Tuesday, January 15, 2013

A poll during the blackout period? What was ST thinking?

Fact:   Straits Times published on 10 June 2013, the results of a poll it claimed to have conducted amongst Punggol East residents after the Writ of Election had been issued.  The best part about it was that ST openly stated that the poll was 'after' the Writ of Election. 

Fact:   It is an offence under the Parliamentary Elections Act to publish the results of a survey during the 'blackout period' (from Writ of Election to polling day).  The relevant statutory provision is:

78C. —(1) No person shall publish or permit or cause to be published the results of any election survey during the period beginning with the day the writ of election is issued for an election and ending with the close of all polling stations on polling day at the election.

(3) In this section, “election survey” means an opinion survey of how electors will vote at an election or of the preferences of electors respecting any candidate or group of candidates or any political party or issue with which an identifiable candidate or group of candidates is associated at an election.

Having been exposed by some netizens, the ST's article is now being investigated by the police. Today ran an article on 13 Jan 2013:  Warren Fernandez's response is classic:

In response to TODAY, Editor of The Straits Times Warren Fernandez said: "Our reporters spoke with residents in Punggol East to get their comments and a sense of the ground for our election reports. This was not a full-scale survey, or scientific poll, by any means.

"The headline for our story overstated the significance of the information gathered by calling it a poll. We are sorry for this lapse. We will, of course, co-operate with the Police for any investigation," he said.

The editor of ST has inspired me to come up with some pseudo-reasons for not prosecuting ST.  By the way, if you think any of this sounds impossible, you haven't come across the case of the parachuting candidates.

Argument No. 1

The Parliamentary Elections Act deals with election offences committed by individuals and not corporations.  Though ordinarily the word 'person' is often associated in other areas of the law with both 'legal persons' (e.g. companies) as well as 'natural persons' (you and I), it is specifically a reference to 'natural persons' for the purpose of electoral law. 

SPH is a company.  It is not a natural person.  The offence refers a 'person' that publishes election surveys.  SPH published the survey.  But, SPH is not a 'person' for the purposes of the Act. 

It is not an offence to conduct a survey.  The reporters conducted the survey.  Publishing is an offence.  Conducting the survey is not. 

Causing or permitting the publication of an election survey is an offence.  Arguably, Mr Warren Fernandez could be stated to have caused or permitted the publication.  But, at all material times, Mr Fernandez was acting in his capacity as the servant or agent of SPH.  Any act of 'causing' or 'permiting' was done by Fernandez as agent of the principal, SPH.  The causing & permitting was by SPH.  SPH is a company and therefore a legal person as opposed to a natural person.  Therefore, SPH cannot be charged as reasoned out earlier. 

The reporters did not commit any offence.  Mr Fernandez did not commit any offence.  SPH did not commit offence. 

Alternatively Argument No. 2

SPH published the results of a poll.  It did not publish the results of a survey.  'Election survey' is referred to in the statute as an 'opinion survey of how electors would vote'.  According to the freeonline dictionary a 'survey' is a 'detailed inspection or investigation'.

SPH did not carry out a detailed inspection or investigation.  It did a straw poll in a haphazzard manner.  A survey is not a poll.  It is not an offence to publish the results of a poll.  It is only an offence to publish the results of a survey.  Since what was done was not a survey, the publication of the information stated in the ST article was not an offence. 

Alternatively Argument No. 3

SPH lied.  A survey was conducted.  It didn't suit SPH to publish the results of the survey.  So, SPH published 'fake' results of the survey.  It is true that SPH published the results of a supposed survey. .  But, SPH did not publish the results of the actual survey that had been conducted.  In order for an offence to be committed, the results published must be accurate results.  Otherwise, they do not qualify as results of a survey. 

Alternatively Argument No. 4

SPH lied.  No survey was conducted.  If no survey was conducted, no results could be published.  The publication of results of a fake survey is not an offence.  It is a lie but since when is lying an offence?  In fact, since SPH's detractors are so into free speech, lying is a form of free speech.  Check out this American case and you will realise that we are not wrong:

Alternatively Argument No. 5

It was an honest mistake.  We are sorry.  Let's move on. 

(Note:  Nothing referred to herein by way of an argument or the suggestion of an argument is to be construed as being logically and/or legally tenable.) 


Attorney Online said...

You are one of the best authors of legal articles I read during last year. Would you please write something to the section of legal articles on Attorney Online. There is also an Attorney Directory where lawyers can submit for free their contacts. I hope to gather there all best US lawyers.

Anonymous said...

What do you say of the previous offender who conducted published an online poll?

Subra said...

Anon> That was a natural person. :-)

Anonymous said...

There is the letter of the law and the spirit of the law.

Anonymous said...

You know, PAP history has a tendency to repeat itself!

Anonymous said...

He did not post it, The Temasek Review did, and that was not a natural person.

Anonymous said...

Sir, 10th of June, 2013 hasn't arrived yet, so I assume you are musing on a hypothetical situation in a potential case then. ;)

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