with web recommendation that’s over 10 years old is unforgivable and needs to be prosecuted to the full extent of the act. And while I’m talking minorities, I find it hard to believe the act means to force persecuted minorities to fully identify themselves if they wish to speak out during a campaign. 100 years ago when means of transport and communication were not as common place as today, this would have been an entirely different matter. But in 2010 when one can organise a riotous posse in a morning’s rant on a radio program and arrive at the other side of the country that afternoon ready for some of the old ultra-violence, it should be of concern to legislators.
Totally mad
Not that I think proper Authorisation on Twitter’s impossible, just it’s important that it’s available to all in an easily reachable format common to all. Twitter can form a conversation that changes perceptions (see last year’s Australian Liberal Party ‘#spill’ between Abbot and Turnbull). Wait, what did I just mention? Electronic conversations! Yes, dear reader. Instant messaging, chatrooms and emails all must be Authorised. I said at the start when explaining the legislation, ‘any statement on the internet’. To briefly combine Facebook and Twitter conversations, would the act cover chat rooms? More than likely. Particularly given, for example, how GTalk and FB Chat both use web technologies instead of more traditional proprietary technologies. And you thought I was overstating things.
Back to the issue of faking details, though. As I’ve mentioned before, the pressure to publish in today’s media environment is intense. There are claims that in many news offices, time to check facts is insufficient. Could this explain why ‘Red of Neck’ is making comment on the local News Corp website? Although the legislation states that authorisation’s not required until writs are formally issued and these aren’t out at the time of that article’s publication, we can see a number of things with this article. While the article calls for the government to sack the head of health, there’s no Authorisation for the article at the end. And ‘Red of Neck’ is so clearly a fake name, it’s hard to believe that the editor of the daily will leave this up there after writs are done. But then again, this is not too dissimilar to what the national broadcaster’s also doing. I can’t see anything apparently Authorising their entire local page, let alone any story on here that might influence a vote. It would seem that the online editors of the News Corp site have taken to defining ‘newspaper’ and ‘periodical’ to include online content that is separate to that of the printed version, as they would seem to me to be using the rules for printed material for their website. ‘All comments on election stories must contain your real name (Christian name and surname) and suburb’ (I’ll skip over the obvious ‘Chrisitian name’ issues here). Seems some sort of double standard going on here. How does a newspaper, or TV and radio broadcaster, website differ from any other internet site? My reading of the act is that it doesn’t.
I’ve offered to blog for an interstate crowd during the election. Best I can tell, whilst the blog publisher can Authorise what I write, he won’t need to Authorise comments made outside of Tasmania, but will need to Authorise the ones inside. As per the Act I’ve discussed. I suspect he’d rather just turn off comments than do IP checks, etc. I wouldn’t blame him, even if it does largely defeat the purposes of blogging. This act’s intent may not be, but it’s effect if followed through would be, to stifle any commentary. Who would bother? To be fair, it’s up to the prosecutors to decide whether to go ahead based upon the public interest test, whether we need it. I’d say with this much doubt surrounding the act, there’s every need to test the laws in court so that the public knows exactly where it stands with regards to the madness.
Stop hitting me
Sometime around now, my brain is hurting. To quote a national twitter political wonk phrase, hurting #alot. Yours is probably hurting equally merely for having read this far. I’ll try to be brief from here on in, I’ve just culled another 1000 words to go in to a later post hopefully early next week.
I’m left wondering what on Earth is going on in Tasmania? We’ve got an election law that, I believe, is breaking new ground for internet where no one on the ‘big island’ seems to be paying attention (apart from getting it repealed in the other state where they’ve tried to bring in a milder form). Well, I can live with the big islanders being (by and large) a bunch of bigoted hypocritical tools, that’s what they’re good at after all. It doesn’t explain the local media and candidates behaviour. Unless… maybe just maybe. It occurred to me that maybe they’re all aware of the issues and charging on ahead hoping no one will complain to the Commissioner or if they do they’ll just change their practice or pay the fine. But that’s just a bit silly as it means that the general population may be left open to challenges that, unlike the corporates, they’re incapable of defending. That’s fairly malicious and nasty. But what if one applies that maxim about not putting down to malice what can be put down to stupidity? Maybe the corporates and candidates are just too stupid to realise that they’re all about to walk in to a big pile of turds head first and with mouths open. Sure, they’ve smelt it from a mile away. But they had no idea it was so deep nor so runny.
All this before we get to the political machinations of an election under the Hare-Clark system where most pundits are predicting a result in which no party will be capable of forming a majority. In such a case, complaints to the Commissioner become even more important as candidates seek to eliminate others. Potentially from their own party structures, too (though highly unlikely). When I started writing this blog, I commenced with the thought that these laws were really bad and should be repealed before the writs are formally issued. But I’ve since changed my mind. They’re so darned stupid, every effort should be made to have them challenged in the system so that such stupidity is never born by Tasmanian netizens again. The Attorney-General (Judy Jackson) and Premier (Paul Lennon) who got this crap on the books need a dang good slapping. Pity they’re still not in parliament so I can Authorise a Twitbot to explain what they’ve done.
Oh dear
From a political, legislative and geek point of view I believe that in the coming weeks Tasmania will be ground breaking in terms of what’s permitted with regards to online behaviour during an the democratic process, not merely despite the insane requirement placed upon commentary – but because of them.
And as a online citizen of some more than 25 years, that puts some fear in to me.
Authorised by:
(ABC Online interpretation)
(News Corp interpretaion)
Peter Lawler, Hobart
(My interpretation)
Peter Lawler, 57 Landers Rd, Lane Cove, NSW
Postscript:
A message from the Commissioner this morning, regarding S191 (I note that there’s no solution yet regarding alternate UIs (particularly the Twitter issues), email or chatrooms etc.)
Electoral Commissioner
Authorisation of electoral matter on the internet
Under section 191(1)(b) of the Electoral Act 2004, all electoral matter published on the internet between the issue of the writ for an election and the close of poll at that election must contain the name and address of the responsible person at the end.
Address means a street address (not a post office box or an electronic address) at which the responsible person resides or can be readily contacted.
Responsible person means the person taking responsibility for causing electoral matter to be published.
The Electoral Commissioner recommends that at a minimum, candidates and other persons with websites (including ‘facebook’ pages) containing electoral matter, should ensure that the name and address of the responsible person appears on each page.
Eg, an appropriate place to include authorisation on a website would be on a footer, or on a ‘facebook’ page, may be in the box where you can “write something about yourself”, which appears under the photo spot in the top left hand corner.
edit: I must apologise for not having noticed some worthy commentary from a couple of days ago by Kathryn Crosby.
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