I had been contemplating writing some posts about the South Australian election, coming up on 20 March.
But it seems that if I am to do so, either on Larvatus Prodeo, or on my own blog, I must publish my full name, and my post code. That’s what section 116 of the Electoral Act 1985 (South Australia) says. Check the story in The Advertiser.
This law change came into effect on January 6 this year, and was pushed through last year as part of a suite of changes to the Electoral Act. The opposition Liberal party supported the change.
Here’s the relevant piece of legislation.
116—Published material to identify person responsible for political content
(1) A person must not, during an election period, publish material consisting of, or containing a commentary on, any candidate or political party, or the issues being submitted to electors, in written form, in a journal published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material or the programme in which the material is presented contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of the material.
Maximum penalty:
(a) if the offender is a natural person—$1 250;
(b) if the offender is a body corporate—$5 000.(2) This section does not apply to—
(a) the publication in a journal (including a journal published in electronic form on the Internet) of a leading article;
(b) the publication of a report of a meeting that does not contain any comment (other than comment made by a speaker at the meeting) on any candidate, or political party, or the issues being submitted to electors;
(c) the publication in a journal (including a journal published in electronic form on the Internet) of an article, letter, report or other matter if—
(i) the name and address (not being a post office box) of a person who takes responsibility for the publication of the material is provided to the publisher of the journal and retained by the publisher for a period of 6 months after the end of the election period; and
(ii) the journal contains a statement of the name and postcode of the person who takes responsibility for the publication of the material;
(ca) the publication of a letter (otherwise than as described in paragraph (c)) that contains the name and address (not being a post office box) of the author of the letter;
(d) a news service or a current affairs programme on radio or television or broadcast on the Internet;
(e) any other prescribed material or class of material.(3) In this section—
journal means a newspaper, magazine or other periodical.
I’ve long blogged semi-anonymously, but you could find my full name if you tried a little. But why on earth should I reveal my postcode, just in order to make a comment on an election?
I feel silenced. So much so that I am reluctant to comment on this story, other than to let you know about the issue. It’s not an election issue, not something that is about ” the issues being submitted to electors” because as far as I know, this issue wasn’t placed in front of electors at all, other than through normal parliamentary legislative procedures. Even so, I feel concerned that if I speak too loudly, I could be targetted by our parliamentary overlords.
You may not hear much from me about the South Australian elections after all.
Elsewhere [by Mark]: Hendrik Gout in Crikey on Democracy, South Australian style, Andrew Bartlett at The Stump.
Elsewhere [by Mark]: Nic Suzor, who’s a lawyer, has a look at the provisions at Electronic Frontiers Australia.
Update: [by Mark] Policy backdown by Tweet:
@PremierMikeRann AG has listened. So no debate will be stifled. No political censorship of blogs or online comments whether named or anon
And the Attorney-General has promised to retrospectively repeal the law insofar as it applies to internet comment.
As far as I can tell, the writ for this year’s election has not yet been issued, so we are not yet within the election period. So we are not covered by this law, yet.
“election period, in relation to an election, means the period commencing on the issue of the writ for the election and expiring at 6 p.m. on polling day;”
We’re free for now Deborah! I know better than to make any sort of negative comment with my full name and postcode during this election campaign as I live in Atkinson’s electorate. I will have to be silent during the campaign because I just can’t afford to be sued.
This is disgraceful. While one might be willing to put one’s real name (as I do) on blogs and blog comments, or be willing to put one’s e-mail address on one’s blog (its nice to hear from people who read yer blog), putting a residential address on line is just not on. You never know what political nutters are likely to come round and raise havoc in the middle of the night.
This ;aw is clearly an attempt to stop electoral comment, with an implied threat of legal action against people making comments pollies don’t like.
Some laws deserve to be broken. This is one of them.
All laws affecting the civil rights of citizens should subject to referendum.
I think I might break it, just to see what happens.
B-B-But, I thought this was a democracy!
No, Chav. we think it is a democracy, but that doesn’t make it a democracy. Despite all the political propaganda I don’t think I’d be far wrong in saying politics in Oz has ALWAYS been resolutely anti-democratic since 1788.
I just heard Atkinson on the radio. He said something to the effect of, “We need to know who is making statements, so that we know who to sue.”
The single most blatant abuse of power in this country since Joe BP banned gathering in groups. I don’t see a parallel law coming in that makes it illegal to treat someone differently in the workplace because you’ve discovered they don’t share your political views.
The current government members don’t seem to be shy about suing people either so its not an idle threat by Atkinson. It feels like its almost becoming part of the political process in SA.
Need some education for the general population on how to use anonymising proxy servers. Will just have lots of people from overseas commenting on websites
Surely you’re a “a news service or a current affairs programme” aren’t you Deb?
So if I have a meeting with my dog about the local candidates and publish a report on what I said in the meeting, it’s all ok?
As far as I am aware, Deborah, you can make statements for all you are worth as long as it is absolutely clear that the statements are your belief and/or opinion rather than absolute fact (proven or unproven). Or am I wrong about this?
This is law is probably unconstitutional as a restriction on freedom of political communication, and is almost certainly unenforcable.
I hope it will be tested in the courts, perhaps by bloggers australia-wide acting together, may the force be with us…
The authorisation laws to be found in all federal, state, and territory electoral acts (although, to the best of my knowledge, no other parliament, bar SA, has yet been stupid enough to extend these laws to the internet) were designed back in the nineteenth century in england (and adopted here) to ensure that political candidates from the ruling classes could not be criticised by the great unwashed in any manner that the courts might deem defamatory.
No nasty political comment could be made, especially in those scurrilous street pamphlets that transported many of our convict ancestors to these fatal shores, without the author and publisher being named, thus allowing the plod to find, collar and present to the beak the unruly and disrespectful outspoken.
Make no mistake, the electoral authorisation laws are there to protect political candidates and political parties from you and your big bully mouth. You must be nice to these fragile and frightened souls, and to make sure you know your place, you must identify yourself whenever you presume to speak about them, under threat of being hauled before the courts.
That is, of course, assuming the police can find you. I wonder whether the SA police been handed sufficient funding to enforce this law, including tracking down all those bloggers from all over australia who will comment on the SA election anonymously, not to mention bloggers from any other country on this planet?
@BilB The law prohibits me from making any comment on the election, unless I publish my full name and post code. So I have to think about the risk of people identifying exactly who I am and where I live, and consider whether or not I am vulnerable to some form of attack, before I publish anything. More than that, Adelaide is a small town. It’s entirely possible for pollies who don’t like what I say to just make things a little difficult for me – a quiet word in the ear of potential employers and city councils, should I ever want a new job, or planning permission, or whatever. Then there’s just the risk of being sued. That’s all in addition to the $1,250 fine.
A little far-fetched maybe? But the Premier is currently suing Channel 7 and New Idea over the stories they published about Michelle Chantelois, and it’s hard to read his action as anything other than an attempt to shut them up. It’s about dignity, says Rann.
Agreed Paul, I think the law should be broken.
So we can comment on this crazy law and criticise it as much as we like but can’t comment on the pollies who actually made the law. Hope it is tested in court.
Why this hasn’t been front page on the Advertiser before today? Too busy pushing whatever agenda they have for the week?
Atkinson has been unable to come up with any rational justifications that support any of his controversial positions in the last year – and that the Liberals simply agreed to and have been unable to make any political capital on this is embarrassing.
Wow, that law stinks. I can understand its intent is to prevent anonymous smearing in the run up to an election, but the restriction it places on ALL debate, fact based or smear is huge.
It leaves the only “people” allowed to potificate on an election the big media outlets. Putting old media back in the drivers seat.
Shades of “it the Sun wot won it”…..
http://en.wikipedia.org/wiki/It's_The_Sun_Wot_Won_It
I’m confused. Is this any different than the requirement to authorise electioneering material that you get through your letterbox? Or does it go further?
sr@21: its the same law (s 328 federally, for example), but the SA Parliament has foolishly extended to the internet, effectively making it impossible to police, and highlighting the real purpose behind such laws, which is to protect candidates from any possibility of anonymous defamation during an election period…
Deborah, I think that there is a technical difference between a “comment” and a “personal opinion”.
comment
1. a remark, observation, or criticism: a comment about the weather.
2. gossip; talk: His frequent absences gave rise to comment.
3. a criticism or interpretation, often by implication or suggestion: The play is a comment on modern society.
4. a note in explanation, expansion, or criticism of a passage in a book, article, or the like; annotation.
5. explanatory or critical matter added to a text.
6. Also called rheme. Linguistics. the part of a sentence that communicates new information about the topic. Compare topic (def. 4).
opinion
1. a belief or judgment that rests on grounds insufficient to produce complete certainty.
2. a personal view, attitude, or appraisal.
3. the formal expression of a professional judgment: to ask for a second medical opinion.
4. Law. the formal statement by a judge or court of the reasoning and the principles of law used in reaching a decision of a case.
5. a judgment or estimate of a person or thing with respect to character, merit, etc.: to forfeit someone’s good opinion.
6. a favorable estimate; esteem: I haven’t much of an opinion of him.
A comment say that “this is” an opinion says tha “i believe that this is”
I do not think that the wording of athe act above covers personal opinion, published or otherwise. But the wording for an opinon has to be very clear.
I’m no lawyer so I may be wrong about this.
Can any lawyery types clarify (in a non-advisory sense, of course) as to who is the relevant ‘publisher’ of material, and whether there is any prospect of an implied right in the Commonwealth constitution being the basis for a challenge to SA law?
This was enquired into at the federal level by the Joint Standing Committee on Electoral Matters after the 2004 election. They found:
And it is worth noting that this 2004 committee recommendation (when the Howard Government had the chair) was never followed through into law…
I guess if you were to obey this stupid law then not only would the author of a blog post have to state their name and address, but so would all of the commenters.
Not only does this law undermine free speech, it also undermines the integrity of democracy in South Australia. If you can’t have a free debate around an election, it is not a free election.
This law reminds me of Singapore, where the ruling party stifles dissent through sueing members of the opposition. What a disgrace.
I find it hard to believe that a section of the ALP wants this enshrined in law.
It would be effective though. It would stop me posting totally. (I’m already wary after being contacted privately a few years ago and told to apologise on a forum about saying nasty things about Bush.)
I’m not surprised at “name and shame” campaigns from the right (witness the prominent unmasking of a left wing blogger a few years ago with people encouraged to email his employers.)
But from the ‘left?’
I’ll be forced to vote Green by the time this lot are through.
In my opinion, the main effect of the electoral authorisation laws is to chill free-wheeling criticism of candidates, under threat of expensive common law defamation proceedings. And we all know how keen pollies are to shop for defamation damages at the drop of a hat.
I am assuming that the application of the SA authorisation law to the internet (extending its reach way beyond what is sensibly enforceable, and bringing to light the possibly oppressive nature of these laws) could be challenged all the way up to the High Court on constitutional free speech grounds, and it would be interesting to see whether Howard’s conservative appointments to that bench would uphold the implied freedom of political communication found in the Constitution by the Mason Court all those years ago.
The only time I am aware of any electoral authorisation law actually making it into court in recent times, was when Jackie Kelly’s husband was successfully prosecuted under section 329 of the Commonwealth Electoral Act (misleading and deceptive advertising), and coincidentally under section 328 (proper authorisation), for distributing anti-muslim pamphlets under cover of darkness in the Division of Lindsay at the 2007 federal election. That incident only came to light, and prosecution followed, because the perps were photographed on the job and their mugs subsequently plastered all over the front pages of the newspapers.
I agree that the current law is steeped in 19 century ideas of control. Why should we apply what already stinks to what will be, (if not already) the premier method of communication, thought and dissent in the 21st century.
I once wrote to the editor of the Australian. My letter was published with name and suburb. It was on a particularly contentious political issue at the time. It took 2 minutes for every crackpot from around Australia to find my phone number in the white pages and call me. Easier now that it is online. Two days later, someone set my brush fence on fire. And you guessed it, the arsonist didn’t leave his name and postcode!
Indeed.
Without wishing to overdramatize the seriousness (or discuss the details) this has been an issue for LP authors in the past.
Wow, and I thought Queensland was the place democracy went to die …
At the risk of invoking Godwin: Croydon is an uber-safe seat for labor, (memo for all intending tyrants: give the chief law-maker gig to someone in a very safe seat) as would naturally be all the seats along Port Road. In the absence of extraordinary candidates and campaigns, it’s not likely there’s going to be a green’s or independent’s renaissance there ( Are there any leafy lifestyle suburbs in Flatland? ) whereby the citizens say enough, and toss Atkinson out on his hubristic ear, while remembering that the libs supported the legislation and not worthy of a vote either.
Then again maybe they are just hopeful of a vast new revenue stream for treasury, monetising the flood of dissaproval via the fines. Fiendishly clever.
tssk, I take it you don’t live in SA, or you would be well aware of the nature of the main faction controlling the SA ALP, of which Atkinson is merely one odious example.
So is a blog or forum an “other periodical”?
Liam – yes.
Loophole found, nothing more to ponder about this retarded legislation.
Trouble is, dj, notwithstanding Atkinson’s (and others) unloveliness, the other lot would be even worse. Cast your mind back to the way they asset-stripped the State last time they were in office.
What’s the state of play in other states and Federally with regard to blogger anonymity?
Quick question: if the “broadcast on the internet” were to take place in another jurisdiction (e.g. an Adelaide resident blogging on servers in the USA) would the law still apply? Deborah’s blog appears to be hosted in Texas, on a domain registered in California:
Oh dj…I’m very aware of SA. As someone who likes to play the odd video game I could hardly be unaware of SA.
Exactly, fmark. And owners of their own domains already either have to publish or at least provide an address to their host, so they’d hardly be in breach of the laws even if they used an SA-owned and located server. I mean, if Dreamhost or Bluehost or whoever “publishes” your blog have your address, there you are.
It’s a stupidly worded law but the SA police are hardly about to morph into the Committee for State Security.
…
Atkinson has a point about news limited’s comment streams, BTW.
LP and other blogs routinely delete defamatory or sock-puppetted comments. Why shouldn’t newspapers have do the same?
Quick answer, see Gutnick v Dow Jones
Yes, as I understand it Australian courts have held that ‘publication’ occurs where the material is downloaded/read, not where the web servers are physically related.
OTOH I’m not sure whether the courts have held that individual authors are the ‘publishers’ of material on the internet, hence my request for clarification above.
1250.00 for expressing an opinion…? geez, it’s only $20.00 for failure to vote in SA…[actually the fine for not voting is $10.00 + the victims of crime levy of $10.00]. It’s almost like they are trying to get people to disengage with politics….oh wait.
I didn’t vote last time, partly because I wanted to see how effective they were in policing that – it’s quite effective! I’m happy to test the effectiveness of the new laws when they come into effect [I'm guessing it would be impossible to police]…I might start a blog dedicated to monitoring and ‘opinionising’ about the bombast and belligerence of Michael Atkinson, MP. hehe.
States like Iran, that try very hard to limit the freedoms of it’s citizens, have not succeeded in doing so. Iranian citizens embraced Twitter because mobile phone technology can not be so easily censored, or shut down. It is virtually impossible to shut down free-speech. What’s more amazing to me, is that given this reality, how few people actually dare to speak up about the things that concern them. Even without these laws, it’s rare to hear much dissent in South Australia. I’ve always felt like an outsider here, so I don’t mind owning my opinions, I don’t use my real name online simply because I find the search-ability of the internet a wee bit creepy.
[My residential postcode is 5170].
Well yes, grace, but you can defame someone without being a publisher—just speaking into a microphone works too, as Ian Cohen the NSW Green found out when he accused a developer of corruption in a public meeting. Communication isn’t the same thing as publishing.
I’m not sure that’s relevant. The Gutnick ruling directly addressed the question of where the act of publication took place.
I can see merit in a law that requires people to be identified if they publish material purporting to be factual; otherwise the road is open to political operatives to circulate the most fantastic lies anonymously (or perhaps more dangerously, plausible lies). I can’t think of any reason to prevent anonymous commentary and opinion. Obviously there are potential fuzzy lines between fact and opinion but that’s why we have courts – similar issues arise in defamation cases.
In the nature of things however I think people who publish anything online have to anticipate that anyone who is determined enough will be able to find out who they are. I’m not sure this is altogether a bad thing. The consequences of a public forum where anyone can say anything they like are all too obvious if you look at some of the crazier US blog threads.
I’ve also experienced serious personal consequences from publishing opinions on my blog but I think people just have to accept those risks as part of the price of expressing contentious opinions. If you do it verbally in a public place you risk copping physical assault; if you do it online you risk other unpleasantness. Magistrates, police officers, teachers, media personalities, Centrelink staff and numerous other people live with the risk of attracting retribution for their public behaviour all their working lives and anonymity is not an option. In a perfect world it wouldn’t happen but it’s not a perfect world.
That’s not really the point, Ken. Anything you write is already subject to the law of defamation. The difference here is that a specific law has been enacted which will have the effect of chilling political speech.
Yes, let’s not confuse this with the defamation law, which the internet is already subject to. This is something completely different.
This law should not just be broken: it should be broken en masse, in public, outsdide parlimanet house, in their faces, constantly, from the issue of the writ, till election day.
The f*cking hide of these people! Make them eat it, Adelaide!
Yes I know Mark – I agree with the law to the extent it requires disclosure of the identities of people making claims of fact. I disagree with it otherwise. I don’t think my limited requirement will ‘chill political speech’ although it might inhibit deliberate lies and reckless indifference to the truth, which IMHO would be a good thing.
But, in actuality, Ken, litigating over what constitutes ‘a claim of fact’ is another can of worms. I can’t see any justification for this at all. It seems to be part of a very draconian and authoritarian attitude prevailing among the Labor government in SA – Atkinson has huge form, and Rann is notoriously litigious. The difficulty with this sort of law is that there’s always an imbalance of power between those who seek protection and those who wish to comment – Joh B-P was notorious for using publicly funded defamation actions to silence, intimidate and in some cases, bankrupt critics of his regime.
Atkinson:
[ahem]
With respect,if Ken Lovell’s comment isn;t the point, then what *is* the point?
I really have trouble seeing a chilling effect here. I mean, I’ve made the decision to always post under my real name and I’ve been a ‘public figure’ at election time, so maybe I would say that.
There’s good reasons for saying ‘never talk about religion or politics’ and it’s always been an area where you take your chances (so try to pick your audience). If you believe something strongly enough to say it out loud, stick your name on it.
Taking the converse, you’d prefer a system where anonymous shit-sheets are the norm?
d
Darryl, just reading the section of the act Deborah has quoted, it would appear to require us, for the sake of argument, to collect (and retain for six months) the name and postal address (“not being a post office box number”) of anyone who makes a comment here on LP about the SA election.
We don’t have the resources to do that.
And a lot of people wouldn’t want to supply their name and postal address.
There’s your chilling effect.
Mark I know the argument is not all one way. However we’ve seen in the US how bald-faced lies can become widely accepted as true when they are repeated often enough (Obama is a Muslim for example). Maybe we just have to put up with this as the price of free speech but it would be nice to think some more balanced position could be found.
Wait, so this is an attempt to legislate the difference between blogs and commercial media “blogs”?
Maybe I’m all turned around on the issue…
It seems that way to me, FDB, in effect, if not in intention.
I’d repeat the point that a reading of the section would make it impossible for LP to comply. So, Darryl and Ken could write letters or comments to the Advertiser or the Australian to their heart’s desire, because News Limited has the resources. I’d have thought the implications for political debate are stark and obvious.
Mark – you might have missed the bit in Liam’s link where Anderson says it “will only apply” to commercial news outlets’ “blogs”; presumably the implication is that private citizens with web pages can say whatever the hells they like within defamation constraints.
Mark, all we have to do is avoid discussing the SA election.
(I don’t even want to think about it – each of the alternatives is equally horrible, and the only thing keeping me interested at all is the possibility of a second Green in the upper house.)
@61, but what exactly is that supposed to mean, FDB? The Attorney-General is promising that he’ll only apply the law to newspapers, despite what the law *actually says*?
Elsewhere [by Mark]: Hendrik Gout in Crikey on Democracy, South Australian style, Andrew Bartlett at The Stump.
Lefty E @ 50, I’d love to see that happen!
…but this is Adelaide. Reading Deborah’s comment about the small-town-ness is depressing, because it seems many do think that freely expressing an opinion might get you in trouble. I’m surprised by that, for me it’s a matter of personal privacy, than fear of repercussions over my opinions. I wonder what form the expiation notice will take? If it’s like the voting one it might be something like this:
Our records show that you have expressed an opinion about the South Australia election. Section 116 of the Electoral Act makes the expression of an opinion an offence.
The fine for breaching Section 116 of the Electoral Act is $1250.00. If however, you have good reason for expressing an opinion the Electoral Commissioner will take this into account and may consider waiving the fine.
“@61, but what exactly is that supposed to mean, FDB? The Attorney-General is promising that he’ll only apply the law to newspapers, despite what the law *actually says*?”
Well yes, it sounds a lot like the aftermath of the WA hoon law brouhaha, where someone has to front the press and tacitly admit that they’ve gone and enacted legislation that’s stupid, messy, unenforceable, contrary to well-established common law principles &c &c
In other words, he’s publicly providing a basis for successful appeals by private bloggers, just in case any are charged by coppers who stupidly interpret the law as written. This apparently is preferable to just admitting that the law as written is utterly daft and redrafting it.
Eeek! Mark, the photo in that link….!!! Noone needs to say anything more about the man, really – just post that photo. *shudders*
A law that enforces the personal identification of political commentators imposes on the natural rights of those in a democracy to freely discuss and debate the relative merits of political figures. In today’s information age, publishing one’s personal details in association with political commentary opens one to attacks of all kinds. I should know. During the mid 90′s, I was a major opponent of the rising One Nation Party and Pauline Hanson. I accompanied all of my posts with information identifying me, and the result was that One Nation’s lawyers wrote to my university to try to silence me by claiming my use of university computers for political commentary was inappropriate use of university resources. They also threatened to write to the Law Society to oppose me being admitted to the Bar, should I have wanted to take that career path.
Today, there are all manner of whackos that would almost certainly resort to underhanded methods like these – and perhaps even go further. Who wants to have randoms turning up at their house at odd hours for goodness knows what reason, just because they were required to provide their full name and postcode for legislative reasons?
If I were to participate in political commentary again, I would certainly prefer to avoid providing personal details at all costs, to prevent my opponents from resorting to underhanded and devious methods to try to silence me.
This law is bad. In a healthy democracy, the law should encourage citizens’ participation in healthy debate – not put in place requirements that make us fear it.
@66, perhaps so, FDB, but presumably also if someone made a complaint regardless of his view that it only applies selectively, that would have to be acted on? I also assume that South Australia has an independent electoral commission, whose job presumably is to enforce the law as written, not as spun by the A-G when it blows up his face…
“I’d repeat the point that a reading of the section would make it impossible for LP to comply.”
Maybe you could just stop recording our email addresses and take our real addresses instead? :^P
“So, Darryl and Ken could write letters or comments to the Advertiser or the Australian to their heart’s desire, because News Limited has the resources.”
OK. So I still have an outlet for my half-baked and ill-considered ravings. So where’s the chilling effect if I shift to commenting on Andrew Bolt’s blog?
I do think this law is dumb and should go because it’s more-or-less unenforceable and operates at the whim of government. But I don’t think I have an in-principle problem with requiring people making comments to put their name to their comments.
d
d
That’s a different issue, though, Darryl.
And one on which we disagree. I can think of lots of good reasons why people might not want to put their names to comments – the concerns cited among commenters here about retaliation being just one. People who’ve run and participated in anti-racist sites have been subjected to vile threats in this country over the past few years, for instance, to my certain knowledge.
And as Rob remarked, some of us have been the subject of threats of assault, too, among other things. Not to mention attacks on professional reputations in forums with a larger audience than this one…
Well that was my question at #35. AdelaideNow is, and so probably is Crikey, but can anyone speculate about whether blogs like LP (let alone twitter feeds and facebook walls) are “periodical” for legal purposes?
It’s a bad law because what it actually says is very unclear.
I would imagine LP probably is, Liam, given that it has content updated periodically?
It doesn’t seem well drafted, to be sure.
Hey that’s a good idea, let’s enact all sorts of draconian laws but not worry about it since the politician responsible for enacting those laws says that they won’t be inforced in the way they were drafted.
Sounds like a good plan if you believe in the tooth fairy.
Exactly, adrian.
I think ‘periodical’, for legal purposes, would require a specific periodicity.
But the very fact that intelligent and informed people (reasonably so, at least… *winky face*) can speculate about what the fuck the law means should be enough to show that it’s worthless and won’t be enforced.
If it were enforced, the same questions we’re asking here would be asked in court, and the judge would have to throw the whole thing out, surely.
Perhaps I have too much faith in the courts.
Most complaints regarding publication of material never get to court, FDB, because it’s so expensive to defend them.
Can you imagine the costs and logistics of defending an action brought against us in an Adelaide court?
Not to mention the fact that because LP and its writers and commenters have no corporate status, everyone would be individually liable for costs.
Cripes! If you had me in your sights Adrian, then be it known I have nothing but contempt for governments who write legislation without thinking it through.
It’s the worst symptom I can imagine of the growing obsession with the 24-hour spin cycle at the expense of good governance.
At the same time, it reminds me of iSnack 2.0 – in the sense that I’m left wondering why there wasn’t somebody, at some point along the way, who pointed at the thing and laughed openly at its patent folly.
Quite, FDB. A threat that can’t be carried out isn’t draconian slippery-slopery, it’s just noise.
The appropriate reaction to law like this is derision, and the hope that the SA Government can hire some better drafting counsel, not to feel silenced and wonder when the Hindmarsh Street Stasi will kick the door in. (I imagine, from my experiences in SA, that they’d turn up between the hours of 10am and 3pm, knock, and a issue a $3.50 fine payable in instalments).
Now, the desire of the modern press gallery to act not just as observers but as participants in the political drama, and their willingness to go out and get scalps—as they tried to by publishing Michelle Chantelois’ allegations about Rann without fact-checking—that’s a matter of concern. I hope Rann gets rich in an out-of-court settlement.
“Can you imagine the costs and logistics of defending an action brought against us in an Adelaide court?”
I can, and I’d be happy to chip in.
Point taken though; not everyone has a large and supportive readership, and many would fold and delete/retract publicly anything they were asked to by a lawyered-up complainant.
I’m for LE’s suggestion to flout this relentlessly and make any legal action seem as ridiculous and pointless as it is.
Hindmarsh Square, rather. With its famous statue of Feliks Rundlezhinsky.
Where does the jurisdiction for this law end, Mark? If it is a state law it has no relevence to people outside the state, or is there some federal agreement on such matters? What of international comment? Is Austrlia’s porn shield going to have an election equivalent?
Well nobody knows if this law can be enforced or not since it has yet to be tested in court.
Anybody who is happy to provide their full name and address when posting please do so.
“Anybody who is happy to provide their full name and address when posting please do so.”
Why?
Liam @35 and @73: My short answer – I don’t think LP can regard itself as a journal.
My reasoning: IANAL, but the way I was reading section one was:
publication in a journal published on the internet or publication on the radio or publication on TV or publication on the internet (i.e. blogs etc).
Then we get a further definition in section 3 of journal as “a newspaper, magazine or other periodical.” I thought that applied only to the first item in the list in section 1 i.e. publication in a journal.
So then we have to ask whether LP fits under the rubric of a periodical. When I saw the list, “newspaper, magazine or other periodical”, I took that to mean any publication that is a like a magazine or newspaper, but not quite one of those things. An academic journal, maybe? I thought it was stretching it to call LP and other blogs a periodical, especially when there is a separate item for “broadcast on the internet” on section 1.
BTW, when the writs are issued, I think we will need to close comments on this thread…
Anyway, folks, we’ll see if we can get some legal advice on it. I shall be writing to other people who publish things on the internet.
Nic Suzor, at Electronic Frontiers Australia, who’s a lawyer, has had a look:
http://www.efa.org.au/2010/02/02/sa-electoral-amendments-and-anonymity-online/#more-952
It seems from Atkinson’s second reading speech that it’s envisaged to cover blogs, though it’s all very confused.
Courts tend to place more weight on parliamentary debates in divining legislative intention than press releases, btw.
Liam Patrick Hills Hogan
Corridor table, opposite the escalators,
cnr. BBQ beef laska (rice noodles) & Bottle of VB,
Happy Chef Seafood Noodle House,
Shop F3,
401 Sussex St
Haymarket NSW 2000.
And as I suspected above, he thinks that authors do not need to be identified, just the publisher.
That may well be so, Martin, but given the form that Atkinson and Rann have for using the law to protect their political and private interests, and what seems to be an obvious attempt to bully people out of criticising the Rann government in the election campaign, I’d be much more comfortable if we had a considered legal opinion on the meaning of such a badly drafted piece of legislation. That’s not to detract from Suzor’s post, but it’s a blog post, not a legal opinion.
Methinks this SA legislation will run foul of the implied consitutional freedom of political communciation.
What is it, freakin’ amateur hour in Adelaide? I could a better Act out of my ass.
Darryl,
There are several things that annoy me about the legislation, not least of which is the insistence of “name and address (not being a post office box) of the author of the letter”. I am content with stating a PO Box on my blog (as one can see), but a street address is right out.
I don’t intent to write anything controversial. But in the hypothetical and extremely unlikely case that I write something to cause widespread community anger, I’d rather not have would-be vigilantes knowing where I live. After all, my wife lives with me too. I don’t want to cause her shit. Any legal writs thrown my way will find themselves in my PO Box, and if the cops want to have a chat, they can get my home address from the Qld. Department of Transport or the Residential Tenants Authority. But I’m not displaying my residence for random chancers to visit.
To stretch a rather long bow…
An anti racist group (fight them back?) had a number of its members assaulted/harassed as a result of their targets learning where they lived.
At the same time fight them back carried out a campaign of harassment/assaults on members of various racist groups they learnt the IDs of.
So the ones willing to harass and assault aren’t a straightforward left/right thing.
So a false ID when you are provoking groups you know are/might have unbalanced members is a valuable tool. I post using a nic, not because I fear harassment by anybody here, but because my business could be affected or some disgruntled tool could put in an ‘anonymous tip” to the taxman or similar harassment.
A friend of my fathers is one of the blokes who looks up names in the phone book and abuses people he considers “idiots” for writing in to the papers. It fun for him.
Id also counter that the extreme haters at either end of the political spectrum harm their own side more than the opposition, some are real cesspools
There is also the concern that people will not comment publicly because they fear retribution from or association with their employer (be it the government or a private company), even though the expression of their view is private and not intended to be linked to or represent the views of their employer.
Sure. I’m certainly not defending the way the legislation s written and I don’t even look like a lawyer. But I suspect that Suzor is close to the money.
I’m actually with Darryl on the principles. I don’t believe in anonymous commentary and I think people should be accountable for their comments. I don’t think that automatic public disclosure of addresses is the appropriate way of meeting this accountability. However given the above I have a suspicion that that question is moot. I suspect that the situation with blogs will be like newspapers. The publisher must be identifiable, and they are charged with keeping the contact details for commenters should the law later require these commenters to be identified.
I think that’s probably right, Martin. But I certainly don’t want to collect addresses of LP commenters, and I don’t think they should be required to give them to me!
No, but you do collect email addresses by default. As you’ve suggested yourself, you would need to be able to identify individuals in any case in event of a defamation action. As I’ve said, I don’t agree with the residential addresses.
Yes, but email addresses aren’t residential addresses, and anyway, a fair few of them are false. So, if we’re not collecting residential addresses, and we’re a “journal”, then presumably we’re in breach of the law.
Although it also makes a difference what ‘material’ means. If comments aren’t ‘material’, then we wouldn’t need addresses. As remarked, it’s pretty bloody ambiguous.
On re-reading, my bush lawyering of the legislation is that Mark (or other person, including a company) can take responsibility for electoral comment on LP, have an electoral statement that contains his name and address (or postcode only if LP is considered a journal) and that alone would fully meet the requirements of the act. No need for collection let alone publication of the addresses of individual commenters would be required.
Again I am not defending the legislation nor the motives of the people who introduced it. I merely suspect that some of the interpretation of it above has been a little more extreme than what the law actually says.
Mark – this is very similar to a “workplace-that-won’t-be-named”.
They’ve previously used the simple threat of injunctions to prevent people from working in competing organisations. Basically those who have the most to lose are those who will keep their heads below the parapet for fear of legal action (even if said action would be lost).
This law tends to cut out commentary from all except those who are prepared to risk much in comment.
I find it inherently disgusting. Mr Atkinson can try finding me if he wishes…he’ll get an earful
@101 – In any case, we’ve organised a legal opinion on it.
Very responsible.
We’re law abiding citizens around here, Martin!
If you’re able to publish said opinion when it is made available to you, I’m sure it would be of great service to the Aus. political blogosphere in general…
Thanks, Fmark, that’s a great suggestion. I’ll check when it comes in.
Yes – but Mark would need to check his ‘authorisation’ and validly displayed address etc didn’t end up making him liable as publisher under the Act. eg For any other breaches of the EA. Looks to me like it would.
or he’ll be spending a lot of time here checking posts!
AFAICT the Act creates no offence of any electoral comment apart from a prohibition on advocacy of voting in a manner other than specified by the Act, so I’m not sure what he needs to check. Certainly I can’t see the obligation being any more onerous than whatever currently exists under defamation law. (There are offences relating to electoral advertising or how-to-votes, but they do not seem relevant.)
Yet again, I agree the law is badly drafted and of dubious motivation.
Michael Atkinson gave an interview today – Atkinson defends new web laws – in which he makes it very clear that he thinks his law applies to bloggers.
I’ve prepared a transcript, which is as accurate as I can manage. I haven’t tried to put one or two lexical hesitations in. He was obviously responding to questions; the paragraph breaks mark where the video shifts slightly to indicate a transition between one answer and another.
Or, shorter Atkinson: “It’s all about ME!”
Well, I havent read the Act, but examples might include comments construed to be party political advertising on blogs. If a comment was determined to fall within that category – the “publisher” might be vicariously subject to the same regs governing party advertising that political parties are.
Like say tho, havent had a look. But it seems like an exercise in pinning a name to all comment – presumably, to extend accountability under the act to electronic media.
@110 – Deborah – I strongly suspect his understanding of ‘blogs’ is limited to what’s published on News Limited sites, as the quote implies. He may not even know any others exist.
@112 – Mark – I’m not sure whether that’s a charitable thing to say, or not!
Wow, it was reported that Atkinson believes that the legislation covers twitter and facebook as well! Although the electoral commission believes it doesn’t.
Anonymity required huh? So much for open democracy, citizenship and civility. Let me add that I think SA a terrific place and so well Rann that I intend to sell the dog and move there forewith to reside forever.
Commenter at #89
Is that a blatant attempt to have your next VB purchased by the SA electoral authorities? As they track down interstate commentary….
I cant see them controlling Facebook or MySpace etc. This is real ‘establishment’ – lese majeste, style behaviour – very Adelaide (we weren’t convicts sort of stuff)A pox on them all.
Facebook group: http://www.facebook.com/?ref=logo#/group.php?gid=328984210288&ref=mf
“This is real ‘establishment’ – lese majeste, style behaviour – very Adelaide (we weren’t convicts sort of stuff)A pox on them all.”
Perhaps….except SA has a proud history of progressive politics which Atkinson and his ilk seem to both disregard and disrespect.
So yes, judging from the interview I heard, it’s anonymity Atkinson doesn’t like. Funny thing is that when I was growing up the secret ballot, and the anonymity they provide, that Electoral Commissioner William Boothby oversaw was a source of pride in our studies on South Australian history.
Update: [by Mark] Policy backdown by Tweet:
And the Attorney-General has promised to retrospectively repeal the law insofar as it applies to internet comment.
Result!
Yippee!
Ahhhhh… this is what Tor is for folks.
An interesting turn of events. I’m glad common sense has prevailed, here’s hoping he’s forced to address his other moments of zealotry.
Now if only Conroy would back down on the internet filtering. Probably a lesson here to keeping advocacy efforts up during the weeks before the election.
The idea behind slander, libel and defamation laws is to protect people from having their good name, their reputation, besmirched, right? And the AG is supposed to be the staunchest defender of such laws?
How much worse a case of ones person and name being damaged can there be than by being publicly accused, by the State’s highest law officer no less, of (a) not existing (b) other than as a liberal party stooge?
Mr Atkinson said on radio station FIVEaa
“repeatedly in the AdelaideNow website one will see commentary from Aaron Fornarino of West Croydon. That person doesn’t exist…That name has been created by the Liberal Party in order to run Liberal Party commentary”
Mr Fornarino, actually a 2nd year law student, should stand against Atkinson for the seat of Croydon.
“I will immediately after the election move to repeal the law retrospectively.”
We won…didn’t we?
Yep.
Mark, I understood that to mean the law will still be in place for this election? If and when he gets around to doing it.
Meet the man Michael Atkinson says doesn’t exist:
http://www.adelaidenow.com.au/mike-meet-aaron-he-lives-500m-from-your-office/story-e6frea6u-1225826082741
Jacques, I think that what’s being said is that it can be ignored, since they will legislate to retrospectively remove the section after the election. That’s what Rann was saying on Twitter.
I suggest a State Hour of protest. Every SA laws-vulnerable blogger, regardless of political affiliations or sympathies, should just rise up together to say anything they think may possibly breach this abominably conceived and appallingly executed piece of legislation.
If the SA Government doesn’t respond then they’re just paper tigers doing origami legislation. If they do want to respond, then a ten minute chat with Treasury and the AG’s department should make it clear to even the dimmest pollie that SA simply doesn’t the money or nerve to handle several hundred prosecution cases deliberately provoked by a large, well-connected and uninhibited bipartisan local blogosphere.
Go for it. You have my full and totally deniable support.
Anyone considered what this means for someone who doesn’t want to be found by a stalker?
Are you aware that this law has actually existed in SA for 60 or 70 years? It has always applied to newspapers and talkback radio during an election campaign; this amendment merely extended it to commentary on the internet.
Why should you have to give your name and address for a letter to be published in the dead tree edition of a newspaper but not give your name and address for the exact same letter published in the online version? This was merely a case of the laws catching up with the technology.
Well, Chinda63, the problem has resolved itself. Atkison is to withdraw his legislation. This morning’s news following the public outcry, and probably a rethink of how anti Australian the whole thing was.
the Attorney-General has promised to retrospectively repeal the law insofar as it applies to internet comment.
Why doesn’t he repeal it now?
I mean, it’s kind of like he’s saying, ‘trust me, I’m a rat’!
TimT, a Bill to repeal the legislation would have to pass both houses of the SA Parliament—the Government can’t just repeal law executively. Parliament has already been prorogued for the 10 March election.
TimT @ 135,
Does that mean if you say something that upsets him you’ll end up in court, but if you don’t, he’ll ignore you?
…and I should add, it’s now up to the Opposition to match the promise to repeal it, if they wind up with a majority on the 11th.
A couple of further comments, the morning after.
What on earth does “retrospectively repeal” mean? The law as it stands now should be enforced, as the SA Parliament clearly intended when it was enacted, or it should be repealed urgently now, before the issue of the writs. If instead, the SA Government intends to simply not enforce a law on its statute books, then it should make a legally binding statement or regulation to that effect, and cop the humiliation that should follow, including the risk at the ballot box. Are we supposed to just nod politely, and trust them? Attorney-General Atkinson sounds a lot like a man with a serious chip on his shoulder…
Some commentators have argued that there is nothing really wrong with this law, as it now applies to the internet in SA, because authorisation has always been required in all electoral jurisdictions for printed matter. And we should not be backward about identifying ourselves because that’s a nice thing to do.
Ask anyone who has worked in an politician’s electorate office for any length of time and they will tell you all about the two major political party databases “Electrac” (ALP) and “Feedback” (Libs).
These computerised databases have been running for almost two decades now, and are based on the electoral roll, which is provided electronically free of charge and updated regularly to political parties by the federal, territory, and state electoral commissions as a legal requirement under their respective electoral acts.
These party databases contain the names and addresses of every enrolled voter, and added to this is the information gleaned by party workers on any voter that comes into their field of vision, whether by direct approach to the local member, or by letters to the editor, public statements of voting intention, etc.
As I understand it, these databases are exempt from the provisions of the Privacy Act, so that you are not able to find out what information the major political parties have recorded against your name on their private databases. How much of this information about you, recorded by various party hacks over a period of two decades with no accountability or transparency, is just plain wrong, or even maliciously wrong?
So next time you write a letter expressing a political opinion to the local newspaper during an election period, and dutifully supply your full name and address, just remember that somewhere, some party gnome is writing this information down on a computerised database that you cannot access, so that you can be targeted for direct mailing, doorknocking, or whatever sinister retribution seems to be a good idea at the time.
Ever wonder why talk-back radio does not require speakers to state their full name and address during an election period? Alan Jones and the rest of these petty demogogues have been operating for years without complying with such laws. Either its not a legal requirement (in some states), or its simply not enforced.
The authorisation provisions during election periods, for printed matter, talk-back radio (when its applied) and the internet (if any parliament is stupid enough to try), are a relic of the nineteenth century, and are no longer performing their original purpose (to track down defamers and protect the ruling class). Instead these laws have morphed over time into another method of authoritarian control, and a gross invasion of your privacy by political parties.
I understand from Liam@137 (posted the same time as me) that the SA parliament has already been prorogued, so it is not possible now to repeat this stupid law…
Well, isn’t that dandy. A politicians promise to ‘repeal retrospectively’. (Those who are paid to administer the law will need to continue their job..take down names, watch and maybe begin proceedings against a blogger or two.) And the elephant in the loungeroom, sleeping there, to remind you that your house is vulnerable if it happens to get flighty due to any noise you might make.
As far as I can see, the strange comments of Michael Atkinson are the only reason to think the law requires anything more than the name and address of the publisher. As such, there is probably not much to retrospectively repeal – the government need only make the wording of the law clearer, which everyone agrees is necessary anyway.
Stumped, you’ll probably notice a few pigs on the horizon out there.
Yep, pigs and elephants, out here, adrian.
Both the Liberals and Greens now claim they were mislead by the government about the coverage and impact of the legislation – the Greens especially may not have had the resources to properly research the impact. Its perhaps a sign that non government parties need more resources to do their job properly. I rather doubt the Greens would have supported the legislation if they had understood what it does.
FWIW the SA opposition leader was claiming on radio that the AG can remove the effect of the legislation immediately without repealing it but I didn’t understand the legalese.
Those words from Atkinson are still a bit chilling for mine. I’m not exactly that trusting now to take Rann’s word for it on Twitter. As far as I can tell this law will still be in place for the election given that parliament won’t resume until after the election.
Jacques: I don’t know what is wrong with you. I fhe said it on Twitter it must be true.
There may be a regulatory avenue for the legislation to be nullified, or at least, the effect of the legislation to be nullifed, before the election. [link]
Jacques @ 147 – Atkinson has reportedly agreed to suspend the law through regulation before the next election.
Bother! Sorry, Chris. My comment @ 149 got dumped in the spam bin. I logged in and released it, and then found your comment answering Jacques @ 147. I didn’t mean to gazump you.
Okie dokie, I’m starting to come around. I just wouldn’t trust Atkinson as far as I could throw him. Anyway today he met the man he said didn’t exist:
http://www.adelaidenow.com.au/news/in-depth/attorney-general-mike-atkinson-meets-his-invisible-man-aaron-fornarino/story-fn2sdwup-1225826491256
My Mum tells me that Atkinson was on radio saying he changed his mind on the law after his kids explained blogging to him…..oh dear….even my Mum, who doesn’t entirely understand the internet herself, can not believe that he would confess to such a thing, much less be making laws about something he clearly doesn’t understand. Today he admitted that Vicki Chapman shadow AG has come up with an excellent idea about how he could repeal the law immediately. It’s amazing to me that he couldn’t have figured it out himself, I reckon he probably spends most of his time compulsively googling his own name and getting indignant about every little thing that is said about him.
The truly terrifying thing, furious, is that he’s a blody lawyer. He’s supposed to understand this stuff.
Clearly he’s not just a thoroughly nasty piece of work, he’s also incompetent. For once, I agree with Vicki Chapman.
I love it.
Yeah, we fucked up. But the opposition has fixed for us so… y’know… VOTE ALP!
Sad
I use my name – but I’m willing to post stuff very critical of the SA AG under a pen name – As a Python fan, I’d like Bigus Dickus. I’d love to re-enact that in an appeals court – could that be done if the legislation stayed?
Heaven forbid if 1/2 our representatives did anything useful.
“Yeah, we fucked up. But the opposition has fixed for us so… y’know… VOTE ALP!”
hehe, exactly FDB.
My loathing of Don Farrell increased today, he says Atkinson is as “safe as houses”. I’d love to see the voters of Croydon prove him wrong.:
http://www.theaustralian.com.au/news/nation/mike-rann-backs-a-g-on-blogger-backflip/story-e6frg6nf-1225826525233
Labor Right/Labor Unity have way too much power in South Australia.
LP in the News [briefly] here:
Deborah @ 151 – no probs
furious balancing/FDB – I think its quite good when a government is willing to take on opposition ideas and even admit to doing so. But the arrogance shown by Atkinson and I think the leaders of the government in general are a typical of a group which has been in power for too long. Are there any ministers not currently suing anyone?
Its a pity they can’t just dump the leadership of the party.
Chris, South Australian Labor has no problem taking on board Liberal ideas….witness the desal plant; stormwater recycling; a multi-sports arena in the city..oh there are probably many more…ie: if the Libs come up with something that gets any kind of traction with the public, the government takes ownership of it as quickly as possible. But with these amendments – if they were focused on good governance, rather than Atkinson’s fragile ego and paranoia, there should have been no problem to fix.
“furious balancing/FDB – I think its quite good when a government is willing to take on opposition ideas and even admit to doing so.”
No argument here – it’s great! As long as you’re upfront about what’s going on.