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.
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.
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