There has been a lot of discussion about the recent changes to the South Australian Electoral Act 1985, and in particular the amendment to s 116 which extends the requirement of attribution to the internet.

The law seems poorly drafted and unworkable, but it may not pose as much of a threat as is suspected. See over the jump for my analysis.

The amended Section 116(1) provides that:

A person must not, during an election period, publish material consisting of, or containing a commentary on, any candidate or political party, or the issues being submitted to electors, in written form, in a journal published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material or the programme in which the material is presented contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of the material.

'Journal' is defined to mean "a newspaper, magazine or other periodical."

On its face, then, this legislation seems to be limited to periodical publications -- magazines and newspapers and similar publications that come out at regular intervals. These publications were already required to provide the name of the publisher in print, so the extension of such a requirement to online publication seems not to raise any particular problems. It also covers material on 'radio or television or broadcast on the Internet'. 'Broadcast', at least as it is defined in Commonwealth legislation, covers audio or visual transmissions but not text and static images (see s 6, Broadcasting Services Act 1992 (Cth)). So this requirement would cover radio and television stations and probably podcasters as well.

It is important to note that this legislation does not require each commentator on a website to be named. It requires the publisher of the site (or a responsible person) to be named. So it would appear that comments on newspaper pieces may still be anonymous, as long as the newspaper's publisher is named. So far, there's no real problem here.

The problem comes when we look closer at the types of publications this legislation was designed to cover. A plain English interpretation suggests that newspapers, magazines, and the more formal blogs will be covered. Reading the parliamentary debates, however, shows that Michael Atkinson has a different idea about the scope of the legislation. The amendments as they were first introduced did not broaden the scope of s 116. During debate, the SA Government amended its legislation to cover electronic publications:

Parliamentary Debates, House of Assembly, 02 June 2009, South Australia

I have amendments coming to section 116 which require, in the blogosphere, during the election campaign, attribution. You want to know that a real person of a real address is publishing the material and takes responsibility for it. (p 2857)

[Atkinson:] Government amendment No. 8 amends section 116(1) so the requirement to include a statement will also apply to material consisting of, or containing, commentary on any candidate, party or issues being submitted to voters that is published or broadcast on the internet.

Mrs REDMOND: I know that the internet is a very broad term, but again I ask the question: will it apply to telecommunication by mobile phone? I would assume it is not caught by
that. I wonder whether the term 'internet' is actually broad enough to capture everything that we presumably will be taking about like blogs, Wikipedia, Facebook, Twitter and all the other things that could occur.

The Hon. M.J. ATKINSON: Yes. We aim to catch web pages and, therefore, it would cover blog sites, Wikipedia and internet newspapers such as Adelaidenow, but we do not want to go into twittering because that is too much like individual communication over a mobile phone. So, that is where we are putting the boundary.

Atkinson goes on a bit about "exercising some common sense" about the application of the rule; it seems to be sufficient, in his opinion, for the website to be well enough signed so that people know who is "taking responsibility for that commentary".

There seems to be, accordingly, some confusion about what, exactly, this legislation is designed to cover; the text of the legislation seems to limit its application to periodical publications, which would only seem to cover the most formal blogs and broadcasters. This seems relatively desirable, in that it would be strange if these publishers could avoid any requirement of attribution by switching to electronic delivery. This conflicts, however, with Mr Atkinson's statements that the requirement will extend to the blogosphere, to wikipedia, to websites, and internet newspapers (but not, for some reason, twitter).

I think the best interpretation of this law is probably the one that only 'periodical' publications and real broadcasts will be covered; so online newspapers and broadcasters will be covered, but not necessarily small personal websites or blogs. If that's the case, then this legislation does not seem as bad as it first appeared.

The real problems with the legislation, however, are:

  • it's not clear how it will apply; the mere fact that we're having all this confusion means the legislation is poorly drafted, and does not provide enough guidance as to what, exactly, political commentators will be required to do;
  • it is being supported by Atkinson in the most appalling way - the news reports quote him apparently frothing at the mouth about 'Adelaidenow', which the law seems implicitly to target;
  • to the extent that it applies beyond mid-sized media organisations, it is completely unenforceable. There's no consideration given to how this will apply to people outside of South Australia or how exactly the thousands of websites that have political commentary will be monitored;
  • and again, it's not clear how it will apply; Atkinson suggests it applies to websites, blogs, wikipedia, but not twitter, but there is absolutely nothing in the legislation which supports that.

17 comments

  1. I'd say the Tasmanian act is nastier. 'is likely to or has the capacity to affect voting in an election' is a very broad brush.

    http://www.austlii.edu.au/au/legis/tas/consol_act...
    ELECTORAL ACT 2004 - SECT 191
    191. Campaign material to be authorised
    (1) Subject to sections 192, 193 and 194, a person must not, between the issue of the writ for an election and the close of poll at that election –
    (b) publish, or permit or authorise another person to publish, any electoral matter on the internet without the name and address of the responsible person appearing at the end of the electoral matter.

    http://www.austlii.edu.au/au/legis/tas/consol_act...
    ELECTORAL ACT 2004 - SECT 4
    4. Electoral matter
    (1) For the purposes of this Act –

    Comment by Pete on 3 February 2010 at 01:21
  2. Bah, lost the last line in the copy/paste!
    http://www.austlii.edu.au/au/legis/tas/consol_act...
    ELECTORAL ACT 2004 – SECT 4
    4. Electoral matter
    (1) For the purposes of this Act –
    ‘is likely to or has the capacity to affect voting in an election’ is a very broad brush.

    Comment by Pete on 3 February 2010 at 01:22
  3. Here's the trouble with this interpretation: Sure, you might get off if they charge you. *If* you have a lawyer who can make these arguments. How much research - and therefore money - is it going to take to define

    Comment by David Jackmanson on 3 February 2010 at 01:48
  4. Here's the trouble with this interpretation: Sure, you might get off if they charge you. *If* you have a lawyer who can make these arguments. How much research - and therefore money - is it going to take to define periodical legally? The whole definition of a blog is that it has dated posts; if I was an aggressive prosecutor I'd argue that every blog is by definition a periodical and use the fear of being taken to court cut down on anonymous comment.

    I hope this bad law is defied by others. I'm doing my bit - the http://savotes2010uncensored.wordpress.com blog will accept anonymous comments about the SA election during the election period.

    Comment by David Jackmanson on 3 February 2010 at 01:49
  5. [1] A secret ballot is guaranteed by legislation.
    [2] Freedom of political expression is guaranteed by the Australian Constitution (following a recent decision).

    Surely forcing self identification when expressing political opinion would have the likely result of identifying one's ballot intentions, thus impinging on [1].
    Also, fear of retribution resulting from self-identification would impinge on [2].

    Why has this legislation never been challenged?

    Comment by mutatedwombat on 3 February 2010 at 01:49
  6. For what it's worth, the

    Comment by Jessica on 3 February 2010 at 02:02
  7. For what it's worth, the 'Adelaidenow' that he keeps harping on about is the website for The Advertiser: http://www.news.com.au/adelaidenow/ - so while it's a site that will potentially be affected by these changes, it's also one that already had a policy in place for political discussion during the election period.

    (mmm. comments cut off after double-quotes.)

    Comment by Jessica on 3 February 2010 at 02:02
  8. And if the website is hosted in the US (Adelaidenow seems to be a handy example), what then?

    Comment by Simon on 3 February 2010 at 04:40
  9. Hi Nick,
    It seems to me that this act only covers the publication of "comment" and not "opinion". Comment being substantially fact based whereas opinion being indefinite or judgement. So where discussion is clearly worded as personal opinion it is not captured by the wording or intention of the act. Does this distinction make sense to you?

    Comment by BilB on 3 February 2010 at 05:34
  10. BilB said: 'Does this distinction make sense to you?'

    None whatsoever. They'd be interchangeable, I'd think.

    Comment by weez on 3 February 2010 at 05:41
  11. 'Does character escaping make sense to you?' 'None whatsoever, I'd think.'

    Comment by nothing on 3 February 2010 at 07:26
  12. I didn't put in those backslashes.

    Comment by weez on 3 February 2010 at 13:27
  13. The EFA sites commenting system is dodge it doesn't like certain characters and by the looks of it shows the escape characters as well from when your post is written to the database to stop injection of code

    Comment by Jack on 3 February 2010 at 20:39
  14. that's kind of weird; not sure "why it's" doing that - especially since it doesn't seem to do it all the time. I'll look into it"

    Comment by Nic on 3 February 2010 at 21:37
  15. Its done it to me in the past and when i've tried to post walls of txt only half the txt showed. I ended up giving up and linking to a blog post I wrote.

    Comment by Jack on 4 February 2010 at 01:37
  16. The slashes are added to escape the apostrophe in the interests of preventing sql injection. But they should be removed when the data is retrieved / displayed.

    Comment by Simon on 4 February 2010 at 07:27
  17. Did you notice in these ammendments that electoral registration is now mandatory to the point of being fined for not registering? Section 32.

    Comment by Tara on 4 March 2010 at 01:52