In 2020, many Victorian Councils were faced with the difficulties of navigating an election period during the COVID pandemic. This contributed to candidate behaviours that were questionable, disruptive and unethical. The Local Government Inspectorate’s (LGI) report “Social media fuels risk in complaints during 2020 council elections” published in June this year, highlights the significant impact that social media has had and issues which ought to be addressed before the next election period.
Campaigning is an integral part in a candidate’s election or re-election. However, with traditional in-person campaigning being impractical last year, many candidates relied on virtual platforms.. The prevalence and accessibility of social media made it an obvious alternative, but this was not without its negative consequences.
The rules around council election campaigning are governed by the Local Government Act 2020 (Vic) (Act). Unfortunately, the Act does not specifically contemplate the challenges of social media. Last year, the LGI saw a surge of complaints, many of which were from candidates about other candidates and the materials they published online.
Misleading and deceptive electoral matter
The ability to virtually post anything on social media meant that misinformation and inaccurate statements about candidates were easily spread through the community. Many of the complaints received by the LGI alleged that such statements amounted to misleading and deceptive electoral matter. From the volume of complaints, it is clear that there is a disconnect between “the expectations set by the legislation and the reality of how it is interpreted by the legal system”.
Section 288 of the Act states that a person must not print, publish or distribute any matter that is likely to mislead or deceive a voter in relation to casting their vote. The Act does not make it an offence to make a statement that is inaccurate. Though such conduct is not necessarily a contravention of the Act, the high threshold of section 288 somewhat undermines its effectiveness .
Most Councils maintain election policies that severely restrict the Council administration’s ability to enter the public arena in the lead up to and during an election period. The aim is to avoid influencing voting decisions or having Council’s administration appearing to hold biases in relation to certain candidates. However, the LGI believes that in some instances, it is the Council administration’s responsibility to go on record and correct certain misinformation. By exercising the discretion to correct simple facts, a Council might facilitate a fairer election.
Bullying and harassment
Unethical behaviour towards candidates was also at the root of many complaints arising from the October 2020 elections. While criticism and debates are expected in any sort of election, there were many reported instances of candidates being harassed, threatened and bullied online. There is a justified community and sector wide concern in our view that failure to prevent such behaviour will deter quality candidates from running in future elections and in turn, stoke a more toxic culture around Council elections.
A key issue with harassment and bullying on social media is that, similar to the spreading of misinformation, it is not necessarily illegal and therefore often is unlikely to result in any reprimand of offenders. The LGI has since published a guide which sets out the appropriate method for posting on social media in order to comply with authorisation requirements under the Act. Authorised material will display the name and address of the person who authorised the electoral material to ensure that the poster can be held accountable. Additionally, the LGI has suggested that the Act be amended so that materials published on social media or in other forms of electronic communication are classified as “electoral material” to which the Act applies.
Potential for new changes
The substantial increase in complaints in relation to social media has understandably led to calls for changes to the election rules. It is reasonable we think for Councils to take a more active role during election periods in challenging demonstrably inaccurate public statements about Council policies or actions that will likely influence voting decisions. Councils are therefore encouraged to develop or amend their internal election period communications policies.
Additionally, it may be appropriate for the Act to be reviewed and updated so that it better addresses problematic electioneering conduct on social media. As the use of social media evolves, so too should our laws. Offending candidates and associated users of social media should be face appropriate consequences under the Act.
In a recent episode of the highly recommended VLGA Connect Governance Update podcast, the Chief Municipal Inspector expressed that in practice, the available enforcement options are limited to either prosecution or issuing a warning. On one hand, the court process involved in prosecution is time consuming and very costly; on the other hand, a warning may be too light a penalty to discourage future re-offending. The introduction of infringement notices may be a desirable way to bridge the apparent gap between existing penalty options. We anticipate significant developments in the local government sector in regard to local elections over the coming years.
Councils seeking advice in this area or wishing to update their policies for the next election are encouraged to contact our local government team at Hunt & Hunt.
~ with Michelle Nguyen, Lawyer