KEYBOARD FRONTLINE POSITION STATEMENTS OF THE PROPOSED GUIDELINES ON ELECTION-RELATED ACTIVITIES IN RESPECT OF THE LEGISLATIVE COUNCIL ELECTION
A.
INTRODUCTION
1.
The Electoral Affairs Commission (“EAC”) released for public consultation the 2016 Proposed Guidelines on Election-related Activities in Respect of the Legislative Council (“LegCo”) Election, Keyboard Frontline (“KBFL”) submits this position statements to oppose the proposed guidelines under Chapter 8, in particular paragraphs 8.3 and 8.4. The proposed guidelines, while not promoting the fairness and honesty of electoral advertising, would restricts the netizens’ fundamental human rights, viz., freedom of speech and expression on the internet.
2.
In a nutshell, paragraph 8.4 of the proposed guidelines seek to regulate election advertisement (“EA”) on the internet. It stipulates that the following activities on the internet may amount to EA:(a)
posting a message published through internet platforms (e.g. websites, social media, communication networks, etc.) for promoting the election of a candidate/list of candidates or prejudicing the election of other candidates/lists of candidates is also an EA;
(b)
sharing or forwarding different candidates’ election campaigns through internet platforms for expression of views with the intention to promote or prejudice the elections of any candidates; or
(c)
sharing or forwarding the election campaigns of a candidate through internet platforms with the intention to promote or prejudice the election of a candidate or candidates at the election under the instructions of a candidate.
3.
Any costs incurred in the course of the aforementioned activities will be required to be included in the election expenses of that candidate.
4.
KBFL is of serious concern for such hasty guidelines because it may violate various international covenants which provide clear protection to the netizens’ freedom to express their own political opinion and freedom to determine their own political status in Hong Kong.
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B.
NETIZENS’ RIGHTS
5.
It is trite law that the basic law of Hong Kong ensure the continual application of the provisions of the International Covenant on Civil and Political Rights (“ICCP”) and the International Covenant on Economic, Social and Cultural Rights (“ICESC”) in Hong Kong.
6.
Under the ICESC Article 1 Paragraph 1, it states that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
7.
Article 2 Paragraph 2 of ICESC further states that “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
8.
Article 19 of the ICCPR, mirrored in the Article 16 of the Hong Kong Bill of Rights Ordinance, also guarantees that everyone shall have the right to hold opinions without interference and the right to freedom of expression which includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
9.
Article 27 of the Basic Law of Hong Kong provides protection of freedom of speech, of the press and of publication of all Hong Kong residents as well.
10.
It is clear from the aforementioned provisions that netizens of Hong Kong are protected under various international covenants and local laws in determining our political status and expressing our own political opinion in any media of our own choices.
11.
Undoubtedly, the social media and internet are powerful platforms for all forms of communications. However, a netizen sharing his own opinion, a news or publications of a candidate on the internet is no difference from an individual going on the street to speak and chant for any candidates or passing around a print copy of the election materials to his friends on his own initiative. It is not only impractical for the candidate to monitor or report these kind of self-initiated activities but also impossible to calculate or estimate the costs of such activities. Likewise, if such real-life activities do not constitute an EA, the same activities on the internet should be treated equally and not be regarded as an EA of a candidate.
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C.
OBSERVATIONS IN OTHER JURISDICTIONS AND HONG KONG
12.
With reference to the Information Note of the Regulation of the Use of the Social Media in Election in Selected Places prepared by the LegCo Secretariat Research Office, namely the United Kingdom, New Zealand and Canada, we have the following observations:(a)
In the three selected places, they all distinguish the activities in election between the individuals and the groups;
(b)
For individual, all three jurisdictions allow individuals to promote, procure or prejudice the election of a candidate. In UK, individuals may incur expenses up to a threshold to conduct national-level election campaign. Exceeding the threshold and failure to report the spending will attract criminal liability on the individual. In New Zealand and Canada, both provide express exemption on the individual to express his own political views; and
(c)
For groups or organisations, all three selected places impose more requirements if they are involved in activities that promote, procure or prejudice the election of a candidate. In both UK and New Zealand, if spending is above the threshold, both individuals and groups are required to obtain authorisation of the candidate and the spending will be calculated as a part of the expenses of that candidate; whilst there is no such requirement to obtain authorisation from a candidate in Canada. However, if the spending exceeds the threshold, one must still register and declare it to the Elections Canada.
13.
It is our observations that the exemptions to an individual to express his own political views is absent in the proposed guidelines by the EAC. Furthermore, there is no distinction between an individual and a group when engaging themselves in election campaign. Lastly, there is no clear guidelines on third party’s spending or mechanism for a third party to register or report to the EAC.
14.
Due to the observations in the preceding paragraph, it is impossible and impractical for a candidate to find out a third party who has incurred expenses for an election campaign activity and make an accurate report to the EAC. Worse, violation of the proposed guidelines may attract criminal liabilities on individuals, organisations or the candidate. It will certainly create a chilling effect in Hong Kong.
D.
RECOMMENDATIONS
15.
Accordingly, Keyboard Frontline urges the Electoral Affairs Commission to:(a)
distinguish individuals’ activities in promote, procure or prejudice a candidate in an election from activities of a group or organisation;
(b)
provide clear exemption to an individual to express his personal political views in all formats and media from the EAs;
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(c)
provide clear spending threshold for individuals, groups or organisation how much spending one single campaign activity may incur during the LegCo Election. The spending threshold must be reasonable that it does not affect the freedom of speech and expression of individuals, groups or organisation;
(d)
require no authorisation from a candidate if the campaign activities are below the spending threshold; and
(e)
establish systematic registration and reporting process for individuals, groups or organisation if the spending exceeds the prescribed threshold.
E.
CONCLUSION
16.
The impact of the proposed guidelines issued by the EAC is so far reaching that it affects not only the coming election of the Legislative Council but our usual habits and behaviours on the internet during the period of the election.
17.
It is about our constitutional rights to hold our political views; It is about our freedom of expression; It is our freedom of speech; Last but not least, it is about defending the freedom of internet that we must stand up to demand the EAC to take appropriate measures to safeguard before imposing any new requirements hastily.
Submitted by
KEYBOARD FRONTLINE On 1st April 2016
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