Wednesday, May 25, 2016

[EJinsight] Getting caught for election fraud is easier than you think

As demonstrated in the recent US presidential primaries, the Taiwan presidential election, the London mayoral election and the district council elections in Hong Kong last year, the internet and social media are quickly becoming an increasingly decisive battleground for candidates.

However, while it is very common for netizens to express their own support or rally support for particular candidates through social media in an election, few might be aware that by doing so they could fall into legal traps and even face criminal charges.

Last week, the Independent Commission Against Corruption invited a netizen to assist in its investigation of a suspected violation by her of the Elections (Corrupt and Illegal Conduct) Ordinance.

Media reports said that during the Legislative Council by-election in New Territories East in February, that person allegedly forwarded messages on Facebook urging her friends to vote for Edward Leung Tin-kei, the candidate representing Hong Kong Indigenous.

That person was not a member of Leung's campaign team, and she forwarded the messages entirely of her own accord without receiving any reward for doing so.

She did that because she agreed with Leung's election pledges.

It is something anyone with a smartphone might casually do.

However, under the Elections Ordinance, online messages and images showing support for a particular candidate, including those shared among friends or chat groups on social media, are considered election advertisements and will be counted in the election expenses of that candidate.

Since under Section 23 of the Elections (Corrupt and Illegal Conduct) Ordinance, only candidates themselves and the election agents they appoint can incur election expenses, anybody who incurs any election expense without the authorization of a candidate will be in violation of the law and could face criminal charges.

As we can see, the vulnerability of the average individual to a criminal charge of violating the Elections Ordinance is absolutely staggering.

To make things worse, thanks to the minimal public promotion and education about this potential legal risk by the government, the overwhelming majority of our citizens aren't aware of it at all.

Even though the odds of your getting caught by the ICAC for sending Facebook messages rooting for a candidate in an election might be smaller than those of your getting hit by a car, the risk is still there, and it is by no means a negligible issue.

I strongly urge the government to introduce a special clause to the existing Elections (Corrupt and Illegal Conduct) Ordinance to exempt messages and images posted by the average internet user during elections, just as New Zealand and Canada have done.

This article appeared in the Hong Kong Economic Journal on May 23 2016

Translation by Alan Lee


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