Council Election laws meet social media
By LGA Communications Director Chris Russell
When the Local Government (Elections) Act was passed by the South Australian Parliament on 26th August, 1999, Mark Zuckerberg, co-founder of Facebook, had barely turned 15.
The Elections Act, and its companion Local Government Act, represented a huge step forward from the 1934 Act which had been amended so many times a judge once called it a “thing of shreds and tatters.”
But the “new” Acts fall a bit short when being considered in the light of social media and its potential to engage voters in Council Elections.
The 1999 Acts contained some forward thinking requirements. Council Agendas and Minutes, Annual Reports, Financial Statements and a range of other information was required to be placed on the internet.
While I have not attempted any survey, I would be rash enough to suggest that the internet is now the preferred way for the majority of people to access such documents, albeit that they are not best sellers.
Australians regard elections as particularly important events.
There are laws preventing bribery and intimidation (with significant penalties), laws which guarantee the secrecy of votes, laws which set out how people entitled to vote receive ballot papers and how electoral staff must treat them and laws which set out how votes are to be counted.
There is also a provision requiring people publishing electoral material to identify the name and address of a person authorising the material.
There are similar clauses in State and Federal election laws which lead to the garbled “orfryzedby” at the end of election TV ads.
Some of these clauses are causing some concern to those using social media either to observe elections, promote candidates, or to encourage participation.
In the 2010 general elections, use of social media was generally low and bodies such as the Electoral Commission of SA and the Local Government Association did not have social media accounts.
Only four years later however and ECSA is active on Facebook, the LGA is active on Twitter and YouTube and candidates are expected to use social media extensively as part of campaigns.
In the highly charged environment of elections in which 1,261 candidates are battling for 629 positions in 189 separate contests, there is a fear that misleading information could become viral before a complaint is made to the Electoral Commission.
But there are other more basic concerns.
Such as whether it’s OK to have an “authorised by” statement in a Twitter biography or whether it’s required for every tweet.
“Vote for Fredrick Bloggs because … Authorised by Frederick Bloggs, 1873
Grand Junction Road, Mansfield Park. http://ow.ly/BKJz9″
Clearly the above scenario in which poor Fred has less than 30 characters to promote his cause is not feasible. In reality however we simply do not know how a court would view such matters.
Many organisations including the LGA are taking the view that the account biography is visible on an account’s twitter homepage and a click away for a follower on a mobile device so adequate to mitigate any risk.
But should it be applied to each Facebook post?
And what if someone else posts electoral material to a Council Facebook page?
As a Council is required by caretaker provisions to treat all candidates equally with its own resources it probably needs to monitor and remove partisan electoral tweets promptly to avoid criticism or legal action.
Advice taken by the LGA is quick to point out that the Act was not written with social media in mind, so a Court may find it difficult to interpret matters where well-briefed Federal politicians struggle with the difference between a URL and a webpage.
However excited candidates may get about what misdemeanours their opponents may have committed, it is likely that Electoral Commissioner Kay Mousley and the Court of Disputed Returns will remain clearly focused on whether any such inappropriate activity impacts on the election results.
Candidates and others should be concerned. They should read and re-read sections 27 and 28 of the Local Government (Elections) Act 1999. But I suspect it is likely these provisions may well be reviewed before the 2018 elections.
Authorised by Chris Russell, 148 Frome St, Adelaide.
Council Election laws meet social media: 2020 Update
Now in 2020, social media has become a primary means of political advertising. From local to state and national ads, social media was a dominant factor in the 2018 elections, and is only anticipated to increase in the years to come.
Still, sections 27 and 28 of the Local Government (Elections) Act 1999, have not been amended to include social media advertising. However, the principles of these sections as they pertain to print and traditional advertising can be included to reduce misleading information and/or proper disclosure of information avoiding penalties and retractions.
Facebook, for example, now has dedicated specific pages for politicians to use for their elections and beyond which provides more resources allowing for proper disclosure to occur.
With the increased utilisation of video based ads, there is not only the opportunity to allow for proper disclosure, but also the ability to enhance traditional television advertising by including video advertising on social media.
Candidates can also provide links to their website landing page with disclosure details being contained therein.
Given these considerations, there are still risks with social media advertising to do with the authorisation requirement being included in electoral advertising and identification of the author of the material.
In South Australia, Division II, section 112 of the The Electoral Act 1985, has been specifically updated to include electronic media and internet advertising providing clearer context to how this new medium can be utilised within the parameters of fair disclosure and authorisation. Section 113 addresses misleading information within the context of all advertising and therefor includes social media and internet advertising.
Local Government Elections Act 1999 (South Australia)
Electoral Act 1985 (South Australia)