Who will be the first blogger that Winston Peters puts in jail?

Are you a blogger who knowingly writes lies about your political enemies/friends in an effort to sway how people vote? Winston Peters has just won a court case that could see you get jailed for up to 2 years.

The High Court has just handed down a pretty interesting decision that is possibly important for how political commentary can take place in New Zealand, and for the blogging community in particular. It involves Winston Peters and the Electoral Commission, so naturally it's called Peters v The Electoral Commission. (You can get a pdf copy of it from the "Decisions of Public Interest" site here.)

What was Peters fighting about with the Commission this time? Well, it involves a couple of ads made by the ACT and Conservative Parties before the last election that Peters thought deliberately misstated NZ First's views/policies. These ads were made public some days before polling day and Peters complained about them to the Electoral Commission and the Advertising Standards Authority, the latter of which actually upheld the complaint against the Conservative Party's message. However, despite Peters' complaints about their inaccuracy, both ads remained available on the respective parties' websites right through to polling day.

So Peters asked the Electoral Commission to refer the matter to the Police on the basis that continuing to make the ads available to the public constituted a "corrupt practice" under the Electoral Act 1993, s.199A:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

Peters claimed that his opponents' ads said things about him and his party that they knew were untrue, that these things were said to influence the voters and that by leaving the ads on the web through to polling day the parties were "publishing" them. So he wanted the Commission to go to the Police and tell them that it believed an offence had been committed against s.199A - which is a reasonably serious matter, carrying a potential fine of up to $40,000 or 2 years imprisonment!

(Note - Peters didn't have to get the Commission to report the matter to the Police. He could have just gone to them himself with his complaint. But given how generally disinterested the Police are in pursuing alleged electoral offences, he wanted the Commission's opinion to buttress his allegations. Plus the headline "Commission refers ACT and Conservatives to the Police" is good in itself!)

However, the Commission turned Peters down on the grounds that, irrespective of whether the ads were knowingly false (something it didn't look at), it did not believe they had been "published" within the 2 day pre-polling day window. The Commission's understanding of this word is that the false statement of fact must newly appear during that period, so a continuing publication on the internet of a false statement of fact that first appeared days earlier doesn't count. Therefore, the Commission said, the elements of the offence haven't been met.

I have to admit that's how I'd have seen things, too. On this reading, s.199A is there to stop someone introducing a new claim that they know to be bullshit into the electoral discourse so late in the piece that the usual "marketplace of ideas" can't respond to it. That's a bad thing, because it may result in voters choosing their representatives on a completely false basis, thus distorting the electoral process and its outcome. But if the bullshit claim is made before the last 2 days of the campaign, then we can have faith that it will be checked out and exposed for what it is by the normal process of public political discourse, thereby removing the risk that it poses to the electoral process. So there's no need to criminalise false statements of fact first made public before this narrow temporal window.

Peters (and his longtime lawyer/bag man Brian Henry) thought differently, however. They went to the High Court and asked it to review the Commission's understanding of the meaning of "publish", arguing that it correctly should be read to mean something like "is visible to the public" during the relevant period irrespective of when this first happened. And the High Court agreed with them, ruling that the ongoing appearance of the ads on the ACT and Conservative Party websites constituted a "publication" in terms of s.199A that took place "in or in view of any public place".

As it happened, the High Court then didn't order the Commission to do anything about Peters' original complaint - he himself had told the Court he didn't plan pursuing the criminal complaint any further. It did, however, issue the following declaration (which functions as a determinative statement of the legal meaning of the provision in question):

I make an order declaring that the Electoral Commission’s view, as conveyed in its letter to counsel for Mr Peters on 5 November 2014, was an incorrect interpretation of the law.  It was incorrect because s 199A applies to statements on the internet on polling day or on the two days preceding polling day, whether they were first placed on the internet at that time or were first placed on the internet at an earlier time.

And here's where things get interesting for everyone who comments on matters political, and the blogging community in particular. During the election campaign it is not unknown for commentators - and certain members of the blogosphere in particular - to make "statements of fact" about parties/candidates that they have reason to think aren't exactly correct. And they do this for a reason, to hurt their political enemies and help their political friends by trying to influence how the people reading their commentry might vote. Then, even if called on their bullshit and proven to be wrong in respect of their "statement of fact", said commentators don't retract or remove their false claims but instead cheerfully leave them on their websites through to polling day and beyond.

Well, guess what? According to the High Court in Peters v Electoral Commission, by doing so those commentators are committing a corrupt practice irrespective of when they first posted their false claims. It's not enough to avoid deliberately lying online about your political friends/enemies just in the last two days of the election campaign. Instead, if you do it at any time (with the intention of swaying peoples' votes) and then leave it up on your website through to polling day you could be fined up to $40,000 or jailed for up to 2 years!

Which is, I venture, going to prove to be more problematic for some websites than others. Assuming that the understanding of the law stays the way it is laid out in Peters v Electoral Commission. Because I wouldn't be at all surprised if the Commission appeals this decision, given the potential reach it now gives to s.199A. And I also don't rule out a change to the statute to make it clear that Parliament simply didn't mean the law to have this outcome. Because I really don't think that it did!

One last little footnote to this story before I finish up. I've suggested that the purpose of s.199A is to stop last-minute ambush lies distorting people's voting choices. But why was it ever thought to be a necessary addition to our electoral laws in the first place? That was a question then-National MP Alec Neil asked back in November 2001 when the law was first proposed, during the Committee Stage debate in the House:

I also ask the Minister---and I am quite serious about this---whether [s.199A], which includes a provision about publishing false statements to influence voters, was specifically inserted because of what happened in Tauranga involving the member of Parliament for Tauranga, the Rt Hon. Winston Peters. Two days prior to the [1999] election, Winston Peters stated that Work and Income New Zealand had purchased something like 13 Mercedes-Benz motorcars, that he would produce proof to show that Work and Income New Zealand was out of control, and that that type of expenditure was unnecessary, unapproved, and corrupt. Unfortunately, it was never proved.

Yep. That's right. The law that Winston Peters tried to use against his political enemies at the 2014 election was quite possibly put onto our statute books in order to guard against people like ... Winston Peters.