Facebook has been under attack in recent months by US conservatives – worried that Facebook could influence the outcome of the presidential election – for “suppressing conservative news”. While these claims are somewhat overblown, there is no getting away from the fact that Facebook undoubtedly has tremendous power, with some 200 million Americans spending around 30% of their Internet time on Facebook and its properties (WhatsApp, Instagram).
A 2014 study determined that some 340,000 people probably turned up to vote in the 2010 US Congressional elections because of a message they saw on Facebook. However, Facebook has never directed these efforts at any party or candidate… although they could. Of course users can say what they like about policies, parties and candidates. In fact, President Obama’s two election campaigns were very heavily invested in using social media – often at targeted individuals – to gain votes.
In Hong Kong Facebook’s dominance of the social media is particularly intense: 4.4 million or more than 50% of the population are Facebook users. Of these, 3.1 million log on to Facebook every day and spend an average of 30 minutes each time. Clearly, if politically active users were to engage in supporting election candidates it would be a powerful tool.
However, this will not be happening in Hong Kong except within defined boundaries, according to the Electoral Affairs Comission (EAC).
When the EAC chairman Justice Barnabas Fung Wah, said in May that “messages posted by Internet users intended to promote or prejudice the election of a candidate may be regarded as election advertisements… and an offence may have been committed”.
This statement was made at the end of the public consultation period about the Legislative Council’s election guidelines at the end of April. Subsequently, Fung’s comments have been fully endorsed by EAC, although wide areas of confusion remain.
Fung was asked by reporters whether changing profile pictures on Facebook or adding hashtags to support a candidate would be counted as election advertising.
“Urging people to vote for someone – like a candidate – saying ‘I am very good, please vote for me’, and not giving reasons or commenting on if things are right or wrong – these would highly likely be counted as election advertisements,” Fung said, according to Ming Pao.
Fung said that election campaign commentaries would not be counted as election advertisements. “If members of the public merely share or forward candidates’ election campaigns through Internet platforms for expression of views, and do not intend to promote or prejudice the elections of any candidates, such sharing or forwarding will not normally be construed as publishing election advertisements,” Fung said.
Fung said that the existing definition of an election advertisement under the law was “very wide”, but “the legal definition has been there all along and has not been amended”.
He added that Internet users may cause an offence if messages intended to promote or prejudice the election were not first approved by the relevant candidates.
Under the Elections (Corrupt and Illegal Conduct) Ordinance, a person – other than a candidate or a candidate’s election expense agent – is considered to be engaging in illegal conduct during an election if they incur election expenses at, or in connection with the election. Offenders may be sentenced to a maximum of seven years in prison with fines of up to HK$500,000.
Commenting on the law, IT sector lawmaker Charles Mok joked that people have to include “#personalcomment” in posts in order not to break the law, Hong Kong Free Press reported.
“Who decides whether changing profile pictures, amending and making photos are intentional [to promote or prejudice the election]?” he asked on Facebook. “It is another example of the law lagging behind the development of the Internet.”