Tweeting who to vote for at a by-election on the day the poll is being held is silly, but it isn't exactly the worst thing that any politician has ever done. Hell, it may not even be illegal.

So the whole David Cunliffe storm-in-a-Twitter-cup thing needs settled. Here's how I see it.

First of all, he was dumb to send out the tweet. Especially if, as I understand it, the Electoral Commission specifically warned candidates and parties not to tweet on the polling day. Sometimes you just need to put the phone down and walk away.

Second, even if he's technically breached electoral law (more on that in a moment), it's an incredibly minor breach. Cunliffe has a touch under 6500 followers on Twitter. Most of these will be partisan friends (wanting to hear the latest from their leader, whose party they'll vote for anyway), enemies (hoping he'll say something dumb - like he did - so they can leverage it against him, and who will never vote for him or his party), or jaded journalists who long ago lost their souls and can't be moved to do anything with the remotest semblence of human feeling.

So anyone who thinks Cunliffe's tweet had the potential to affect an election that the Labour candidate won with over 60% of the vote needs to stop hanging out so much with Nigella Lawson.

That said, the law is the law, and if Cunliffe has broken it then he ought to face the same consequences as anyone else (and more on that, too, in a moment). The question then being, has he breached the law?

(Here's the relevant section of the Electoral Act:

Every person commits an offence and shall be liable on conviction to a fine not exceeding $20,000 who at an election at any time on polling day before the close of the poll exhibits in or in view of any public place, or publishes, or distributes, or broadcasts ... any statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote.)

In some media comments earlier today, I expressed some doubt as to whether a "tweet" would qualify as being "published" under this provision. However, in an email exchange with one Graeme Edgeler, I've been convinced I'm wrong to do so. I shamelessly copy-and-paste his reasons here for more general edification (sorry if this tramples on a Legal Beagle post, Graeme!)

I [being Graeme] think this falls under the definition [of publish] reached by ordinary principles. I look at the list of possible actions covered: exhibits or publishes or distributes or broadcasts, and I view it as an attempt by Parliament to cover everything. They don't want people making technical arguments about what publish means and then getting off, so include a bunch of possibilities to make sure all publications are covered.

We can also look at the context provided in the proviso for websites - it is clear that it intends that a statement "placed on the website" is published.

"It is a defence to a prosecution for an offence against paragraph (g) of subsection (1) that relates to the publication on an Internet web site of a statement or other material specified in that paragraph, if the defendant proves that—

(a) the statement or material was placed on the web site before polling day; and

(b) the defendant did not operate or permit the operation of systems that cause the statement or material on the web site to be made available, on polling day, to persons other than persons who voluntarily access the web site"

Well, David Cunliffe's twitter page is a website, and he updated that website with this statement on election day. I can see no fundamental distinction that would mean a statement "Vote Poto" placed on http://www.labour.org.nz on election day would be published, but that same statement on http://www.twitter.com/DavidCunliffeMP would not be published - the same principles of people choosing to go there apply equally to both website.

Your argument is perhaps too good: I have to voluntarily look up most websites, so would anything other than, say, banner advertising on an unrelated site be covered as published? Why would we need the proviso at all? Indeed, I'm more likely to inadvertently see the twitter one, because I would only go to Labour Party site to see pro-Labour material, but I should not have to avoid all of twitter on election day. I don't even need to follow David Cunliffe, because it could easily be re-tweeted (and not turning that option off on election day may be permitting the operation of a system whereby people who didn't voluntarily go to Cunliffe's page of tweets had such material made available to them).

I think it is published and if it's not, then it may be distributed or even exhibited (is the Internet a public place?), but very much suspect we won't get a definitive ruling on that. It's a category one fine-only offence (under $40k) so it may even be dealt with by a community magistrate :-) (okay, probably not). And, if he's charged, he might even plead guilty.

So - I fully accept that Cunliffe's "published" the tweet by sending it to his followers. Does that necessarily mean he's guilty of the offence? Well, not necessarily.

I also think that there's also an argument that before he could be convicted, the prosecution would have to show that Cunliffe had Twitter followers able to receive the tweet before he took it down (here my knowledge of how Twitter works starts to get a bit fuzzy) who were registered to vote in the Christchurch East electorate. Here's why.

First, note that the relevant offence provision requires that the publication must be of: "any statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote." I would argue that the term "elector" (used instead of "person") has to be read in reference to "the poll"; i.e. it must mean an elector at the election in question (the ChCh East by-election), not just someone who is on the electoral roll generally. So if I were to go into the Octagon in Dunedin on the day of the by-election and start handing out leaflets telling people "vote for Poto Williams!" (or even "vote Labour"), I'm not in breach of the provision because the target audience can't do what I want them to.

I guess it nevertheless can be argued that Cunliffe "intended" to influence electors in Christchurch East with his tweet, whether or not any of them actually saw it (or why else would he publish the message?) But I still think that a necessary element of the offence is that the message was in fact receivable by someone in that electorate - that Cunliffe has Twitter followers able to vote in the relevant electorate who actually got the tweet before he took it down.

(About here I'd appeal to the NZBORA: it can't possibly be a demonstrably justified limit on speech to make it an offence to tell people how you think they should vote when they aren't actually permitted to do so. So a reading of the offence provision that limits it to only those statements that can actually have the feared effect - interfering with or influencing voters at a given election - ought to be the preferred one.)

Now, a quick word about the above. It's technical legal analysis, carried out because that's what I do. I don't think Cunliffe should try to run it in court as a defence against any charge that might be brought against him, because even if he "won", it would look like he's slipped off the hook by a lawyer's cheat. So, if he is charged, I'd suggest he just plead guilty, seek a discharge without conviction (on the basis it was an error that was corrected as soon as he became aware of it), and at worst pay the few hundred dollar fine that may come his way.

That then brings us to the question - should Cunliffe be charged here? Well, let's assume the Police believe there is enough evidence for a conviction (they think they can show at a minimum that someone in Christchurch East saw his tweet). Equality before the law means that they should move quickly to bring the case before the courts, right?

Well ... maybe. But the problem here is twofold. First of all, prosecutorial discretion still has to be applied to Cunliffe (as it would to anyone else - because that's what equality means, right?) And if some other "ordinary" person with 6500 Twitter followers were to have done what Cunliffe did, would we be baying for her or him to appear before the courts to get her or his dose of medicine? Or would we think it an appropriate case for a stern lecture from the police and a "don't do it again" message?

Second, there's the somewhat awkward fact that the Police are still sitting on top of a whole raft of complaints referred to them by the Electoral Commission following the 2011 election - including a number of people accused of using Twitter and Facebook to publish messages intended to affect how people vote. So if the Police were to move with alacrity to charge Cunliffe, this actually would be "unequal treatment" when compared to others who have committed similar actions.

Please note that I'm not saying Cunliffe shouldn't be charged here ... I'm just saying that if he's going to be treated like everyone else, he won't be.

Comments (17)

by Graeme Edgeler on December 05, 2013
Graeme Edgeler

Police are still sitting on top of a whole raft of complaints referred to them by the Electoral Commission following the 2011 election - including a number of people accused of using Twitter and Facebook to publish messages intended to affect how people vote.

Police are not sitting on similar charges about people using twitter or facebook on election day in relation to the 2011 election. Any charge under section 197 of the Electoral Act relating to that election are now time-barred.

by Ross on December 05, 2013
Ross

I think Cunliffe would be silly to contest the charge...if there is one.

His tweet advised voters in Christchurch East to vote Labour. He wanted voters to vote and he wanted them to vote Labour. I don't see this as a deep philosophical question like whether a tree makes a noise when it falls with nobody in earshot.

by Steve on December 05, 2013
Steve

The problem for Cunliffe is he comes from a party that treats electoral law with contempt. e.g Mr Singh currently before the courts, the $840,000 of tax-payer money taken during the 2005 election,the exceeding of the spending limit in 2005 and the disgracefull electoral finance act.

by Andrew Geddis on December 05, 2013
Andrew Geddis

Police are not sitting on similar charges about people using twitter or facebook on election day in relation to the 2011 election. Any charge under section 197 of the Electoral Act relating to that election are now time-barred.

Even better!

Is it treating Cunliffe "equally" if he's the first person proscuted for tweeting, when similar referrals were ignored by the police?

 

by Graeme Edgeler on December 05, 2013
Graeme Edgeler

Is it treating Cunliffe "equally" if he's the first person proscuted for tweeting, when similar referrals were ignored by the police?

Someone has to be first :-) Maybe they'll treat him equally with all those who follow at the next election?

by Andrew Osborn on December 05, 2013
Andrew Osborn

Steve: You nailed it.

Their bed-fellows in the Greens think that committing an offence is a right of passage to membership.

 

 

by Craig Ranapia on December 06, 2013
Craig Ranapia

Is it treating Cunliffe "equally" if he's the first person proscuted for tweeting, when similar referrals were ignored by the police?

That's a fascinating argument - wonder if John Banks is kicking himself for not getting you on his defense.  Seriously.

by Darel Hall on December 06, 2013
Darel Hall

I'm pleased that Cunliffe hasn't outed a staff member as the author of the tweet.  He may have been the author but it seems such an obvious breach (to a lay person including his media staff) that he possibly wasn't.  

I hope he just pleads guilty and takes the rap.  Is any non-partisan voter really going to care?

by Rich on December 06, 2013
Rich

Are booksellers obliged to weed their politics sections before opening on election day?

There are surely many partisan books on sale that contain:

[a] statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote

I might file complaints against Whitcoulls and Unity Books, just to try and bring this daft law into more ridicule.


by Tim Watkin on December 06, 2013
Tim Watkin

Perhaps the biggest concern for Cunliffe in this is that he has only 6500 Twitter followers! I'm being flippant, but Graeme raises the interesting point about the potential to be retweeted. I wonder if anyone did that in the 10 minutes available, as that would obviously cause more problems.

Andrew, given there was a campaign on, I'd be surprised if one of those 6500 wasn't in Chch East... But there'd likely be very few, so while my gut (non-legal) immediately said of course it's "published", in practice it probably had no more effect than him saying the same thing to a (small) room of Labour supporters.

But here's a question: The tweet read: "If you are resident in Christchurch East don't forget to vote today - for Labour and Poto Williams."

What if he'd left off the last five words? Would it have breached the law?

by Tim Watkin on December 06, 2013
Tim Watkin

Craig, is Banks is the first politician ever to be charged with filing a false claim?

Steve, you're right that Labour has a poor track record on this. But there's plenty of scorn to go round – National's response to the MMP referendum alone is worthy of plenty, as is ACT's handling of the super city formation... Everybody pushes the envelope and my point was that I suspect there are other politicians who have in effect done similar to Banks without having the donor go public with a blow-by-blow account!

If Banks has simply replied "$50,000 would be really helpful, but there's a bit of a process involved in these things so I'll get someone to give you a call tomorrow to talk you through it" he'd never have come to this.

by Graeme Edgeler on December 06, 2013
Graeme Edgeler

What if he'd left off the last five words? Would it have breached the law?

No.

by Graeme Edgeler on December 06, 2013
Graeme Edgeler

If Banks has simply replied "$50,000 would be really helpful, but there's a bit of a process involved in these things so I'll get someone to give you a call tomorrow to talk you through it" he'd never have come to this.

It is Dotcom's evidence that nothing like this happened. Banks maintains that he had no idea that Dotcom donated anything.

by Nick Gibbs on December 07, 2013
Nick Gibbs

On the face of it, twitting on election day isn't the end of the world, but, I'm sure Cunliffe knew it was illegal and still went ahead. And politicans who make the laws but then decide that some of these laws don't apply to them is very tiresome. Good on the Electoral Commission for referring him to the police.

by Craig Ranapia on December 07, 2013
Craig Ranapia

Craig, is Banks is the first politician ever to be charged with filing a false claim?

Did I miss Labour's day in court over the pledge card fiasco, or National's blowing of the broadcasting cap?  I haven't heard anyone say its just not fair Banksie is being dragged into court while they walked.

by Bruce Thorpe on December 07, 2013
Bruce Thorpe

... have we got a legal definition of polling day?

Before the polls opened by some hours seems a bit of a stretch.

by Frank Macskasy on January 04, 2014
Frank Macskasy

I'm no lawyer, but isn't intent usually  considered before a prosecution is undertaken?

@ Andrew; Your reasoning is sound.

The best way I evaluate it is that I apply the same model against a candidate from an opposing Party (National, ACT, etc). Would I still be nodding in understanding and agreement if the case applied to one of their candidates?

If so, your point stands.

And I think it does.

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