The former minister who drafted the 1991 ‘day of reflection’ law, believes the 24-hour pre-election period of silence in political campaigning and media should be removed “as it is no longer enforceable” in an era of social media.

“I think it should be changed as it’s no longer enforceable,” said Austin Gatt, who was responsible for preparing and ensuring the implementation of all plans for the General Elections of 1992 and 1996.

Social Policy Minister Michael Falzon, who in the early 1990s was responsible for organising the electoral process for the Labour Party, said that it would be “commendable” to improve the law that was drafted at a time when the media landscape was different.

“All laws reflect the reality of the time. I see nothing wrong in discussing to move forward,” he said adding that the current law was “more honoured in the breach than in the observation.”

The goal of the 24-hour period of silence is to give voters a period of reflection without being influenced by external elements. But in reality, while traditional media are muzzled by the law, social media and online platforms continue firing political messages in the form of advertising campaigns, posts and commentary.

Media veteran Fr Joe Borg, however, questioned whether legacy media should be put on par with social media.

“It does not really make a substantial difference. But my hunch is that we should not. Silence in those media is symbolic. It is just a form of appeal, perhaps an ineffective one, that we should stop and reflect,” he said.

Looking back, he said, Malta never had a day of reflection. “What existed was a day when radio, TV and newspapers could not publish political material about the elections. Phone calls or direct personal contact, which could be more effective than an article in a newspaper or a TV programme, were always possible,” he said.

What does the law say?

Traditional media have long observed the ‘day of silence’ law that was originally laid down in a law called the Electoral Polling Ordinance.

The latter was replaced by the 1991 General Election Act that followed from heightened political tension during the 1981 general elections, Gatt explained.

The law states that no public meeting or public demonstration can be held on the day immediately preceding the commencement of voting – Friday, also known as ‘reflection day’, and on election day itself.

The ban also applies to print and broadcasting, specifically on “any matter likely to influence voters in the exercise of the franchise”.

Anyone caught breaching such provisions is still liable to a fine of €1,164.69 or even imprisonment for a term not exceeding six months.

Though the law, which was drafted before the advent of the internet, makes no specific mention of social media, it is still enforceable on this platform as it also applies to “other means of communication to the public”.

The proliferation of blogs and social networking sites since then has raised questions as to whether traditional media have been put at a disadvantage. One major justification for these changes was that enforcing the ban is virtually impossible, with hundreds of thousands of social media users.

In 2013, journalist Daphne Caruana Galizia was arrested in the middle of the night after the police turned up outside her residence in the wake of complaints that she had used her blog to influence voters during reflection day.

Following the same election, the police also questioned Labour candidates Deborah Schembri, Helena Dalli and Charles Mangion. However, no charges were issued.

In 2019 political parties forged ahead with their campaigns both on Friday and election day through heavy use of social media, particularly Facebook posts and sponsored adverts in clear breach of the provisions of the electoral.

The electoral commission referred the matter to the police.

In contrast, newspapers, radio and television stations had to strictly adhere to the ban by avoiding any form of political controversy for fear that this could be interpreted as an attempt to influence the electorate.

Not only in Malta

But are voters actually influenced so late in the day?

According to a European Parliament study carried out after the 2019 MEP elections, Maltese voters are the least likely – from all 27 member states – to make up their minds a few days before the election. In fact, only three per cent of Maltese said they decided who to vote for a few days before going to the polls.

Periods of silence in political campaigning during a given period before polling, are common across EU member states. According to Euronews, of the 27 countries in the bloc, nine impose no restrictions on candidates’ speech, political commentary or opinion polls in the media.

These are Austria, Belgium, Denmark, Estonia, Finland, Germany, Lithuania, the Netherlands, and Sweden. For the remaining 18, the media involved, the type of content, and the length of the silence period vary.   

Italy has among the strictest rules. The law on equal treatment prohibits sharing opinion poll results two weeks before the elections. All Italian TV, radio, and online media must also respect a silence period on the elections from midnight on Thursday, June 6. Portugal, Slovakia and Spain also have long silence periods.

Malta is among 10 countries to have a 24-hour rule of silence imposed on candidates and media about election related content and opinion polls. The others are Croatia, Cyprus, France, Greece, Ireland, Latvia,  Poland, Portugal, and Romania.