More vigilance required on the ThunderGo plan
Song Sio-chong questions the fairness and legality of the ThunderGo campaign, arguing that it should be given stricter supervision — particularly in its dissemination of data before the closing of Legislative Council polls
The ThunderGo campaign launched by “Occupy Central” co-founder Benny Tai Yiu-ting during the September Legislative Council election has provoked heated debate about its legality. Through a smartphone program, the organizers collected data on voters’ preferences for the candidates on the polling day in a way similar to an exit poll. They then disseminated the data along with a list of their recommended candidates.
ThunderGo did have an impact on the outcome of the election. Some veteran “pan-democratic” legislators failed to get re-elected while 12 radical candidates endorsed by ThunderGo won with an unexpected number of votes because of the maneuver. Candidates on ThunderGo’s recommended list in effect grabbed votes from those who were not on the list. In short, the results were swayed as the organizers of ThunderGo had wished. The public can’t help but question the legality of such a maneuver.
Since ThunderGo is quite similar to an exit poll, I believe it could be analyzed from two aspects — the normal practices of exit polls, and canvassing. This analogy is appropriate if the common-law principle that similar cases should be treated similarly is acceptable.
First, ThunderGo has shunned supervision. Exit polls are subject to regulatory approval. Any person or organization intending to conduct an exit poll is required by the Registration and Electoral Office (REO) to provide information including the name, address, telephone number, and identity document number of the applicant and the people responsible for exit polling at each polling station during the polling day. The applicant is also required to sign an undertaking to abide by the guidelines governing the conduct of the exit poll.
In comparison, ThunderGo has a much larger adverse effect than a typical exit poll. If the election authority had exercised supervision on exit polls previously, it has to pay greater attention to ThunderGo. But the REO appeared to know almost nothing about those who collected the data, either modified or not modified; it only learned about Tai’s ThunderGo campaign from the media. Tai did not promise the REO not to inappropriately influence and disturb the implementation of a fair, objective and impartial election. The authorities need to exercise some supervision of ThunderGo.
Second, the Electoral Affairs Commission (EAC) has always reminded us that any person or organization invoked in an exit poll should not announce the results of the exit poll or make specific remarks or predictions on the performance of individual candidates before the close of the poll. If the exit poll data are inappropriately published before the poll ends, it may influence the decision of voters who have yet to cast their votes. News and current affair programs are subject to the Television and Radio Codes of Practice on Programme Standards to ensure fairness, objectivity and impartiality. The author is a Hong Kong veteran commentator and PhD in law at Peking University.
In comparison, ThunderGo has a much larger adverse effect than a typical exit poll. If the election authority had exercised supervision on exit polls previously, it has to pay greater attention to ThunderGo.”
However, it is noted that ThunderGo has violated the said legal framework as follows:
First, ThunderGo published the so-called “opinion poll data” before the close of the LegCo poll, rather than after the close of the poll. The intention and objective of ThunderGo were clear — to serve as a canvassing poll for candidates it preferred without legal basis.
Second, ThunderGo made specific remarks or predictions on the performance of individual candidates when disseminating the so-called “opinion poll”, which served its organizers’ agenda rather than being pure data or information. It can hardly be considered as fair, objective and impartial.
Third, on the polling day, canvassing activities suggesting voters not vote for any candidate are not allowed within no-canvassing zones (NCZ) except for static displays of election advertisements that are authorized by the returning officer or the presiding officer of the relevant polling station. In such a case, the presiding officer will try his best to ensure nobody carries out any activities — other than those permitted in NCZs — to persuade or induce any elector to vote or not to vote. It appears that ThunderGo’s messages through various channels on its recommended list of candidates for electors to vote or not to vote for should also not be allowed.
Following the Guidelines on Election-related Activities, I understand that apart from criminal sanctions, provided in the Legislative Council Ordinance, the EAC may give a reprimand or censure in a public statement. This will include the name of the person or organization in the relevant exit poll case. This should apply to ThunderGo, as it failed to heed or comply with the guidelines of a fair, objective and impartial election. Without a proper warning, and punishment, ThunderGo will likely repeat this.