Question of privilege regarding use of social media to report on parliamentary proceedings

Transcription

1 Question of privilege regarding use of social media to report on parliamentary proceedings Report of the Privileges Committee Fifty-first Parliament (Hon Christopher Finlayson QC, Chairperson) September 2015 Presented to the House of Representatives

2 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA 2

3 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A Contents Summary of recommendations 5 1 Introduction 6 2 Use of social media by Parliament and members 7 3 Guidance on use of social media 8 4 Reflections on members (including the Speaker) through social and other media 10 5 Official television coverage 11 Appendices A Committee procedure 12 B Speaker s ruling 13 C Proposed guidance 14 3

4 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA 4

5 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A Question of privilege regarding use of social media to report on parliamentary proceedings Summary of recommendations We recommend that the Speaker issue guidance based on existing rules of the House to all members of the House and the Parliamentary Press Gallery on appropriate use of social media to report on parliamentary proceedings (p. 8). We recommend that the Standing Orders Committee review the Rules for filming and conditions for use of official television coverage (Appendix D of the Standing Orders) as part of its regular review of the Standing Orders (p. 11). 5

6 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA 1 Introduction In May 2014, the Speaker referred to us as a general matter of privilege the implications for Parliament of people using social media to report on parliamentary proceedings and to reflect on members of Parliament (including the Speaker). Following the Speaker s ruling (Appendix B), we developed the following terms of reference: 1 Should any restrictions, or guidelines, apply to members use of hand-held electronic devices in the Chamber and committees, including accessing social media to comment on the proceedings? 2 Do the Parliament s procedures and rules need modernising to reflect the opportunities and challenges provided by social media, including where the House and committees use social media to disseminate information and facilitate public participation? 3 Are the current rules, that a. reflections on members (including the Speaker or other presiding officers) could amount to a contempt; or b. accusations against the Speaker that reflect on him or her in that capacity could amount to a contempt appropriate? If so, should these rules also apply to reflections or accusations made outside the House or on social media? In our terms of reference and consideration of this question of privilege, we have followed a similar approach to that taken by the Standing Orders Committee of the Victorian Legislative Assembly when it conducted a similar inquiry in See Standing Orders Committee of the Legislative Assembly of Victoria, Report into use of social media in the Legislative Assembly and reflections on the Office of Speaker, December

7 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A 2 Use of social media by Parliament and members We consider the growth in the use of social media to communicate about Parliament in recent years to be a positive development. Parliament has an active Twitter account and is exploring increased use of Facebook by select committees. A healthy democracy relies on public participation, and all communication channels need to be fully used to promote the work that occurs in the House of Representatives. For many members of Parliament, social media has become an essential tool for engaging with people and constituencies. At the time of writing, 105 out of the 121 members of the 51st Parliament had Twitter accounts. Members use of social media can provide a useful and interesting parallel commentary on what takes place in the House or in committees. Given the value of social media for popular engagement and its enduring presence in our lives, we have no intention of questioning whether members and others should use it to report on parliamentary proceedings. Rather, our focus has been on appropriate behaviour when using social media, including assessing the relevant rules currently in place. Our views on the use of social media by Parliament and its members reflect those expressed in the submissions we received, which recognised that social media has facilitated more and diverse communication about the work of Parliament. 7

8 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA 3 Guidance on use of social media Recommendation We recommend that the Speaker issue guidance based on existing rules of the House to all members of the House and the Parliamentary Press Gallery on appropriate use of social media to report on parliamentary proceedings. We believe that our examination of this question of privilege provides a timely opportunity to remind members and others of some existing and relevant parliamentary rules and practices, as well as some significant issues that should be borne in mind when using social media. We recommend that these various rules and practices be compiled to form standalone guidance to be issued by the Speaker (Appendix C). In particular, we wish to clarify any misconception about comments made by members on social media, including comments made from the Chamber. Such comments are not part of parliamentary proceedings, nor are they published under the authority of the House. Therefore, they may not be protected by parliamentary privilege. Members should be aware that anything said on social media is potentially actionable in court. Members should also be careful not to disclose confidential select committee proceedings or reports through any means, including social media. The House may treat any such breach of confidentiality as a contempt. 2 Another potential contempt that may be committed through social media is an adverse reflection on the character or conduct of a member (including the Speaker). 3 We discuss this issue in detail in the next section of this report. We consider that a ruling from 2012 on using electronic devices provides enough guidance on the practicalities of their use in the Chamber. The essential point is that members should be free to use any electronic device as long as it does not disrupt the business of the House or create disorder. On this basis (i.e., that using electronic devices should not create disorder), we propose a particular approach to members using electronic devices to film or take photographs from the floor of the House. This is a matter on which there are currently no rules, unlike the situation for the Parliamentary Press Gallery. Although we have no intention of restricting social media comment by members, including from the floor of the House, we are concerned about the use of electronic devices to photograph and film in the Chamber and select committees. Modern technology means that members can take photos and film unobtrusively, and new apps make it possible to stream footage taken on phones. Regrettably, on a small number of occasions, a member has taken a photo of another member in the House without permission and used it for political advantage. We consider this unacceptable. Access to 2 Standing Order 410(q). 3 Standing Order 410(o). 8

9 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A parliamentary proceedings is readily available through radio and television broadcasts and online streaming. At the same time, we recognise that events take place in the Chamber that are of special significance to groups of people or members, such as swearings in, maiden and valedictory speeches, and waiata after the third reading of a Treaty of Waitangi claims settlement bill. On these occasions, we believe it is appropriate for the Speaker to authorise members to photograph or film from the floor of the House. We also believe that the Speaker should be able to designate other events in the House as being of special significance and permit filming and photography, provided that members are fully forewarned. Before deciding on this approach, we discussed whether to allow members to film and photograph at any time in the Chamber, recognising that the use of social media has created expectations of increased informality and greater access to institutions and their representatives. Most of us believe that permitting filming and photography only on certain occasions is preferable to promote decorum and minimise the potential for disorder, both of which are important to public confidence in Parliament. The Chamber and select committee meetings rooms are working environments and we are concerned that if members are aware that they could be subject to candid filming or photography at any time, there may be negative effects on their behaviour or how they participate in proceedings. We wish to clarify that our recommendation on when members may or may not film and photograph in the Chamber applies only to when the House is sitting. We are not concerned about members taking photographs in the Chamber with guests or visiting groups when the House is not sitting. 9

10 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA 4 Reflections on members (including the Speaker) through social and other media Our terms of reference for this examination required us to review the current rules on adverse reflections on members in the light of the proliferation of political commentary and views on social media, and the reality that something said on social media can reach a large audience in a short time. Under Standing Order 410(o), the House may treat as a contempt the act of reflecting on the character or conduct of the House or of a member in the member s capacity as a member of the House. It is well understood that the House is a place of robust debate and that all members (including the Speaker and other presiding officers) can expect public comment and criticism if their performance warrants it. The intent of Standing Order 410(o) is not to stifle criticism of members. Rather, the intent is to provide a longstop provision to address reflections that damage or undermine the integrity of the House. The last instance of a contempt under this provision was in 2007, in response to an allegation that a particular member always delivered his vote in the interests of the tobacco and liquor lobbies. 4 Reflections against the Speaker or other presiding officers, and in particular any comment that alleges that they have been biased in performing their duties, are among the most serious reflections that can be made about members. 5 The rule that it is a potential contempt to make a serious allegation against the Speaker that reflects on his or her impartiality derives from the longstanding practice and tradition of the House of Commons. The rule serves to protect the reputation of the office of Speaker and the institution of Parliament. Reflections on the Speaker have been censured in New Zealand on only six occasions, the last of which was in Standing Order 410(o) has therefore been used only on rare and serious occasions. The rules about reflections on members have constitutional significance, and there is no evidence that they are being misapplied to inhibit the free speech of members, the media, or the public. Accordingly, we believe that the rules should be retained in their current form. 4 See Privileges Committee, Question of privilege relating to a reflection on a member in his capacity as a member of the House (I.17C, February 2007). 5 David McGee, Parliamentary Practice in New Zealand (4 th edition, Wellington, Dunmore Press), p Ibid. 10

11 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A 5 Official television coverage Recommendation We recommend that the Standing Orders Committee review the Rules for filming and conditions for use of official television coverage (Appendix D of the Standing Orders) as part of its regular review of the Standing Orders. We are satisfied that the House s rules and procedures do not require significant updating in response to the rise in social media use. However, we have become aware of an area of the House s rules that warrants re-examining. Both the Clerk of the House and the Chair of the Parliamentary Press Gallery observed that the rules for filming official television coverage of the House and for using this coverage (contained in Appendix D of the Standing Orders) could be relaxed to provide viewers with a truer picture of what takes place in the House. For example, providers of official coverage cannot currently show general disorder on the floor of the House and may only show a static wide-angle shot when a personal vote is taking place. Both the Clerk and the Chair of the Parliamentary Press Gallery also proposed removing the prohibition on the use of official television coverage for satire, ridicule, or denigration. This rule has never been used and risks making Parliament seem out of touch and wary of criticism. We agree, subject to the reservation that what is published does not amount to a false or misleading account of parliamentary proceedings. We note that the House may treat publishing a false or misleading account of proceedings before the House or a committee as a contempt, 7 which appears to be enough to deal with any seriously damaging use of official television coverage. Appendix D may be modernised in other ways. We consider that the Standing Orders Committee is in the best position to thoroughly review the rules for official television coverage as part of its regular review of the Standing Orders and encourage it to do so. 7 Standing Order 410(r). 11

12 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA Appendix A Committee procedure We met between May 2014 and September 2015 to consider the question of privilege. We received 15 written submissions and heard evidence from the Clerk of the House of Representatives, the Chair of the Parliamentary Press Gallery, and Professor Andrew Geddis. Committee members Hon Christopher Finlayson QC (Chairperson) Hon Simon Bridges Hon Gerry Brownlee Dr Kennedy Graham Chris Hipkins Hon Murray McCully Hon David Parker Rt Hon Winston Peters Grant Robertson Hon Anne Tolley Clare Curran replaced Grant Robertson for this item of business. 12

13 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A Appendix B Speaker s ruling Following discussion in the Business Committee, I have considered as a matter of privilege the recent use of social media to report on parliamentary proceedings and to reflect on members, including the Speaker. Although Standing Order 403 requires an allegation of breach of privilege or contempt to be formulated as precisely as possible so as to give the member or person against whom the allegation is made full opportunity to respond, no allegation against a particular member has been made out. However, the issue is a significant one. The longstanding and carefully nuanced rules of the House do not necessarily sit comfortably with the informal and instant nature of the new information and communications technology, with its potential to reach a very wide audience very quickly. Although members tweeting from the Chamber during question time or debates is clearly not a proceeding in Parliament, this is not well understood and nor are the House s wider rules protecting parliamentary proceedings and the various participants in them. Tweets may be actionable in the courts. Members could find themselves held in contempt by the House for publishing a false or misleading account of proceedings or reflecting on the character or conduct of the House or members. Furthermore, accusations that the Speaker has shown partiality in discharging his or her duties have in the past been judged very seriously, given the special position the Speaker holds. Some uncertainty surrounds the application of parliamentary privilege to official social media usage for disseminating information about what Parliament is doing and facilitating wider public participation. The level of engagement with social media is such that it cannot be ignored. I believe that the House s rules need to be examined in light of this new technology. Members and those participating in or commenting on parliamentary proceedings need to be clear about the rules and how they will be applied. Consequently, I have determined that a general question of privilege does arise. The question therefore stands referred to the Privileges Committee. 20 May

14 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA Appendix C Proposed guidance on use of social media General GUIDELINES ON THE USE OF SOCIAL MEDIA IN PARLIAMENT 1 Social media offers a unique opportunity for members to share news and information about aspects of their work with the public. It can instantly bring Parliament to a much larger audience than other forms of communication. It also enables members to engage with sections of the community who might not otherwise be interested in the institution of Parliament and its central role in New Zealand s system of representative democracy. 2 The importance of social media for popular engagement with Parliament suggests that members should be neither discouraged nor restricted from its use. Accordingly, these guidelines do not in any way restrict the use of social media for commentating on parliamentary proceedings. 3 Instead, these guidelines are intended to remind members and the Parliamentary Press Gallery of some relevant considerations about using social media in the House and its committees. These guidelines also clarify that, subject to some limited exceptions, members may not photograph or film other members on the floor of the Chamber or in select committee meetings. Use of social media by members in the House and committees 4 Members are reminded of the following: (a) Although using electronic devices in the Chamber and select committees is permitted, certain conditions govern such use. The main condition is that using electronic devices must not create disorder or disrupt the business of the House. 1 (b) Comments made by members on social media may not be covered by parliamentary privilege even if they have been made in the Chamber or a select committee meeting and relate to the business of the House or committees. Such comments are unlikely to be part of parliamentary proceedings or published under the authority of the House. Members may, therefore, be held legally liable for comments made on social media in the same way as they are for comments made outside the House. (c) The proceedings of a select committee are not open to the public except when evidence is heard and remain strictly confidential to the committee until it reports to the House. 2 Similarly, a report or a draft report of a select committee is strictly confidential to the committee until it reports to the House. 3 Confidential select 1 Speakers Ruling 17/3. 2 Standing Order Standing Order

15 QUESTION OF PRIVILEGE REGARDING USE OF SOCIAL MEDIA I.17A committee proceedings or reports should not be disclosed, contrary to Standing Orders, by any means, including social media. Any breach of the confidentiality of select committee proceedings or reports may amount to a contempt. 4 (d) Any public reflections on the character or conduct of a member in his or her capacity as a member of the House may amount to a contempt. 5 This extends to the presiding officers, which means that any public reflections on the character or conduct of the Speaker, Deputy Speaker, or Assistant Speakers in their capacity as a member of the House may also amount to a contempt. This applies to public reflections on any medium, including through social media. 5 Members should not photograph or film on the floor of the Chamber, except during (a) the swearing-in of a member (b) a maiden or valedictory statement by a member (c) a waiata in the Public Gallery after the third reading of a Treaty of Waitangi claims settlement bill; and (d) any other occasion approved by the Speaker. 6 Members should not photograph or film in a select committee meeting except with the agreement of those members. Use of social media by the Parliamentary Press Gallery 7 Members of the Parliamentary Press Gallery are reminded that all existing protocols and conventions that regulate media access to the House and its committees apply to their use of social media. These include the Protocol for interviewing members, filming, and photographing in Parliament Buildings issued by the Speaker and the Rules for filming and conditions for use of official television coverage set out in Standing Orders. 8 Any public reflections that members of the Parliamentary Press Gallery make on the character or conduct of a member (including the presiding officers) may amount to a contempt. 6 This applies to public reflections on any medium, including through social media. 4 Standing Order 410(q). 5 Standing Order 410(o). 6 Ibid. 15