Quiet please, we’re voting

The ‘Day of Reflection’ is upon us.

No, it isn’t a blessed break from house-shaking petards, sleep-shattering air horns, or the brain-shattering clatter of a building magnate on the make.

It’s an archaic law that shackles news media without putting a dent in online Party propaganda.

As I’m sure you know, it is forbidden to publish political stories on both election day and the day before election day.

According to Article 114 of Malta’s election law, this covers broadcasting media, newspapers, printed matter “or other means of communication to the public”. Addressing a public meeting or any other gathering “in any place or building accessible to the public” is also forbidden. That would include campaigning by candidates.

The reason? To avoid saying anything “intended or likely to influence voters in the exercise of the franchise”.

Voters have spent the past few weeks listening to candidates, sifting through hundreds of pages of Party platforms, and evaluating the pithy back and forth of the leaders’ debates. Silence descends the day before the election to allow citizens to sit in contemplation, weighing the choice before them and putting the national interest upfront.

That’s the theory, anyway.

Unfortunately, voters are not rational actors. In Malta, they’re rabid fans, and like fans everywhere, they display different levels of fanaticism. Some vote in exchange for a favour. Some see Party colours as a personal brand. And others are raving carcade hooligans who party in front of Pilatus Bank.

The vast majority of voters made up their minds long before election day. Most know who they’ll vote for even before the election is called. And what of those who took advantage of advanced voting? Where was the day of silence for them? Should they be legally mandated to walk around with their fingers in their ears?

Forbidding the publication of anything likely to influence voters is also dappled in shades of grey. Political adverts are obviously out, as are panel discussions and electoral analysis. But what of news?

Say, for example, that another dodgy real estate deal by the prime minister was uncovered the day before the vote, or fresh evidence emerged linking a cabinet minister to laundered kickbacks from the sale of passports. Publishing this news would certainly influence whether or not someone voted for that candidate — in a sane world, anyway.

Is publishing such news forbidden under the election law? No one knows, but there’s enough ambiguity that a judge could punish anyone who did so.

It isn’t even possible to enforce this article of the election law because we no longer live in a world where newspapers arrive on one’s doorstep hot off the presses, and where news programmes are aired live three times a day.

All election-related content published in the weeks leading up to the vote — from opinion pieces to videos of mass rallies — is online, and the desperate junky can play it over and over again all the way to the voting booth.

Should news media be required to sift through their archive and take such content offline for the day of reflection? If so, how far back should they go?

Does this also apply to political parties, candidates and private citizens? The latter is an interesting category in an age of ‘citizen journalism’.

In the lead up to the 2017 snap election called by Joseph Muscat over allegations of corruption, politicians on both sides admitted the day of reflection is an anachronism.

Then Justice Minister Owen Bonnici said, “considering that the present law regulating the matter was enacted prior to the advent of social media, the government is open to discussing this issue”.

No one would consider Bonnici a leading legal mind. But the then deputy leader of the Opposition had agreed with him.

Beppe Fenech Adami had said, “today we live in an age where everyone is a broadcaster of information and even from a practical point of view it is very difficult to control what they post online.”. The ban on mass rallies should stay, but “the present online ban needs revisiting”.

In an age of ubiquitous social media, where’s the line between public broadcaster and private person with a right to free speech? Is it on social media? Is it a blog?

Given the ‘permanent’ nature of online content, you can see how easily the day of silence can be abused.

A crafty person would wait until 11:55pm on the day before the election to publish something particularly damning about a political opponent. Their opponent would have no choice but to sit and stew until after the vote. To refute the allegation or even to defend one’s name would open the barred door to jail time, a fine or both.

It would be easy to exploit the law to control the narrative in this way, but there isn’t any need for craftiness in a country where laws are enforced selectively, at best, and ignored as a norm.

You only need to look as far back as the last election for examples of how blatantly the day of reflection is violated.

In the 2017 contest, the PN complained to the Electoral Commission that Labour candidates hadn’t taken down their sponsored Facebook Live videos prior to the day of reflection. When the Commission did nothing, the PN told its candidates they could use paid social media content to promote themselves too.

The penalty for breaking the law is €1,164.69 or six months in jail, or both. Better to simply add the fine to the cost of advertising. It’s unlikely to be levied anyway, and does anyone seriously believe a politician would be sent to jail for posting a video on Facebook?

That’s the greatest threat of this outdated law. Not that it no longer makes sense in an era when online content can never really be erased, but that it can be weaponised to target critics through selective enforcement.

It sounds like an exaggeration, doesn’t it? People only get dragged away by armed men for publishing a blog in China, Russia — and Malta.

The night before the 2013 election, three police officers were sent to the home of Daphne Caruana Galizia with an arrest warrant. One was a woman, and the other two were plainclothes officers: Inspector Carlos Cordina of the Criminal Investigation Department and Keith Arnaud of the Homicide Squad (the very same Arnaud who is leading the investigation into her brutal murder).

The police officers demanded she get in the car to be taken to the station. Instead, she called the press and only agreed to go to the depot in her own car once the media had arrived. She was interrogated until 1:30am.

Why was a journalist targeted for publishing a personal blog on the day of reflection when the entire country was discussing the vote on social media and news articles written the day before were still online?

The police wouldn’t say, but their questions made it clear: “Do you confirm that you wrote and uploaded an article about the Leader of the Opposition, at around 7pm this evening, with the aim of influencing people on how to vote?”

“I knew exactly which blog post it was,” Caruana Galizia wrote, “the one with three videos that show him waddling away from parliament, laying wreaths like a klutz, and making a hick scene in the European Parliament because they didn’t get him a translator.”

The Leader of the Opposition was Joseph Muscat. She had been arrested for laughing at him in public.