What Can You Say on Cooling-off Day?

Antoine-Augustin Préault, Le Silence (19th century)

Ssssh! French sculptor Antoine-Augustin Préault‘s 19th-century work, Le Silence. (Photograph by Electron [public domain], via the Wikimedia Commons.)

Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

UNLESS YOU’VE BEEN living under a rock for the past two weeks, you’ll know that polling day for the by-election in Hougang Single Member Constituency is tomorrow, 26 May. This makes today “cooling-off day”, when no active election campaigning is permitted by law.

At 12:46 am today, one of my Facebook friends posted a hyperlink to a speech by Workers’ Party candidate Png Eng Huat delivered at the Party’s last rally before cooling-off day. The person added a comment to the effect that the article was worth reading, but that he would not quote any portions of it due to cooling-off-day restrictions.

Subsequently, another person posted a comment on the contents of the speech. The original poster then responded that that person might wish to delete the comment in view of cooling-off-day restrictions. Then ensued a discussion about what the law permits or disallows.

That got me thinking about the issue. The provision in question is section 78B of the Parliamentary Elections Act (‘PEA’),[1] the relevant parts of which state:

78B.— (1) Except as otherwise provided by or under subsection (2), no person shall, at any time on polling day or the eve of polling day at an election in an electoral division —

(a) knowingly publish, or knowingly cause or permit to be published, any election advertising in or among any electors in the electoral division; …

(2)  Subsection (1) shall not apply to —

(a) the distribution of a book, or the promotion of the sale of a book, for not less than its commercial value, if the book was planned to be published regardless of whether there was to be an election;

(b) the publication of any news relating to an election —

(i) in a newspaper in any medium by a person permitted to do so under the Newspaper and Printing Presses Act (Cap. 206); or

(ii) in a radio or television broadcast by a person licensed to do so under the Broadcasting Act (Cap. 28);

(c) the telephonic or electronic transmission by an individual to another individual of the first-mentioned individual’s own political views, on a non-commercial basis;

(d) any election advertising that was lawfully published or displayed before the start of the eve of polling day at any election on what is commonly known as the Internet and that was not changed after its publication or display;

(e) the continued lawful display or posting of posters or banners that have been displayed or posted before the start of the eve of polling day at any election; and

(f) such activities or circumstances as may be prescribed by the Minister.

(3)  Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction by a District Court to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 12 months or to both.

(I’ve left out subsection (4) which isn’t relevant here.)

Right, so according to section 7B(1) election advertising isn’t allowed in Hougang SMC or among electors (voters) of Hougang SMC either today or tomorrow.

The term election advertising is defined compendiously in section 2(1) of the PEA as: “any poster, banner, notice, circular, handbill, illustration, article, advertisement or other material that can reasonably be regarded as intended — (a) to promote or procure the electoral success at any election for one or more identifiable political parties, candidates or groups of candidates; or (b) to otherwise enhance the standing of any such political parties, candidates or groups of candidates with the electorate in connection with any election, and such material shall be election advertising even though it can reasonably be regarded as intended to achieve any other purpose as well and even though it does not expressly mention the name of any political party or candidate…”

Commenting on an existing article on the Internet when the comment amounts to “election advertising” appears to fall within the definition of publishing such advertising, but what about merely posting a link to an article without commenting on it? Well, section 2(1) of the PEA is again relevant, because it states:

“publish” means make available to the general public, or any section thereof, in whatever form and by whatever means, including broadcasting (by wireless telegraphy or otherwise) and transmitting on what is commonly known as the Internet…

Therefore, posting a link to an article arguably makes it available to the public, and so amounts to “publishing” the article, even though it had already been published earlier on. There isn’t anything in the definition of the word publish which limits it to a first-time publication of any material.

The question is then whether the acts mentioned above are excluded from being wrongful by section 7B(2)(c), which exempts “the telephonic or electronic transmission by an individual to another individual of the first-mentioned individual’s own political views, on a non-commercial basis”.

Unfortunately, the way the provision is drafted suggests that you are only permitted to communicate your personal political views to another individual, perhaps by e-mail or by SMS. If you use some medium such as Facebook or Twitter that allows your message to be read by third parties (including, potentially, Hougang voters), then it might be said that this is not a “transmission by an individual to another individual”.

The upshot is: until the polls close at 8:00 pm tomorrow evening, you are best advised not to post comments expressing your views about the candidates or their parties, or even links to any pre-existing articles on the Internet, on any social media.

The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the School of Law, Singapore Management University.


Notes
1    Parliamentary Elections Act (Cap 218, 2011 Rev Ed).


You may reproduce this article unchanged on your website provided that you add the statement “© 2012 Jack Tsen-Ta Lee. First published at Singaporepubliclaw.com, and used with permission.”, and a trackback or link to this page.

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27 comments

  1. todo

    It only applies to members of political parties.
    Anyone who is NOT i.e. (public) that has no association whatsoever can go on their blogging, twittering or face booking.
    The world of news & communications does not stop just because it’s “cooling off day” stipulated by a government.
    That was the case in GE2011.

    • jacklee

      I’m afraid not. Section 78B(1) clearly says “no person shall… knowingly publish… any election advertising”. There isn’t anything in the PEA that limits the prohibition to members of political parties. Thus, blogging or commenting on social media by anyone on cooling-off day or polling day, where the remarks amount to “election advertising”, is technically an offence. However, the authorities may choose not to prosecute minor infractions (as with Ms Tin Pei Ling back in 2011).

  2. Jeannette Chong-Aruldoss

    Jack, I think many people believe that the Cooling Off (and Polling) Day restrictions only apply to candidates and their campaign team. But, as you have said, Section 78B(1) makes no such distinction. One paragraph of the press release from the Elections Dept starts by saying “Candidates and supporters should refrain from… ” and this might reinforce the notion held by many Cooling Off Day restrictions won’t apply to those not involved in the campaigning.
    http://www.eld.gov.sg/pressrelease/ParE2012/2012-05-23%20cooling%20off%20day%20and%20polling%20day.pdf#zoom=100

    • jacklee

      The notice from the Elections Department does seem to provide an incomplete view of the law on the matter. Presumably the police will adopt a policy of not taking action unless there is a blatant attempt by a candidate’s supporter to circumvent the rule.

      • Charles Tay

        Professor Jack,

        It’s possible that the plain meaning may be ambiguous as the act in its entirety deals with candidates and their campaign teams. However, taking a purposive approach might shed some more light on this matter.

        The Second Reading Speech introducing the Cooling off day into the PEA can be found at: http://www.elections.gov.sg/mediarelease/Second_Reading_by_Law_Minister_K_Shanmugam_on_the_Parliamentary_Elections_Amendment_Bill.pdf

        Paragraphs 22-24 are instructive. They are set out here:

        “22. The reason for a Cooling off day is clear. During an election campaign, various
        parties and their candidates will put forward their manifestos and ideas to the
        electorate. They will engage in debates across the island on national policies
        and local issues, and seek to appeal to people’s hearts and minds. There will
        be political messages during this period, at election rallies and door-to-door
        campaigning, on television and in print, from lorries driving around blaring
        political messages from loudspeakers, and in the future via the new media.

        23. The Cooling off day will give everyone some time after the excitement and
        emotion of campaigning, to reflect on the issues and arguments made, analyse
        logically and rationally what is at stake, and then go to the polls the next day to
        cast their votes. This is important because in a General Election, each one of
        us will be making very significant decisions about our future and Singapore’s
        future.

        24. Another reason for having a Cooling off day is that, if emotions do run high
        between contesting groups of supporters during campaigning, the risk of
        disorder, on the eve of Polling day, and on Polling day itself will be reduced.”

        Looking at just paragraphs 22-23 it might be said that the purpose of the Cooling off day is to ‘give everyone time’ to ‘reflect’ ‘after the excitement and emotion of campaigning’. It can be fairly said that Facebook political discussions by ordinary members of the public promotes such ‘reflection’ and should thus NOT fall within the offence envisaged by s 73B.

        When one considers paragraph 24, however, another purpose of the Cooling off day provisions comes to light, and that is to reduce the risk of disorder ‘between contesting groups of supporters’ where emotions ‘run high’. It can then be fairly said that public Facebook discussions DO fall within the social situation that the provisions seek to address (the ‘mischief’, if you will). After all, all political discussions have the potential to bring about high strung opinionating and posturing. The proviso ‘during campaigning’ might mitigate this but it’s probably not of too much significance as the main idea behind the provision is to avert high strung emotions among the public.

        Taking the above into consideration, I’m compelled to agree with you and think that the preferred view is that s 73B covers EVERYONE, not just candidates and their campaign team. I’d think that’s what the courts would say if they ever have to consider the question of who s 73B would apply to. So, it does ultimately go down to police discretion. I’d agree that your caution is well made.

        Best regards.

      • jacklee

        Hi, Charles, thanks for commenting. Well, the PEA doesn’t just apply to candidates and their teams. Various parts also apply to electors (voters). Also, it seems to me that if section 78B doesn’t apply to people who are neither candidates nor members of their campaigning team (and how is that to be defined?), that would be a serious loophole that would enable candidates to easily circumvent the prohibition against advertising on cooling-off day and polling day.

      • Sunil Sandhu

        I think social networking is one means of communication that has many grey areas (it is a recent phenomenon too). It is not easy for the lawmen to police these social networks. For example, any one can create a fake account and post anything. It is high unlikely that Facebook, Twitter etcetera will share information on the IP address etcetera from which a post originated (even though they definitely do have such data). That being said, it is better to allow people in these non-commercial networks to continue their discussions rather than prosecute them for it; I find this to be similar to discussing political views in a coffee shop with your friends (back then in the 70s, 80s, 90s and even now). One big difference now is that people have many more “virtual” friends. We live in a different age now, thanks to the speed of communication which has taken giant strides within the last decade. Outside the election period, you have loads of people just browsing through their Facebook accounts, tweeting etcetera just about anything that is happening in their lives, recent articles they read, and whatever else (I recently had a “not very” close friend post that she woke up with a “pimple” (i.e. acne) on her face). My point is that these sites are just like a “coffeeshop” discussion “outlet” for many teenagers and young adult Singaporeans out there. (Singapore has one of the highest no of Facebook users percentage-wise). So these social networks are part and parcel of their lives; it is how they communicate at “light speed” with all their friends. And friends here include friends they don’t really know well enough (Adding a friend in the social network world is just a away). Furthermore, if the lawmakers were to prosecute all the above people, others will just get smarter and resort to fake accounts, proxies etcetera, and it will be close to impossible to prosecute anyone then (at least in the way the internet presently operates). It can become a big headache for the lawmakers if that happens.

    • jacklee

      But aren’t your Facebook friends a segment of the general public? However, since this is a by-election and not a general election, if you can prove that none of your Facebook friends is a Hougang voter you won’t commit an offence. That’s because the publication of the “election advertising” must occur “in or among any electors in the electoral division”.

      • Pondering

        With all due respect and do correct me if I’m wrong, I agree with Stephan. Based on the quoted S78B(2)(d) above, any unaltered election advertising that was already lawfully published or displayed before the start of the cooling day (i.e. the eve of the polling day) on the Internet shall not apply to S78B(1). S78B(2) seems to extend to brochures or pamphlets that were printed and sent out before the cooling day and received by voters on the cooling day itself.

    • jacklee

      Hi, Pondering, thanks for your comment. Yes, section 78B(2)(d) exempts the publication of election advertising that had been published before cooling-off day from being an offence. But my point is that the act of posting a link to such material amounts to a fresh publication, and so is not permitted by section 78B(1).

      • Pondering

        Hi Jack, thanks for re-emphasising your point. The word “publish” has the meaning of “to make available to the general public, in whatever form and means, which includes transmitting of infor on the Internet” as defined.

        I am not sure if the word “public” is defined in the PEA too or in any relevant act within the sg jurisdiction or any jurisdiction but according to the online dictionary, “public” means “open to the view of all; open to all persons; can affect a population or community as a whole (eg public funds)” etc. According to that same dictionary, “all” means “all kinds; all sorts; everything; wholly etc”.

        If the words “public” and “all” have not been defined in any other meaning(s) other than what has been stated in the dictionary, it is hard to foresee in any way commoners like you and me, by posting a referral link on our own personal Facebook account, will constitute as having the capability and accessity “to make the infor available to the general public, open to the view of all”. Let alone affect the entire population or community.

        Take for eg. A posted on Facebook a link to a public website(eg youtube). B sees it, uses the same link to post on their personal Facebook account. Based on the above definitions, this should be okay because A and B (not public figures) are separate entities and by posting to personal accounts, they should not be deemed to have the capability and accessity to make the referral link viewable by the general public, to the extent of affecting the entire population or community. Those who have access to the links are presumbly friends “confirmed” by A and B.

        A and B may also have friends who are voters on their Facebook accounts but they are just individuals and should not be constituted as “the general public”. If A and B were to disseminate the link through textings or emails to the same group of people, wouldn’t it be of the same impact? Although friends, it is hard (and troublesome) for A and B to remember which friend is classified as voter since the zoning is different with each election.

        Please do correct me if wrong. Thank you.

  3. Pondering

    TPL’s case may serve as precedent for similar matter. After all, the spirits of law should be based on fairness and unbiasedness. Isn’t it?

  4. KW

    I would agree with Jack’s view on the effect of the statute. SG’s laws have usually been drafted in a such manner as to make them ‘watertight’. The right to prosecute is reserved (via the statutes). The powers-that-be may choose not to prosecute but the preogative would then remain their choice and such a legal right still remains at their disposal – so in a sense, ‘the house always wins’. What is curious though, is the assumption and amount of psychosocial research that has gone in (or lack thereof) to draw the conclusion that ‘one day of cooling’ is a sufficient or effective measure worthy to be drafted into law.

  5. Layman

    Hello Prof,

    Thank you for your article. I found it to be very informative, and it helps to explain the cooling off day law to people like me who are not legally trained.

    While I am not officially trained in law, I have done some research on the social implications of several of Singapore’s statutes for my graduate studies. And if there is one thing that I have learnt from my research, it is that laws are meant to be ambiguous. I’m absolutely sure that those who are trained in law would disagree with me on this. But I have found that the more ambiguous the law, the easier it is for the law-maker and law-enforcer to enforce the law subject to their own discretion.

    Though, it has to be said that the ambiguity of a law diminishes in proportion to the criminality of the offense and the effect it has an on offender’s well-being. For example, laws on drug trafficking would be less ambiguous because it is a serious criminal offense and may lead to the death of the offender. But a law that carries a punishment of only fine and does not really affect an offender’s well-being would be more ambiguous. So I’m not surprised that the cooling off day is as ambiguous as it is.

  6. skary

    Of course the newspapers and state media are exempt. Just an attempt by the state to try to regain control of the election narrative from online channels. Pathetic.

  7. metada123

    Scary to think that ordinary people who don’t know such laws or interprete it correctly can be hauled off to jail or fined for using such common tools as Twitter or Facebook. Thanks Prof Lee. If only SG constitution and basic laws and access to them were taught in moral education/good citizenship in school.

  8. Confused

    Did the Strait Times violate cooling off days rules that you mentioned above by posting the following article entitled “PAP: Chance to start afresh” on cooling off day (I have verified that the below post shown in the snapshot does exists in their FB page: http://www.facebook.com/TheStraitsTimes)? I am totally confused! Please enlighten me sir…..

    • jacklee

      Probably not, because section 78B(2)(b)(i) of the PEA specifically permits companies licensed under the Newspapers and Printing Presses Act to continue publishing news on cooling-off day and polling day.

      • Confused

        So I guess your point is that: (i) a person outside the above licensed media is not allowed to publish a link to some election related article etc, (ii) a person outside the mainstream media is allowed to discuss his/her own political view with his/her FB friends regarding some article published by the licensed media. The latter conclusion is from the example of the group of people who commented under the original ST post on cooling off day (i.e. the act of posting a link in the ST FB page is equivalent to starting/inviting a discussion thread with the >50k ST FB readers in the comment canvas under the link (unless ST explicitly stated commenting/discussing is not allowed on cooling off day, which they did not). So similarly, discussing your personal views with your FB friends in your own FB page is allowed (as long as you do not post a link).

      • Confused

        Actually I want to add that a person outside the licensed media is allowed to share a link to a post in the licensed media FB page (i.e. using the “share” tool under the FB post). In the ST example above, they did not state that using the “share” tool was disallowed on cooling-off day. But since the laws are so ambiguous, a court of law IN the Lion city can probably rule that it is the individual’s responsibility to figure out what is allowed on cooling-off day, so ST does not need to explicitly state what is allowed on their FB page; I do not need to say more;)

      • jacklee

        Yes, I don’t think it is the newspaper’s responsibility in this case to have a notice advising readers that they should not be forwarding links to other people on cooling-off day and polling day. (Or, at least, the law does not require them to have such a notice.)

  9. justicewillprevail

    Got here while Googling for interpretation of PEA Cooling Off – Question: Newpapers are allowed to print “reports”, but with specific reference to ST and TODAY, both front pages are plastered with PAP rhetoric against WP. While the law covers this (barely), I seem to remember ST already ran afoul of the law publish straw polls and they continue to publish this online here (http://www.straitstimes.com/the-big-story/punggol-east-election/story/pap-will-keep-serving-people-integrity-pm-20130125) and here (http://www.todayonline.com/singapore/pap-upholding-its-purpose-objectives-and-integrity-pm).

    Based on time stamps, both articles were published online today 25 Jan 2013. Does this contravene the Act?

    • jacklee

      Such news reports are probably not a contravention of the law because section 78B(2)(b) of the Parliamentary Elections Act permits the publication of “any news relating to an election… in a newspaper in any medium by a person permitted to do so under the Newspaper and Printing Presses Act”. Thus, reports in online versions of newspapers seem to be allowed. On the other hand, postings on Facebook pages and in Twitter accounts most likely cannot be considered as reports which form part of online newspapers, which is probably why Today newspaper announced that it would not be updating its Facebook page and Twitter account until after the close of polls today.

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