Tonga Broadcom Ltd. was fined $1,500 pa’anga to be paid within 60 days after being convicted of broadcasting an interview of the Deputy Prime Minister Semisi Sika on the polling day of Tonga's General Election in 2017.

This case was an appeal by the Police against a decision of the Principal Magistrate, acquitting the local broadcaster of the offence made against 23(1)(g)(i) of the Electoral Act.

In a ruling on May 6 at the Supreme Court, Lord Chief Justice O.G Paulsen allowed the appeal by the Police convicting Broadcom of the offence and quashed the earlier decision by the Principal Magistrate.

He said the Electoral Act it makes it an offence to broadcast at any time on polling day before the close of the polls any statement advising or intended or likely to influence any elector as to the candidate for whom the elector should or should not vote for.

On November 16, 2017 there was a General Election in Tonga. 

Hon. Semisi Sika, the Deputy Prime Minister and Minister of Tourism and Infrastructure was standing for re-election as a People's Representative in the Tongatapu No. 2 electoral constituency.

At around 7:00am on polling day, Broadcom broadcasted a lengthy interview with Hon Sika, including accompanying commentary by the broadcaster's employee.

The Court was told, Hon. Sika had given the interview a few days earlier and was aware that it would be broadcasted by Broadcom, but was not aware that it would be broadcast on polling day. 

The broadcast highlighted that the General Election was being held that day. It then focused on the work and achievements of the candidate as Deputy Prime Minister and Minister of Tourism and Infrastructure, the need to continue this good work and his desire to be returned to finish off the work for the benefit of Tonga. It then urged listeners to exercise their vote.

Another candidate standing for election in the No 2 Tongatapu constituency heard the broadcast and was upset by it and laid a complaint, and its prosecution started at the Magistrate's Court.

Magistrate

The Chief Justice said, in the decision by the Principal Magistrate setting out 23(1)(g)(i) and the elements of the offence it created, having considered all the evidence, concluded that the elements of the offence had been proven. 

However, the Magistrate had acquitted Broadcom because he found that the second proviso to the section applied. That proviso states: provided also that this paragraph shall not restrict the publication of any candidate's name in any news which relates to an election and which is published in a newspaper or other periodical or in a radio or television broadcast. 

The Police then appealled on the grounds that the Principal Magistrate was wrong on fact and law to find that the proviso applied.

Acting Attorney General, 'Aminiasi Kefu argued that the broadcast went well beyond the publication of Hon Sika's name in connection to the election and was a clear statement of support for him. It was, he submitted, intended and likely to influence electors as to the candidate they should or should not vote for.

On the other hand, Broadcom argued that the appeal must be dismissed because the Court had no right on appeal to review the evidence or reach a conclusion contrary to that of the Magistrate; 
the Police did not prove to the required standard that the broadcast was intended or likely to influence any elector; and 
the broadcast was a news broadcast and therefore protected by the proviso, said the Chief Justice.

Polling Day vs News 

Section 23 appears in Part IV of the Electoral Act, which is, headed 'Election Offences'. This part creates offences to ensure that elections are conducted fairly and honestly. 

Section 23(1)(g)(i) creates a blackout period prohibiting on polling day the publication, distribution or broadcast of statements likely to influence any elector as to how they should vote. It balances, in the public interest, rights to campaign and free speech with the maintenance of a free voting environment. 

An offence may committed under s. 23(1)(g)(i) when the effect of a statement is likely to influence an elector whether or not that is the intention and whether or not it is proven to have had that effect in fact.

The Chief Justice said, the proviso is unambiguous and of very narrow compass. 

It does not, as Broadcom submitted, create a general exception for publications or broadcasts that might be considered 'news'. It recognized that on polling day the media has a legitimate interest in reporting on the election but not to the extent of disseminating information influencing the manner in which electors vote. For that reason, the proviso applied only to the publication of 'any candidate's name' in news as it relates to an election, he said.

He agreed with the appellant (Police) that the proviso does not apply.

"This was a broadcast of an entire and lengthy interview with Hon Sika emphasizing his achievements in Government and his desire to be returned to carry on and finish his work. It portrayed him in a positive light and as a selfless servant of the people. All of this was sandwiched between comment stating that the General Election was being held that day and encouraging electors to vote because every vote is vital because we are to elect those who will represent us in Parliament."

The broadcast was, not withstanding Mrs Tohi's assertions to the contrary, a clear expression of support for Hon. Semisi Sika in the election. I do not accept Broadcom's argument that on appeal this Court cannot review the evidence and reach a conclusion contrary to that of the Magistrate, he said.

In addition, this appeal was brought under s.74 of the Magistrate's Court Act.

He said, on such an appeal this Court was not bound to accept the findings of the Magistrate on the facts or the law.

Broadcom's next argument that it was not established that the broadcast was intended or likely to influence any elector.

He said it was not necessary to prove an intention to influence the vote but considering the broadcast as a whole, it is an inescapable inference that was indeed the respondent's intention.

The Principal Magistrate held that the content of the broadcast was convincing that Hon Sika is a good guy to vote for Parliament.

"I agree that was the impression created and plainly it was the very sort of information that was likely to influence electors to vote for him."

Finally, Broadcom submitted that the broadcast was 'news’ broadcast and therefore protected by the proviso.

It argued that any broadcast on polling day is allowed if it is a news item and that this was a news item because, amongst other reasons, Hon. Sika did not pay for it to be broadcast and it did not contain trailers identifying it as an advertisement for him, he said.

"These arguments are fallacious because the proviso does not protect news items. It protects the publication of candidates' names in news items and no more than that." 

The Principal Magistrate was correct to find that all elements of the offence under s. 23(1)(g)(i) were proven beyond reasonable doubt. However, he was wrong to find that the proviso applied and acquit the respondent, said the Chief Justice.

'Aminiasi Kefu represented the Police appeal. Katalina Tohi appeared for the respondent, Broadcom.