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Guidelines on election advertisements for Legislative Council election
2016-06-02

Following is a question by the Hon Charles Mok and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (June 1):

Question:

Before each Legislative Council (LegCo) general election, the Electoral Affairs Commission (EAC) updates and publishes the Guidelines on Election-related Activities in respect of the Legislative Council Election (the Guidelines).  After revising the Guidelines, EAC put forward in March this year the Proposed Guidelines on Election-related Activities in respect of the Legislative Council Election (the Proposed Guidelines), and launched a 30-day public consultation.  The major changes set out in the Proposed Guidelines in respect of election advertisements (EAs) include: (i) reminding any person/organisation publishing materials to appeal directly or indirectly to electors to vote or not to vote for certain candidates or candidates of certain organisations that such materials may be regarded as EAs, and (ii) reminding candidates and web surfers that messages published through Internet platforms with the intention to promote or prejudice the election of any candidates would be regarded as EAs, but if web surfers merely share or forward different 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 regarded as publishing EAs.  There are comments that as members of the public expressing personal views on Internet social networking platforms (such as Facebook) is very common nowadays, but the aforesaid guidelines on EAs are too vague, members of the public may easily contravene section 23 (Illegal conduct for persons other than candidates and election expense agents to incur election expenses) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554).  In this connection, will the Government inform this Council:

(1) of the respective numbers of (i) complaints received by EAC in each of the past two LegCo general elections relating to publication of EAs through disseminating messages by certain individuals on Internet social networking platforms, (ii) candidates involved in such complaints, and (iii) those complaints which were found substantiated after investigation by the relevant authorities, as well as the details of such substantiated cases;

(2) whether it has assessed if, according to the Proposed Guidelines, a member of the public (i) changing the profile picture of his/her personal account with an Internet social networking platform into a picture of supporting a certain candidate, and (ii) adding a topic symbol (i.e. hashtag) relating to a certain candidate when posting messages on an Internet social networking platform, will be respectively regarded as EAs;

(3) whether it will consider providing a more detailed guideline on “intention to promote or prejudice the elections of any candidates”, so as to prevent members of the public from contravening the law inadvertently; if it will, of the details; if not, the reasons for that;

(4) whether it knows if individuals’ publishing personal political opinions on the Internet not under the instruction of a candidate or his agent may be exempted from being regarded as EAs in other jurisdictions, and therefore will not be subject to the regulation by the relevant ordinances relating to election expenses; if it may be exempted, of the details; if it may not, the reasons for that;

(5) given that the Proposed Guidelines provide that if a candidate “instructed” the relevant person to publish the aforesaid materials or online messages, the candidate has to include the costs so incurred in his/her election expenses, of the specific meaning of “instructed”; whether it has assessed if EAs of a candidate forwarded by web surfers on their own accord have to be regarded as EAs; if the assessment outcome is in the affirmative, of the relevant considerations and the method for calculating such expenses on EAs; whether the authorities will consider drawing up a clear method for calculating election expenses to ensure fairness of an election; if they will, of the details, if not, the reasons for that;

(6) whether it has assessed if the costs of the following items have to be included in the expenses on EAs: (i) fees for preparation, design and release of advertisements, (ii) fees for website-hosting, (iii) costs incurred for setting up and maintaining the hardware and software of a website, and (iv) costs for placing fee-charging advertisements on Internet social networking platforms; if the assessment outcome is in the affirmative, of the justifications for that; and

(7) as the advancement of the Internet technology has enabled any person to publish his/her opinions and disseminate messages to the public easily and at a very low cost, whether it has any plan to conduct a review to see if the provisions relating to EAs under Cap. 554 still suit the present circumstances; if it does, of the details; if not, the reasons for that?

Reply:

President,

The Legislative Council (LegCo) general election will be held in September this year.  The Electoral Affairs Commission (EAC) has drawn up a new set of the Proposed Guidelines on Election-related Activities in respect of the LegCo Election (the proposed guidelines) for the upcoming LegCo general election and any by-elections to be held afterwards.  The proposed guidelines were published in March for public consultation, with the consultation period ending on April 1.  The EAC will issue the finalised guidelines in June.

According to section 2 of the Elections (Corrupt and Illegal Conduct) Ordinance (ECICO), “election advertisements” (EAs) means any form of publication published for the purpose of promoting or prejudicing the election of any candidates at an election, and “election expenses” means expenses incurred before, after or during the election period, by or on behalf of a candidate for the purpose of promoting the election of the candidate or prejudicing the election of other candidates.

After consultation with the relevant departments, a consolidated reply is given as follows:

As mentioned above, according to section 2 of the ECICO, “EAs” means any form of publication published for the purpose of promoting or prejudicing the election of any candidates at an election.  As such, messages published by web surfers through social media for the purpose of promoting the election of a candidate/list of candidates or prejudicing the election of other candidates/lists of candidates will be regarded as EAs.  However, if web surfers merely share or forward different candidates’ election campaigns through internet platforms for expression of views and do not intend to promote or prejudice the election of any candidates, such sharing or forwarding will not normally be construed as publishing EAs.  However, if web surfers are instructed by the candidate or candidates on the list or his/her/their election helpers to share or forward the election campaigns through internet platforms with the intention to promote or prejudice the election of a candidate or candidates at the election, such act will be regarded as publication of the candidate’s or candidates’ EAs and any costs incurred will have to be included in the election expenses of the candidate/list of candidates.

According to the provisions on election expenses stipulated in the ECICO, for the EAs published by a candidate through on-line platforms, the production and operating costs including internet service fees, on-line advertisement design fees, etc. should be counted towards the candidate’s election expenses and be clearly declared in his/her election return.  As provided in EAC’s election guidelines, whether a particular item of expenditure should be regarded as an election expense is a question of fact to be answered in the circumstances of each case.  Each case should be determined by reference to the purpose behind the expenses, taking account of the nature, circumstances and context of the expenditure.  Candidates should consult their legal advisers if they have doubt as to whether an expenditure item should count as an election expense.  To facilitate candidates to fill out the election return, since the 2015 District Council ordinary election, the Registration and Electoral Office (REO) has produced a guide and video on how to complete the return for reference by the candidates so as to provide them with more specific and detailed guidance on frequently asked questions such as how to calculate election expenses.  Besides distribution to candidates, the guide and video for the 2015 District Council ordinary election were also uploaded to the relevant election website.  The same arrangement will be made by REO for the 2016 LegCo general election.

The ECICO is enforced by the Independent Commission Against Corruption (ICAC).  For complaint cases relating to the publication of EAs through disseminating messages on internet social networking platforms and involving violation of the ECICO, one complaint was received by ICAC in the 2008 LegCo general election and the 2012 LegCo general election respectively.  After investigation, neither complaint was substantiated.

The views of LegCo members and the general public, as expressed in the public consultation on the proposed guidelines, in relation to EAs disseminated through the internet and the expenses so incurred are noted.  We will carry out study on the relevant regulatory regimes in overseas jurisdictions.

Ends/Wednesday, June 1, 2016
Issued at HKT 15:02

Office Of Hon. Charles Mok, Legislative Councillor (IT)