Political Financing Handbook for Third Parties, Financial Agents and Auditors – June 2021
To be used for non-fixed-date general elections and by-elections
5. Regulated Activities: Election Advertising in an Election Period
This chapter looks at the "election advertising" category of regulated activities that take place during the election period and provides examples.
It covers the following topics:
- What is election advertising?
- Election advertising expenses
- Other rules: tagline and blackout period
What is election advertising?
What is election advertising in general?
Election advertising is the transmission to the public during the election period of an advertising message that promotes or opposes a registered party or the election of a candidate.
It includes advertising that takes a position on an issue with which a registered party or candidate is clearly associated, without identifying the party or candidate. This is known as issue advertising.
What it means to promote or oppose a political entity
For the purposes of election advertising, in relation to a registered party, promoting or opposing may include but is not limited to:
- naming the party
- identifying the party, including by its logo
- providing a link to a web page that names or identifies the party
For the purposes of election advertising, in relation to the election of a candidate or leader of a registered party, promoting or opposing may include but is not limited to:
- naming the person
- showing a photograph, cartoon or drawing of the person
- identifying the person, including by political affiliation or by a logo
- providing a link to a web page that does any of the above
Issue advertising: Issues clearly associated with a registered party or candidate
Sometimes an issue is so clearly associated with a particular party or candidate that advertising on the issue has the effect of promoting or opposing them, even though they are not mentioned in the ad. The Canada Elections Act regulates this advertising on the basis that it promotes or opposes parties and candidates as effectively as ads that specifically mention them. The aim is to foster transparency and a level playing field.
But not all ads that talk about an issue are regulated. To be regulated, an ad must take a position on an issue that is clearly associated with a party or candidate. The broader the message, the less likely it is that a clear association will be found. Context is also important in determining whether or not an ad is regulated.
For example, an ad saying "We support the environment" or "We want a better economy" is unlikely to be associated with a particular party or candidate. It is generally a position of all parties, though their ideas for achieving the goal may differ. By contrast, an ad saying "We oppose building Highway X," when championing or opposing the highway has been central to one or more candidates' or parties' campaigns, is likely to be regulated.
There is no definitive list of issues that are regulated. It is parties and candidates who decide which issues are election issues during a campaign, and new issues or new positions can come to the forefront at any time.
Once an issue becomes clearly associated with a party or candidate during the election period, any future advertising that takes a position for or against the issue is regulated. Advertising that has already been transmitted is not retroactively subject to the rules.
A community group runs a non-partisan awareness campaign about a justice issue by placing 10 ads in local newspapers. A week into the election period, after three ads have run, a local candidate begins using the issue as a central part of their platform, and it becomes clearly associated with them. Any future ads on this issue are election advertising. If the expense for the seven remaining ads is $500 or more (including the original production cost), the group can choose to either cancel the ads or register as a third party. Note that if the ads are uncancellable, the group is deemed not to have incurred regulated expenses for them and is not required to register.
What qualifies as election advertising on the Internet?
Messages communicated over the Internet are election advertising only if:
- they meet the general criteria for election advertising (see What is election advertising? above), and
- they have, or would normally have, a placement cost (such as sponsored or boosted content)
For greater certainty, the following are not election advertising:
- messages sent or posted for free on social media platforms such as Twitter and Facebook (including a social media influencer's post that expresses their personal political views without being paid)
- messages sent by email or through other messaging services (including texts sent through a cellular or mobile network)
- videos posted for free on social media platforms such as YouTube and Instagram
- content posted on the third party's website (the ongoing expenses for creating and maintaining a website are not placement costs)
Note: If the third party decides to sponsor or boost social media content that was originally posted for free, it will become election advertising and require a tagline. In such a case, the third party has to comply with the tagline requirement.
Note: Although some communications over the Internet are not election advertising, they may be partisan activities and the associated expenses would be subject to the limit.
Information to be held in an online registry
Regulated online platforms (that is, websites or applications that meet certain criteria for monthly visitors or users) have to maintain a registry of political advertising.
When a third party purchases election advertising online, to make sure it complies with the law, it should:
- inform the platform that it is conducting political advertising
- ask whether the platform is regulated by the rules in the Canada Elections Act and needs information for its registry (unless the platform has already made this clear)
If the platform is regulated, the third party must provide it with:
- an electronic copy of the advertisement
- the name of the financial agent who authorized its distribution on the platform
The platform must publish this information in its registry from the day the ad runs until two years after election day.
Election advertising expenses
Expenses incurred for producing election advertising messages and transmitting them during the election period are subject to the election period expenses limit, no matter when the expenses were incurred.
This includes any non-monetary contribution received to the extent that the property or service is used in relation to producing or transmitting an election advertising message.
- The third party runs a national radio ad during the election period, promoting a policy issue with which one registered party is closely associated but not naming the party. This is election advertising. The advertisement has to include an authorization statement from the third party. The expense for the advertisement—including its scripting, recording and transmission—is an election advertising expense subject to the limit for the election period.
- The third party hires a media firm to place banners on websites and social media platforms during the election period, directing users to a video posted on YouTube that promotes a candidate. The clickable banners are too small for the authorization statement, so the statement is displayed at the start of the video. The cost of the banners is an election advertising expense subject to the limit for the election period. In addition, the expenses for the video—including design and production costs—are partisan activity expenses subject to the limit for the election period.
- In anticipation of a by-election, the third party mails out flyers in a riding asking voters to support a candidate who will be running. The by-election is called two days later, and the third party is unable to stop the distribution of the flyers. This is not election advertising and the expenses are not regulated.
- A group page has been created by the third party on a free social networking site during the election period. Volunteers manage the page and post articles to update followers on election issues important to the third party. They ask followers to vote for candidates who share the third party's views. Because the messages are posted for free, this is not election advertising. However, it is a partisan activity. The expenses related to creating and posting the messages are partisan activity expenses subject to the limit for the election period.
- The third party is on social media and notices a Twitter post from a news outlet with an article headline that is favourable to a registered party. The third party retweets the news outlet's post and also pays to boost the visibility of its retweet. The boosted post is election advertising. The third party's post has to include an authorization statement, and the expense to create and boost the post is an election advertising expense. There is no regulated expense for the news outlet's article or post.
For a detailed discussion of this topic, including guidance on influencers, please refer to Elections Canada's interpretation note 2020-05, Partisan and Election Advertising on the Internet, on the Elections Canada website.
Other rules: Tagline and blackout period
The third party must identify itself in or on any election advertising and indicate that it has authorized the advertising. The tagline must include the third party's name, phone number and civic or Internet address. It must be clearly visible or otherwise accessible.
The following wording is suggested: "Authorized by <name of the third party>, <civic or Internet address>, <phone number>."
For advertising on the Internet, where the authorization statement cannot be included on the advertising message because of its size, this is acceptable if the statement is made immediately apparent to the viewer by following the link in the advertising message.
The Canada Elections Act prohibits the transmission of election advertising to the public in an electoral district on election day before the close of all polling stations in the electoral district.
The blackout does not apply to the distribution of pamphlets or the posting of messages on signs, posters or banners during that period.
The blackout also does not apply to the transmission of a message on the Internet that was placed before the blackout period began and was not changed during that period—for example, an advertisement placed in a weekly online magazine.
However, if an Internet advertisement is actively transmitted to different users daily and the third party is able to control the transmission date—for example, a paid social media or search engine advertisement—the blackout must be respected. This means that existing organic content cannot be boosted on election day.