Tweet, blog, or post to Facebook… election silence is golden everywhere

Would you retweet a political post on the Maltese elections on the day of reflection on 8 March? Careful: you might be in for a hefty fine.

Keep your fingers under control when clicking that mouse. Although newspapers on Friday are prohibited from publishing anything that can influence voters on the eve of the elections, the internet and its archives will still be there for voters to scour.

So it would seem tempting to keep the discussion alive on Facebook and Twitter, even tough strictly speaking, these forms of broadcasting may fall under the General Elections Act under a broad interpretation of the law.

Article 114 of the General Elections Act expressly prohibits any public meetings or gatherings in public places or on the broadcasting media "on any matter intended or likely to influence voters in the exercise of the franchise, or publish or cause to be published any newspaper, printed matter or other means of communication to the public".

The article goes further in stating that anybody who distributes a statement or makes a declaration distributed by print or other means of communication, is liable to €1,164 fine and even imprisonment for six months.

Blogger Jacques Rene Zammit from akkuza.com says the law appears broad enough: "Tweets would require a definition of 'publicity' as in, how public are they? However, they have been found to be public under UK law for example. A tweet is most likely to fall foul of this law of silence, so could a Facebook status update for what that matters."

Proof that Facebook status updates can lend you in trouble was a comment posted to the Facebook group 'No to Pope Benedict XVI in Malta' back in 2010: a 'joke' comment where the user said he wished someone would shoot the Pope in his hands, feet and side to mimic the wounds of the Christ, cost him €500 and a suspended sentence.

Pleas by his defence that Facebook was registered in the US failed to convince the magistrate: if anything, the case was all the more sensational because it showed that the police can enforce laws against hate speech by tracking down users.

"I have strong doubts about how much such a law would be enforced," Zammit comments. "Last election blogs were at the forefront of the 'new media' and debutante blogger Daphne Caruana Galizia blogged right through the day of silence with no consequences whatsoever notwithstanding the fact that there was no doubt about the public nature of the blog.

"I hasten to add that the reason for such a law is outdated and has no place in the modern democratic discourse - particularly when we talk of a day of reflection when we have had six weeks of campaigning. Only last weekend Silvio Berlsuconi broke Italy's similar law with an outrageous attack on the judiciary - heaven knows if it helped his comeback."

Users should also be warned that sites such as Google, YouTube, and Facebook do comply with requests to disclose confidential data, and that no such confidential communication on these websites is necessarily 'safe'.

Maltese electoral law also says that persons who aid or abet the breach of election silence are also liable to the same punishment on conviction. How would this affect websites such as YouTube, Facebook or Twitter if they tolerate video uploads, status updates and tweets that breach the law?

In some countries YouTube is completely blocked in the run-up to an election, and it is very likely that YouTube will often agree to remove or limit access to a certain video in order to restore service later on.

Google's transparency site says governments make content removal requests to remove information from Google products, such as blog posts or YouTube videos. The Maltese government filed 15 requests between 2009 and June 2012 on the basis of court orders and requests by the executive police, that dealt with defamatory articles on the Google search engine, and privacy and security issues on YouTube.

Both Google and its product YouTube, will remove content that violates content policies in response to user complaints, or even local laws without a government request.

Facebook also will disclose users' information on court orders and criminal or civil proceedings' requests if the response is required by law, even from jurisdictions outside the US. It will disclose all data it has retained in an appropriate form of legal process and on presentation of a valid preservation request before a user has deleted the content.