The Law and Business of Social Media
February 25, 2013 - Asia

Decades-Old Japanese Electioneering Law May Get a Web 2.0 Refresh

Here at Socially Aware, we report regularly on the difficulties inherent in applying long-established laws to new technologies like social media. An interesting example of this is unfolding in Japan: it concerns a decades-old law that has been interpreted to prohibit candidates, parties, and even the voting public from engaging in most campaign-related activities on the Internet during the run-up to any given election. But this may be about to change.

The law at issue is called the Public Offices Election Law or Koushoku Senkyo Hou (POEL). As Professor Matthew Wilson describes in his 2011 article, “E-Elections: Time for Japan to Embrace Online Campaigning,” the POEL, enacted in 1950, strictly regulates which campaign activities can be conducted in Japan during the so-called “official campaign period”—a period that immediately precedes each national, prefectural and municipal parliamentary election and that generally lasts from two to three weeks—and precisely how those activities can be conducted. As Professor Wilson summarizes neatly, “Essentially [the POEL] is a collection of ‘thou shall Nots’ or barriers involving the time, place, manner, and methods associated with elections and campaigning.”

Given that the law was enacted over sixty years ago, needless to say, it does not explicitly address modern, computer-mediated communications, let alone social networking. But Article 142 of the POEL does prohibit, among many other specific restrictions, the dissemination of “documents and drawings” during the official campaign period for electioneering purposes, other than the distribution of a limited number of postcards and leaflets as otherwise specifically permitted by the law. And importantly, the Japanese government has consistently interpreted this “documents and drawings” limitation to apply to online activities, including email and social media, such as Twitter feeds. Reportedly, Japan’s Ministry of Internal Affairs and Communications continues to hold the view that Internet-based electioneering activities are governed by the POEL.

The upshot is that, even though Japanese political parties and candidates routinely use blogs, Twitter profiles, Facebook pages and email for general political purposes, those same parties and candidates typically freeze their existing blogs, websites and online presences, refrain from creating new ones, and suspend other campaign-related online communications during the brief periods immediately preceding elections—periods many would consider to be the most crucial times to engage the voting public. And not only does the law apply to political parties and candidates, but it also restricts the general public from engaging in campaign-related activities online.

In any case, the POEL’s prohibitions on Internet and social media electioneering may be nearing a makeover. According to a report in the Japan Times, on February 13, 2013, all eleven major political parties in Japan’s National Diet tentatively agreed to relax this long-time ban on Internet-based electioneering, in time for the House of Councillors election in the summer of 2013.

Glimmers of this news have been on the horizon for some time. In December 2012, Prime Minister Shinzo Abe announced his view that Japan’s strict prohibition on Internet campaigning should be lifted. (Prime Minister Abe is active in social media—witness his Facebook page, with over 230,000 followers, and his Twitter feed, with over 70,000 followers as of the date of this entry.) Other major political figures in Japan have expressed similar views, including Goshi Hosono, Secretary-General for the Democratic Party of Japan (DPJ), and in December 2012, Toru Hashimoto, Mayor of Osaka and co-leader of the Japan Restoration Party, reportedly took to Twitter itself to challenge the logic of the POEL’s restrictions on Internet campaigning.

Japan’s ruling and opposition political parties continue to disagree on the details of how to liberalize the POEL. For example, as the Yomiuri Shimbun reported in early February 2013, the then-current proposal by Japan’s recently elected Liberal Democratic Party (LDP) would have permitted candidates to send campaign-related emails during the official campaign period only to people who had agreed to receive such emails in advance (an “opt-in” approach), while the DPJ’s proposal would have permitted sending unsolicited emails to an unspecified number of people, but not to those who declined to receive such emails (presumably, an “opt-out” approach). The parties have continued to differ on other points as well, including whether only political parties, or both the parties and their respective candidates, should be able to engage in paid web advertising, and whether the right to send campaign emails during the official campaign period should be limited only to political parties and candidates or should extend to the general public. As of February 21, 2013, Japan’s two ruling political parties—the LDP and New Komeito—reportedly have decided to break off discussions with opposition parties and instead propose their draft bill to the Diet directly.

This isn’t the first time that Japan’s political realm has called for a relaxation of the POEL’s restrictions on online campaigning. As several sources point out, in late May 2010, preceding the summer House of Councillors election, ruling and opposition politicians collaboratively drew up a bill to amend the POEL to permit candidates and parties to update websites and blogs during the official campaign period (but not to permit electioneering emails or, at least explicitly, the use of Twitter). However, the Diet was unable to turn those proposed changes into law in time for the election.

Various objections have been raised against easing the POEL’s current restrictions. For example, many are concerned that relaxing the existing restrictions could lead to more harassment and libelous activity, particularly given the quasi-anonymity of Internet communications and the ability to pose as others on social media and “spoof” communications to mask their real origins. These concerns are not without cause: on June 4, 2010, promptly after the selection of Naoto Kan as Japan’s Prime Minister, someone—not Prime Minister Kan—registered a Twitter profile bearing the name “kann_naoto” and displaying Prime Minister Kan’s photograph, and posted a single tweet that translated as, “Using this chance, I have started Twitter.” The account was eventually removed, but only after it had attracted more than 10,000 followers. And then-Prime Minister Kan isn’t the only Japanese politician to have received the fake-profile treatment on Twitter. (Any final proposal to modify the POEL may call for stiffer penalties for using the Internet to defame candidates or spread false information during the official campaign period.)

Objections like these are balanced against the potential benefits of liberalizing the POEL, including the possibility that freeing up the use of social media during the official campaign period will not only help level the campaign playing field cost-wise and give the voting public a chance to hear from their candidates when needed most, but that it will help increase voter turnout among young voters who use social media for … well, practically everything else.

The use of social media by politicians in Japan has exploded over the past few years: according to tracking site Politter, over 560 current and former Japanese politicians are actively tweeting. In view of this, changes to Japan’s Public Offices Election Law could have a major impact on the Japanese electioneering landscape.