In the Name of Transparency: The Modernization of the Canada Elections Act
This past year has marked a peak in interest and scrutiny into the well-being of the democratic process around the world, with a particular focus on online activities and messages. In this context and with the October 2019 general election in sight, the Canadian Government sped the Elections Modernization Act1 (also known as Bill C-76) through parliament. This overhauled version of the Canada Elections Act2, which came fully into force on June 13, 2019, created a wide range of new obligations, affecting both online and offline activities and communications. Among the most important additions include:
- Expanding the scope of regulation of election-related content and creating a Pre-Election Period, which begins on June 30, 2019, during which many of these new regulations on election-related content are applicable;
- Adding ad transparency measures regarding the publication of election-regulated content;
- Imposing obligations on highly trafficked online platforms;
- Adding prohibitions on foreign intervention in elections; and
- Expanding the powers of the Commissioner of Canada Elections.
This article, the first of a short series outlining these changes, sets out and explains the amendments made to the Canada Elections Act that: (i) expand the scope and the definitions of regulated election messages; and (ii) create new obligations for online platforms and political actors that are aimed at increasing transparency in the transmission of regulated election content.
I. Expanding the scope of regulation of election-related content
The most significant changes to the scope of regulation of election-related messages is the creation of a new category of regulated content – Partisan Advertising – which is regulated during the Pre-Election Period which begins on June 30, 2019. Partisan Advertising is subject to transparency requirements and other obligations related to financing, reporting and record keeping. Further changes affect how Election Surveys are properly conducted and published.
a) Partisan advertising
In addition to existing provisions regulating Election Advertising published during the Election Period (i.e. during the campaign), additional provisions now regulate election-related advertising published during the Pre-Election Period. This new category of regulated content called Partisan Advertising includes any advertising message that promotes or opposes a political party, potential candidate, nomination contestant or leader of a political party.
Partisan Advertising, unlike Election Advertising, does not include advertising messages taking a position on an issue with which a political figure or party is associated. There are certain other exclusions, including where an individual publishes his or her own personal political views on the internet on a non-commercial basis.
Partisan Advertising is subject to transparency regulations, much like Election Advertising, and must indicate in the advertisement itself who authorized its transmission. For certain political actors, this means that they have to indicate the advertisement was authorized by their authorized agent. For all other persons placing Partisan Advertising, known as third parties under the Act, the advertisement will have to mention the name and contact information of the third party who authorized its transmission. These disclaimer requirements for third parties apply equally to the transmission of Partisan or Election Advertising messages, published on online platforms or otherwise.
b) Elections surveys
The definition of Election Surveys was amended by Bill C-76 and now captures opinion surveys aimed at questioning individuals: (i) on whether they intend to vote in an election; (ii) on who they voted for, or will vote for, in an election; or (iii) on issues with which a political party or candidate is associated. The scope of the issues captured by this definition is broad and could include any issue on which the parties take a position during an Election Period. The Act imposes specific requirements on the sponsors of Election Surveys and on the first person who transmits Election Survey results to the public. These requirements vary depending on the statistical and/or broadcasting methods used to conduct the Elections Surveys and publish its results.
II. New ad transparency requirements for online platforms and political actors
a) The scope of the newly imposed requirements
Beginning on June 30, 2019, the owners or operators of an online platform that sells, directly or indirectly, advertising space to political parties, registered associations, nomination contestants, potential candidates or candidates, or registered third parties (collectively, the “Political Actors”) will have to publish on the platform a Registry of Partisan and Election Advertising messages published by these Political Actors on the platform during the Pre-Election and Election Periods.
The Registry will have to include an electronic copy of each Partisan and Election Advertising message published on the platform and the name of the person who authorized its publication, namely the authorized agent(s) of the Political Actors. The online platform must include this information in the Registry from the time of the first publication of the Partisan or Election Advertising. The Registry must then remain on the platform for two years following the end of the Election Period. The online platform must keep the information from the Registry for five additional years.
To allow for this level of transparency, any Political Actor that requests the publication of a Partisan or Election Advertising message on the online platform must provide the platform with all the information necessary for the owner or operator to comply with the Registry requirements.
b) Who is subject to the new requirements
Now that the scope of the Registry requirements is known, then comes the question: “Who do these requirements apply to?” First, know that under the Act “online platform” means any Internet site or Internet application that directly or indirectly sells advertising space on the site or application. The site or application has to have a certain volume of traffic to be subject to the Registry requirement. The threshold depends on the main language in which the content is available. Specifically, if in the year prior to the Pre-Election or Election Period a site is visited on a monthly basis 100,000 times (for sites mainly in a language other than English or French), 1,000,000 times (for sites mainly in French), or 3,000,000 times (for sites mainly in English) by users in Canada, it is subject to the Registry requirement.
With this definition in mind, we can easily envisage that online newspapers, music streaming platforms, apps that sell ad space and online search operators, to name only a few, may also be subject to these new requirements. The obligation to publish and maintain the Registry of Partisan Advertising is already in force and the burden will only increase at the beginning of the Election Period, at which time all ads related to political issues will also have to be included in the respective Registries of these online platforms.
Illustrating the challenges associated with these new rules, Google3 and Twitter4, two of the most significant online platforms captured by the Act, have indicated that due to the complexity of adhering to these obligations, they will be banning or limiting election-related advertising from their platforms.
This increased scope of regulation and the new obligations imposed on the online hosts of Canadian election-related content creates an increased zone of risk not only for political actors, but also for companies that may not otherwise think that they are involved in election-related activities. To accompany these regulations and obligations, the Act puts in place a regime of administrative monetary penalties, fines, and even imprisonment for failure to comply with the Act, which all fall within the increased authority and investigative powers of the Commissioner of Canada Elections.
As we go forward in our short series, we will turn to the new powers of the Commissioner to enforce the Act and the move toward barring any interference from foreigners in the Canadian democratic process.