A bad court decision for free speech

The Dom Post reports:

Winston Peters has won a case that resets the Electoral Commission’s clock on the publication of false election advertising on the internet.

The NZ First leader complained about two false statements published in the two days leading up to, and the day of, the September 2014 general election.

One complaint was against an ACT party candidate’s Chinese language television advertisement misquoting Peters on comments he made about Hong Kong-born businessmen John and Michael Chow’s plans for a 15-storey adult entertainment centre in Auckland.

The other was the Conservatives making misleading statements about NZ First’s alcohol reform policy and not correcting the statements even after the Advertising Standards Authority said they were wrong.

It is an offence to publish a statement known to be false, with the intention of influencing voters, on polling day or on the two days before polling day.

The Electoral Commission refused to act on Peters’ complaint about the two advertisements because it said they were not first published on the banned days.

Peters asked the High Court to clarify the point and has won his case.

In her decision issued on Wednesday Justice Jill Mallon​ said the issue was whether “publish” meant “first published” or first published earlier and continued to be available on the internet on the banned days. 

The judge said the law did not require the statements to be first published on the banned days. The law covered the situation of statements being published earlier and not having been removed.

I rarely criticise a judicial decision interpreting electoral law, but in this case I will.

I think the decision is a significant blow to free speech in election campaigns, and also places little credence on the intent and legislative history of the law.

Most issues of speech in NZ do not involve criminal penalties. We have civil remedies such as defamation, and also institutions such as the ASA, Press Council and BSA who can rule of whether some statements are misleading.

It should be very very rare that you face going to jail for what you say, unless it is of the level such as threatening to kill.

The Electoral Act has one of those rare exemptions, S199A which says:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

The maximum penalty for being found guilty of a corrupt practice is two years in jail and losing the right to vote for three years.

The intent behind this section is to cover a situation where say the day before the election a pamphlet is delivered to every household saying “A is a child abuser”. There is no time for the person named to refute it, the media to report it, and it has a significant impact on the election. If you are the rival of Candidate A, you might be willing to risk defamation (if you are wealthy) if it will throw the election your way. Hence the reason the section was placed in the Act – to provide a greater deterrent.

The court has ruled that this section can now cover any statement made at any time, so long as it is still publicly available in the two days before the election. This is a significant “change”.  You may now see politicians threatening people with criminal prosecutions for things said months before an election, unless they refuse to take them off the Internet. As a criminal issue, you would need it proven what you said is false, and you knew it was false, and you refused to withdraw it. But in an election campaign it is very common for people to claim that what someone else has said is false. The chilling effect of then threatening you with criminal prosecution is significant.

Peters is someone who does. He threatened me under this very clause when in 2008 I (correctly) pointed out that NZ First had not filed new party rules allowing a candidate (Peters) to be one the list without standing as a electorate candidate (which he was not), and that this raised issues of whether his nomination was valid.

Having S199A applying to statements made before the last 48 hours goes against the idea that this is for stuff where it is too late to respond. If a week before the election you think someone has said something false, you can rebut them and publish why they are wrong. The day before an election you might not be able to.

In view of this court ruling, I think Parliament should look at whether S199A should be amended or repealed. It was written in the days before the Internet and news cycles that are instant, not once a day at 6 pm. If someone says something false 48 hours before the election, you can have a rebuttal published within an hour, and through social media generate a backlash against the person making the false claim that will reach most voters (as media will pick it up also).

There should be consequences for people who make knowingly false claims to influence an election, But those consequences should be electoral, civil or reputational – not criminal.

If this law is left unchanged, then powerful politicians will use to to bully critics to remove criticism of them, with the threat of going to jail if they don’t. Sure many will be defiant, but many will think it is not worth the risk.

So as I said I think the ruling is a very bad one for political speech.