South Australian Web Anonymity Law Backfires

Stuart Freen is a JD candidate at Osgoode Hall Law School.

South Australian parliament recently came under fire for passing a new anti-anonymity amendment to its electoral act. Described by the Australian media as “draconian”, the new law would require online commenters, bloggers and even talk radio show callers to fully identify themselves before providing political commentary on an upcoming March 20 state election.

The ill-thought-out move sparked a massive internet backlash, prompting Attorney-General Michael Atkinson to publically renounce the law. Nevertheless, it raises some interesting issues around anonymity on the internet, and could indicate an increasing concern among western politicians with controlling online speech.

The new s. 116 of the SA Electoral Act reads:

A person must not, during an election period, publish material consisting of, or containing a commentary on, any candidate or political party, or the issues being submitted to electors, in written form, in a journal published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material or the programme in which the material is presented contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of the material.

Violators would be liable to face stiff fines of $1250 (for individuals) or $5000 (for corporations). It is however unclear how the law would actually be enforced, or what would stop individuals from using fake identities.

The amendment seems to have been motivated by the AG’s concerns over corporations planting fake commenters and bloggers in an attempt to sway public opinion. Mr. Atikinson specifically called out Adelaide based news blog, calling it a “sewer of identity theft and fraud.” Mr. Atkinson also said, in hansard: “You want to know that a real person of a real address is publishing the material and takes responsibility for it.” Interestingly, the amendments were actually supported by the opposition SA Liberal party.

Perhaps predictably, a huge internet backlash erupted, prompted in part by an editorial in The Advertiser, one of SA’s largest newspapers and the owner of Adelaidenow. After thousands of comments were posted to Adelaidenow in opposition to the law, the AG begrudgingly announced that the law would not be enforced and would be repealed after the election.

Though undoubtedly an ill-advised political misstep, this episode may tell us something about governments’ willingness to dabble in controlling internet speech. It is unclear whether Mr. Atkinson’s concerns over Adelaidenow planting fake comments were true, but it likely would not surprise many citizens. While perhaps cynical, it is worth noting that the same organization that Mr. Atkinson singled out for creating fake, fraudulent comments ultimately led the charge against the new amendments. Media companies are not known for being apolitical and it’s not inconceivable that they would resort to such cheap tricks. Even here in Toronto, one city counselor recently accused a “citizen” of being a plant from a local conservative talk-radio show (in an angry outburst, no less).

Clearly the internet provides fertile grounds for free speech and grassroots political activism, and anonymity plays a big part of that. Yet, there is a very real concern that the internet is being hijacked by corporate lobbyists who merely want it to look like their causes have grassroots support. The practice has even been given a quirky name: “Astroturfing.” Get it? Corporate interference in politics has become a big issue in many western countries, including the United States where President Obama recently admonished the Supreme Court over a judgment which would allow unlimited corporate campaign spending.

There will almost certainly be a trend in the coming years for governments to try and limit faux-grassroots activism, yet if this South Australian episode teaches anything it is that it will be a tough sell. Restricting the ability of businesses to post political commentary online anonymously almost necessarily restricts the rights of real people, too, something which internet users have thus far been unwilling to accept.