Messages posted by internet users intended to promote or prejudice the election of a candidate may be regarded as election advertisements, and would be counted as election expenses, the chairman of the Electoral Affairs Commission has said. If not pre-approved, an offence may have been committed.

The chairman, Justice Barnabas Fung Wah, was speaking to reporters on Wednesday about the consultation on Legislative Council election guidelines that ended in April. It suggested that guidelines were required to cover online messages.

Supporters changed their Facebook profile pictures showing candidates' numbers and slogan during a LegCo by-election.
Supporters changed their Facebook profile pictures showing candidates’ numbers and slogan during a LegCo by-election.

Fung was asked 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.

Commentary exempt 

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”.

facebook profile picture
Photo: HKFP remix.

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.

Justice Barnabas Fung Wah
Justice Barnabas Fung Wah (centre). Photo: GovHK.

‘Lagging behind’

Fung added that it was not the role of the Electoral Affairs Commission to comment on whether the current laws were too strict.

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.

“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.”

Draft election mail of Edward Leung Tin-kei.
Draft election mail of Edward Leung Tin-kei. Photo: Stand News.

No ‘list’ of illegal terms

The Registration and Electoral Office recently faced a legal challenge from activist Edward Leung Tin-kei after it refused to allow election materials containing terms such as “valiant resistance” and “self-determination” to be mailed out to the public. Fung would not comment as there are ongoing legal proceedings.

He said that there was no list of “illegal terms” for election campaigns.

When asked about the run of candidates who support Hong Kong independence, he said that election hopefuls need to sign a statement upholding the Basic Law and pledge loyalty to the Hong Kong government.

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.