Cunliffe's folly

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 on election day would be published, but that same statement on 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.