Today begins the two-day municipal elections. But already three days ago, the period began to run, during which a fine of up to 30 thousand kroner could be threatened even for seemingly innocent reminders of voter preferences from previous elections or opinion polls on social networking profiles. This is exactly the conclusion reached by the Electoral Commission of the Supreme Administrative Court (NSS) in Resolution No. Volume 8/2016 was sealed eight years ago. Perhaps the decision would have been forgotten if the lawyer had not mentioned the constitutional dimension on Twitter Marek Antos (He is also the owner of Internet Info that publishes Lupa – Editor’s note).

Let us recall the full wording of the relevant provision of Article 30, Paragraph 2 of Law No. 491/2000 Coll. , regarding municipal council elections and regarding the amendment of some laws, where the prohibition of publishing pre-election opinion polls is stipulated.

(1) For the election campaign, the mayor may allocate an area for pasting election posters, at least 16 days before the election day. The possibility of its use must comply with the principle of equality of the candidate electoral parties. The municipality will provide the election poster area to be used free of charge; The provisions of the special law governing the management of political parties and movements shall not apply to such unjustified performance.

(2) During the period beginning on the third day before the election day and ending with the end of voting, the results of the polls may not be published before the polling and election in any way.

(3) On election days, electoral propaganda and promotion of electoral parties and independent candidates in the building in which the polling station is located and in its immediate surroundings is prohibited.

The penal provision in § 64 is related to this:

Commits the crime of a natural person who, from the third day before the day of the municipal council elections and ending at the end of the vote, publishes pre-election and pre-election polls. In order to discuss the offense, the competent regional office is based on the place where the natural person who published opinion polls before the elections and elections was registered for permanent residence. A fine of up to 30,000 CZK can be imposed for this offence. A special legal regulation is applied to misdemeanors and their procedures.

NSS Electoral Senate led by the President Tomáš Langášek Interpret the term “publishing in any form” as follows: “To publish opinion polls prior to elections and opinion polls prohibited by the aforementioned Article 16 of the Elections Law. (In the case under trial, it was a matter of elections to the Senate, the same prohibition was regulated in paragraph 16 – author’s note) Posting on the Internet, specifically in the public profile on the social network Facebook, should also be considered. Although this is a method of publication that the legislator could not have thought of when he adopted the just-mentioned ruling, given that Facebook did not exist yet at the time, the only important thing is that even the publication of a pre-election poll via Facebook must be considered a publication, in Whereas it may cause precisely those consequences which the legislator attempted to prevent by establishing a limited “electoral silence” in the form of a ban on the publication of opinion polls before elections during the time fixed by law.”

At this point, let’s go back to history a little deeper, to October 2010, when MF Dnes, during the pre-election moratorium, published an article entitled How will you color after the weekend? with a table”Surveys: what results to expect‘, containing pre-election results from Prague, Brno and Ostrava. She was fined 100,000 CZK from the Prague municipality. She defended herself with an appeal, an administrative case, and later a cassation complaint, and did not succeed in even a single remedy. In the end, The NSS dismissed the cassation complaint under ruling No. 6 as 167/2015–37. In it, one can read, among other things, that the newspaper defended itself by saying that the poll had already been published in Otázky Václav Moravec and also indicated unconstitutionality Article 65 of the Municipal Elections Law.While the NSS considered the first objection to be unfounded, it did not deal with whatsoever unconstitutionality, as the paper only applied this objection as part of a cassation complaint.

The justices have referred to this case and continue to develop their reasons. The purpose of the ban, they say, is generally to reduce the influence of pre-election polls on voter decision-making just before elections, to introduce a certain “quiet period” for thinking when the voter is not influenced by opinion polls, and to protect the public from systematically flawed and potentially biased polls Which parties or candidates are no longer able to defend themselves in the short time before the elections.

Personal guesses about how the election will turn out are good

In order to post a poll before an election or an election poll on a Facebook profile to cause consequences that are punishable by a fine, it cannot simply be an expression of public opinion about who should win the election. It should be a real pre-election survey. The Electoral Senate also addressed the comparison of traditional print media and social networks. He acknowledged that the Internet in general allows for much faster responses than print media. However, he sees the problem in the fact that “often the people involved do not even know about the publication of a prohibited survey, unlike some of their potential constituents”.

While such a violation of the law is sufficient for a fine, it does not invalidate the election. In a six-year-old case, the court ruled on a motion to annul the election Zdenic Nitra In the electoral district No. 70 in the city of Ostrava. Then take a more conservative approach. “The effects of such unlawful posting of a pre-election poll are limited by the number of views of the particular Facebook profile or profiles associated with it.”

NSS admits that the Facebook profiles of some very well-known people have such a following that the surveys posted by them can reach hundreds, thousands and even more. “Although it is not possible to establish exactly how many people they have seen in court proceedings, one can probably get a rough idea of ​​the order in which the number of people who have seen them may move, and compare it with the number of people who will be affected by them, in order to” obfuscation” over the election results,” the governors declared and continued to think: “Although the influence of social networks cannot be underestimated, it cannot be overlooked and it also contributes to flooding the public space with such an amount of information that its amplification occurs. In other words, even Social networks contribute to the inverse relationship between the total amount of available information and the weight of individual information.

Between the lines, one can read a certain argument from the Brno guards for the rules of elections. On the other hand, even a pre-election recycled poll posted on a user profile of a social network is sufficient reason for a fine, and on the other hand, the large number of posts there reduces its harmful effect to the point that it cannot invalidate the election.

It’s good to keep in mind these days that the ban on polls before the elections must be adhered to by everyone everywhere, including on social media. Unless someone wants to subject the specific interpretation of the NSS to a constitutional review, which is still missing on the matter. Furthermore, attorney Marek Antos points out:

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