Online Election-time Engagement Tricky as Ever

Wait, are you sure you can post that?

Wait, are you sure you can post that? (By María Tobías [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via the Wikimedia Commons.)

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

IT’S BEEN INTERESTING to see that a post I made in 2012 at the time of the Hougang by-election has been seeing a surge of visits, as people try to figure out what they can or can’t post on cooling-off day and polling day of the 2015 general election (10 and 11 September).

The law hasn’t changed since then, so what I said in that post still applies today. This means online election-time engagement still remains a tricky issue for many.

Making it personal

The Elections Department issued a press release today explaining what activities are permissible over the next two days.[1] What I find slightly confusing is this statement:

There are some exceptions to the prohibitions of knowingly publishing or displaying election advertising on Cooling-off Day and Polling Day: […] The transmission of personal political views by individuals to other individuals, on a non-commercial basis, using the Internet, telephone or electronic means […]

This is because the highlighted phrase is not exactly the same as what is stated in section 78B of the Parliamentary Elections Act (‘PEA’).[2] I reproduce relevant parts of it below:

(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 — […]

(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; […]

(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. […]

The Election Department’s statement appears to suggest it is all right for individuals to share personal political views, whether held by them or by someone else, with one or more other individuals.

In contrast, section 78B(2)(c) is actually much narrower. It only allows electronic transmissions “by an individual to another individual of the first-mentioned individual’s own political views”. The first implication is that you can’t share your friend’s personal political views with a third party, only your own. Of course, there’s nothing stopping you from adopting your friend’s views as your own.

Moreover, the Act only seems to cover one-to-one and not one-to-many communications. Postings on social media would fall within the latter category. Someone asked me whether private online communications between a group of people are exempted, such as WhatsApp messages or messages shared among Facebook friends and not the public at large. Based on the wording of the section, I’d say they are not exempted. However, we don’t know for sure if this is the correct interpretation since no one has yet been charged for contravening this provision, and thus the courts have not had to interpret it.

In any case, it seems unlikely for messages in breach of the provision which are privately shared to come to the authorities’ attention, unless someone copies and reposts the message in a public forum.

Showing your colours

Another question I’ve been asked is whether an individual can cast his vote on polling day, and then go online and tell the world that he has voted for XYZ political party.

As a voter, you are certainly entitled to keep your vote strictly secret. The PEA contains detailed provisions designed to ensure this. For example, election officials, candidates and candidates’ election agents are required to take an oath of secrecy, and it is unlawful for them to reveal information obtained from polling stations on whom voters have cast their ballots for.[3]

In addition, during the period between the issuance of the writ of election and close of all polling stations, it is illegal for anyone to publish a survey of how people plan to vote, or their preferences regarding any candidate, political party, or issue associated with a party.[4] Until the polls close, publishing exit polls is also prohibited – statements on how voters have voted and forecasts of how the election as a whole seems to be going that are based on information from voters after they have cast their ballots are a no-no.[5] This is presumably to prevent people who haven’t voted yet from being swayed by others’ decisions.

Do these provisions prevent a voter from voluntarily disclosing how she voted? I don’t think so – though, again, the courts haven’t said anything definitive about this due to a lack of cases.

Section 56(4)(b) of the PEA states:

[N]o person shall — […] communicate at any time to any person any information obtained in a polling station as to the candidate or group of candidates, for whom any voter in the station is about to vote or has voted, or as to the number on the back of the ballot paper given to any voter at the station.

I think this only applies to a person other than a voter who discloses information about how the voter has voted. If it is the voter herself who wishes to say who she has voted for, this would be personal knowledge, not information she has “obtained in a polling station”.

What about section 78D(1), which relates to exit polls?

No person shall publish or permit or cause to be published on polling day before the close of all polling stations on polling day — […] any statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted […]

Again, I don’t think this applies to a voter revealing, before the polls close, how he has personally voted. What is disallowed is a statement “relating to the way in which voters have voted […] based on information given by voters”. The phrasing suggests that the person publishing the information must have obtained the information from other voters, not himself. The reference to “information given by voters after they have voted” may even suggest that voters are free to provide information about how they have voted if they wish to.

The TL;DR summary

  • On cooling-off day and polling day until the polls close, I don’t think we are allowed to post anything on social media that seeks to promote the electoral success or enhance the standing of candidates or political parties, unless it is in a private one-to-one message.
  • Until polling stations close, election surveys and exit polls are banned.
  • But it should be OK to reveal how you have voted on polling day, even before the polls close, if you wish to.

Vote wisely, everyone!

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    Press Release: Cooling-off Day and Polling Day – General Election 2015 (9 September 2015), Elections Department (archived here). A similarly worded posting on the Singapore’s Government’s Factually webpage, based on information provided by the Elections Department, was published on 25 August 2015 (archived here).
2    Parliamentary Elections Act (Cap 218, 2011 Rev Ed) (‘PEA’).
3    PEA, section 56.
4    PEA, section 78C.
5    PEA, section 78D.


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One comment

  1. Pingback: From Eligibility to Election: The Mechanics of the Presidential Poll | Singapore Public Law

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