By Matthew Camilleri
Article 114 of the General Elections Act prohibits the spreading of any information capable of influencing voters on the day of a general election and the day preceding it. There is no legal term for such notion, but it is commonly referred to as ‘electoral/ election silence’. Such provision is not unique to Malta as a number of foreign jurisdictions have similar laws in place, all aiming to establish a period of reflection where the voters can make a reasonable decision. This would in turn ensure that the state is built on the free will of the people, and secure the rule of law.1 Yet, the reality today is different to the reality of 28 years ago when this Act was promulgated. With the advent of the internet particularly, this law’s applicability is highly questionable and it is for this reason that the legislator should amend or repeal it.
This provision has raised a number of concerns, such as the fact that it does not distinguish electioneering from ordinary citizens expressing their opinions, or that it stops journalists from reporting to the public. However the main problem is that it regulates a medium which it did not envisage in the first place – the internet. The law makes express reference to public meetings, broadcast and printed matter but leaves the door open for “any other means of communication”, with such phrase being broad enough to include information published on the internet.
What the law fails to take into account is that the internet is fundamentally different from the other means regulated by the law. As opposed to broadcast or printed matter, anything which is published on the internet is permanent, meaning that such matter is constantly exerting influence, even during the electoral silence. The voter can be just as influenced by anything uploaded online before the silence as much as information uploaded throughout it. It follows that by criminalising one and not the other, the law defeats its own purpose and renders itself useless.
There is an argument as to whether such provision can survive if challenged before the Constitutional Court on the ground that it violates the right to freedom of expression. Any restriction to this right must be both reasonable and necessary, as stipulated in Article 41 of the Constitution and Article 10 of the ECHR. When a provision similar to ours was challenged before the Constitutional Court of Hungary, the Court argued that the right to freedom of expression may be restricted to ensure the protection of other rights, such as the right to hold free and fair elections.2 Whether Courts would reach the same conclusion today is unclear, but what is certain is that the argument supporting the function of pre-election silence as a time of reflection is constantly becoming less meaningful with the nature of the internet.3
Differing from the Maltese position, the notion of electoral silence is not found in the United States. Instead, the laws set in place limiting the First Amendment are those which prohibit electioneering outside the polling booth, to ensure that the voters are not intimidated to vote a certain way before entering the place of voting, as confirmed in Burson v. Freeman. Restrictions to the First Amendment are so limited that in the recent judgment Minnesota Voters Alliance et al v. Mansky et al, the Supreme Court went as far as ruling a law, which prohibited voters from wearing clothes containing political messages to the place of voting, unconstitutional.
Interestingly enough, the police in Malta have been quite inconsistent with the enforcement of this law online. In 2013, action was taken against citizens as well as candidates who had breached the silence by publishing comments on Facebook. However during the 2017 election, both the Labour Party and the Nationalist Party breached the silence by broadcasting promotional videos on their social media sites, facing no legal consequences whatsoever.
Rather than protesting for its repeal, the Maltese seem to be calling for more restraint. A survey conducted by the European Commission to explore matters relating to voting, shows that 74% of the Maltese participants are in favour of introducing the “same strict silence period”4 required for other media to social media networks, with only 17% being totally opposed.
The internet has made a period of reflection difficult, if not impossible, to reach. The only way to provide for it is by completely shutting down the internet during the days of silence and such decision would have fatal consequences to democracy. If Malta truly wishes to safeguard the rule of law, it should take into account this inevitable reality and strive to change the current legal situation.
1: Hungary Constitutional Court, Decision 6/2007 (II. 27.) AB 363/B/2003 26 February 2007
3: Magdalena Musiał-Karg, ‘The Election Silence In Contemporary Democracies. Questions About The Sense Of Election Silence In The Age Of Internet’  Przegląd Politologiczny, accessed 16 March 2019
4: Special Eurobarometer 477, accessed 16 March 2019