Six years ago, slain investigative journalist Daphne Caruana Galizia was arrested over reports she had used her blog to influence voters on the “day of reflection” in that year’s election. The electoral law lays down that it is unlawful to print and broadcast any material likely to influence voters in the exercise of the franchise a day before polling and on the actual day of the election. Fast forward to May 24 and 25 this year and the political scenario presented a case in which the two main political parties made a mockery of the same law on the social media.

The Electoral Commission and the police have been alerted to this but it remains to be seen whether or not any action will be taken against them. Or has the time come to finally put a stop to what to all intents and purposes has become an unmanageable legal condition largely outdated in the age of the internet, apart from the fact that it is difficult to determine what would ‘influence’ a voter because that, of course, depends very much on the individual? Should the condition, therefore, be struck off altogether from the electoral law or should it be modified?

While newspapers, radios and television stations dutifully abided by the law, as they have done over the years, the two main political parties kept political advertisements “active” in their Facebook pages both on Friday and, even, on polling day. Individual candidates used the social media too in their campaign.

The law banning the publication and broadcasting of material that could influence voters makes no specific mention of the social media because the legislation was enacted at a time when such means of communication were nowhere near what they are today. Even so, the lawmakers had extended its effectiveness to also cover other means of communication.

Legal provisions laying down a period of reflection, generally a day before the election and on election day, exist in other countries. Only the other day, the German Chancellor’s successor designate sparked a furore with an apparent call for a limit to free speech around elections. By contrast, in the US, the Supreme Court ruled in 1992 that campaigning could only be limited on election day in a small area around the polling station. Any broader ban on speech would be considered unconstitutional.

Besides the ‘day of reflection’, also called a day of silence, or blackout, other countries have banned opinion polls close to an election. However, with the rapid growth of the social media, many are questioning the relevance of the ‘day of reflection’. New provisions in the law could very well cover the social media more specifically than it is now but how will they be enforced? Particularly strange is that, according to one survey, an absolute majority of the Maltese, 79 per cent, agree that the ‘day of reflection’ ought to be respected by the social media. The opinion is similar to that found across the EU.

Yet, does not this contrast sharply with the actual situation on the ground? On the other hand, if the provisions governing the ‘day of reflection’ were to remain on the statute book it would be a dereliction of duty on the part of the police not to take action when the provisions are contravened.

Clearly, though, there is urgent need for a rethink of the law to make it compatible with the situation as it has evolved in the age of the internet.

This is a Times of Malta print editorial