15 February 2010

Cyberspace March 2010

Sometimes politicians come up with funny ideas. You see, South Australia is having a state election in March, and Michael Atkinson, the SA Attorney General enacted a rather unusual law... s116(1) of the Electoral Act 1985 (SA). It provides (my paraphrase):

"A person must not, during an election period, publish material containing a commentary on any candidate or political party, or the issues being submitted to electors in a journal  published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material 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. This does not apply if the name and address is retained by the publisher for a period of 6 months after the election period."

"Journal" here means a "newspaper, magazine, or other periodical". This was aimed squarely at professional media, but it also purports to catch blogs and other online media. The fine is $1,250 for a natural person and $5,000 for a body corporate.

The SA government has announced that it will not enforce the law and it will be repealed after the election. Having a brand new law on the books that is worthless says a few things about the process that got it there, but the real issue is a reduction in the freedom to do certain things. It is true that people dishonestly put incorrect bylines on blogs and even in letters to the editor, but that's life.

Party electoral information has long been required to state specified matters. However, this was a step beyond that, affecting the general public. For that reason it's worth dissecting this section...

I assume the A-G was concerned about anonymous remarks (he's currently involved in defamation litigation). The problem is that this section causes a lot of new problems. Who "takes responsibility for the publication of the material"? Is it the newspaper, the editor, or the writer of the letter to the editor? If the material is in a comment to a blog, is it the blogger or the commenter? Careful reading leads to the curious inference that the person who takes responsibility for the publication of the material is not the publisher.

The definition of "journal" is another minefield. I think I understand what a "newspaper" is on the Internet as long as I read it narrowly to mean a Fairfax, Consolidated Press or similar mainstream publication, but why stop there? What about Crikey (http://www.crikey.com.au/)? I consider that most definitely a "news site", but it's not a newspaper. I would respectfully suggest its readership is far greater than the St George Leader (www.theleader.com.au) which is a Fairfax newspaper.

"Magazine" is a lot harder, as to me that means a glossy thing, but it also means to me something online like Slate (http://www.slate.com). "Other periodical" suggests that one-off publications are excluded from this law. But what is 'one-off' on the internet? Is it a new web page on a site, or a new web site? Perhaps it's just a new entry on a blog? What is a "periodical" in a world when a publication (a web site) is updated every few minutes or hours?

Finally, we see that the law applies to "commentary in written form... published by radio or television or broadcast on the Internet." There is a technical legal issue of "broadcast on the Internet" since the Broadcasting Services Act 1992 (Cwlth) provides that "programs available on demand on a point-to-point basis" are not a "broadcasting service." Then there's the obvious issue - how do you broadcast commentary in written form on the radio?