Overview of What We Heard – Consultation on Political Communications in Federal Elections

Introduction

In June 2020, Elections Canada started a conversation about how to regulate political communications in the digital era.

Discussion papers on three themes—political communications regulated under the Canada Elections Act (CEA), the impact of social media in federal elections and the protection of electors' personal information—were distributed to over 225 participants, who had a deadline of September 25, 2020, to respond. The papers were also posted on the Elections Canada website for public comment.

The discussion papers posed over 50 questions (see Annex 1) to generate discussion and ideas to assist in informing the Chief Electoral Officer's recommendations to Parliament after the 2019 general election.

Elections Canada received 48 written submissions from a diverse range of stakeholders and experts (see Annex 2). In addition, Elections Canada received 740 form letters, urging changes to the political financing regime and efforts to stop fake online advertisements.

Respondents focused on the themes that were important to them—80% responded to Theme 1, 60% to Theme 2 and 50% to Theme 3. They did not respond to every question; thus, statements such as respondents "stated," "thought," or "agreed" or "disagreed" should be considered in light of the number of respondents to that specific question, not the total number of respondents.

This document summarizes the key issues and considerations that were raised; however, it is not an exhaustive summary of every written submission. Views have not been attributed to specific respondents.

Theme 1: The Regulation of Political Communications Under the Canada Elections Act

Paid advertising and other communications. Several respondents stated that the CEA should not distinguish between advertising and other types of communication because the distinction is "increasingly blurry" and complicates the regulatory process. Removing the distinction could help uphold fairness and transparency regardless of the form of the communications. Those who preferred to maintain the distinction noted the importance of upholding fairness in advertising spending and not hindering political discourse. Regardless of their position, most respondents supported distinguishing between paid and unpaid communications, and preferred that the latter not be regulated.

Regulated periods. Respondents indicated that the current regulated periods (pre-election and election) were appropriate. Existing periods address concerns about permanent campaigning, and some respondents stated that extending the regulated periods could over-regulate, disproportionately impact third parties' non-election-related activities or hamper free expression.

Spending thresholds. Respondents thought that spending thresholds should be in place to trigger regulation, and many thought that the existing third party thresholds should be increased because the current threshold ($500) is comparatively low and does not account for inflation.

Respondents also acknowledged that increasing registration thresholds may pose challenges if the cost of digital campaigning or social media advertising remains low. Some noted that any election spending should trigger regulation because a threshold invites avoidance behaviour.

Issue advertising. The question of regulating issue advertising divided respondents. Some stated that it was important to continue to regulate issue advertising to avoid "sham advertising" and increase transparency. They noted that the existing regulations were not too onerous. Others thought that the CEA should no longer regulate issue advertising because the link between issues and parties and/or candidates is not always clear. Others noted that the current definition is too vague and suggested remedies, such as listing factors that constitute an issue advertisement in the CEA (as in Ontario's Election Finances Act or the federal Lobbying Act) or linking issues to party platforms.

Taglines. Some respondents thought that all communications should require a tagline at all times. Others stated that taglines should be required only for paid advertisements during regulated periods. Taglines should allow the reader to know who is communicating and provide the means to seek more information; however, requirements should be flexible enough to accommodate different communication methods. Many provided suggestions (e.g. URL, tags on initial communications only) and welcomed guidance from Elections Canada.

Public communications registries. There was some support for a publicly available registry of electoral communications because it would be beneficial for enforcement and research purposes. Some were opposed to increasing record-keeping requirements and cautioned that registries may have unintended consequences. Respondents disagreed about what entity should maintain a registry.

Third party activities. Some respondents welcomed the status quo or less regulation of third parties, stating that Elections Canada's interpretation of "partisan activities" and "partisan advertising" were too broad. Some questioned whether existing regulation was Charter-compliant. Others thought that "all activities" that promote or oppose a candidate or party should be regulated, including unpaid communications by political or third parties.

Third party funding. Respondents disagreed about whether sources of third party funding should be regulated. Some third parties viewed it as "deeply problematic" and thought that treating third parties like other political entities was not a good approach. Others thought that there was no reason not to subject third parties to funding limits that were similar to those for political parties and that doing so would increase transparency.

Member communications. Some respondents stated that communications with an organization's membership should be exempted from regulation, except in instances where such communications endorse or oppose a party or candidate.

Respondents noted that regulating internal communications with staff could hamper their day-to-day operations. Further clarity on defining membership was welcomed.

Provincial governments. Some respondents stated that provincial governments should be subject to regulation as third parties and that they should not have "free rein" to impact the vote. Including provincial governments as third parties could also enhance transparency and promote a level playing field. Others recognized that regulating provincial governments could be unconstitutional and exacerbate conflict among governments.

Government advertising. Some respondents indicated that limits on federal government advertising should be legislated to help guard against an unfair advantage and to prevent taxpayers' money from being used to promote government initiatives. However, respondents also acknowledged that there might be challenges in enforcing such limits.

Paid broadcasting provisions. Respondents disagreed about whether paid broadcasting provisions should be maintained or expanded. Maintaining existing provisions limits the influence of money in elections, provides "equal access" to parties and supports traditional media. Others thought that the provisions should be amended or expanded to "new forms of media" since they were increasingly becoming citizens' primary source of news.

Free broadcasting provisions. Respondents stated that the CEA's free broadcasting provisions should be maintained, with many citing the need to limit the influence of money in politics. One respondent stated that equal time should be provided to all parties, irrespective of electoral success. Other suggestions included expanding the provisions to online platforms and evaluating them in light of the current media environment.

Broadcasting Arbitrator. Respondents were in favour of maintaining this position and the mechanism for hearing appeals and complaints. Some also suggested expanding the mandate to include social media companies.

Fair advertising pricing. Respondents disagreed about whether the "fair price" requirement in s. 348 for paid broadcasting time should be expanded to cover all forms of media. Those who welcomed an expansion noted that "new media platforms" should be subject to the same obligations with respect to access and fair-priced advertising as traditional media are. Those opposed noted that it would be "difficult to apply," especially in the context of social media platforms, whose determination of "fair market pricing" may change based on, for example, keywords on a specific day.

Fair and equitable access to unpaid communications (search engines). The few respondents to this question stated, on the one hand, that all forms of media should have to meet the same requirements, but, on the other, that political actors already have access to free online resources. One concern was that such a requirement would artificially promote political content and that it would compel political speech. Others noted that a lack of algorithmic transparency makes this a challenging area to regulate and that further study is needed.

Blackout periods. Some respondents favoured maintaining opinion poll and advertising blackouts since they provide an "important safeguard" for transparency and accountability. Others noted that blackouts were irrelevant because advertisements and polls had little impact on polling day or were impractical.

False communications. Respondents were concerned about false communications and thought that the risks posed to elections and healthy democratic discourse should be addressed. Many who held this view cited the need for electors to have access to reliable information about the voting process, and some also noted that election advertising should be held to the same "truth and accuracy" standard as other advertising. Some welcomed further regulation (e.g. a social media arbitrator); others opposed expanding s. 91 prohibitions or viewed them as unreasonable limits on expression.

Theme 2: The Impact of Social Media Platforms in Elections

Digital advertising registry. Some respondents who replied to this question thought that the existing digital advertising registry requirements were sufficient or should be scaled back. Arguments against expanding the registry requirements included reducing the regulatory burden, creating enforcement challenges and avoiding duplication with voluntary transparency efforts. Those in favour of expanding the registry called for more transparency, especially in advertising targeting.

Respondents largely agreed that organic content should not be included in the advertising registry, citing concerns about free expression and healthy democratic discourse. Some noted the challenges of enforcing such a requirement. Many welcomed the creation of a centralized advertising registry.

Advertising targeting. Some respondents preferred no regulation of advertising targeting; they cited the risk of "exacerbating" the challenges of implementing the digital advertising registry, that it was not necessary because targeting is based on general categories or that it would reveal strategic political campaign decisions. Others stated that some regulation was needed to improve transparency around targeting criteria. Some argued that microtargeting should be prohibited, while others argued that parties should be held to the same rules as other advertisers.

Regulation of algorithms. Many respondents stated that algorithms should not be regulated; others were open to some regulatory action (e.g. an algorithm ombudsman). Several stated that regulation would be difficult and most likely outside Elections Canada's mandate.

Disclosing removed content or accounts. Those in favour of disclosure requirements argued that it would enhance transparency. Others stated that it was not needed because some platforms already remove inappropriate content and accounts, and they report that information. Some questioned whether platforms were able to comply with such a requirement.

Harmful or inaccurate content in private spaces. Some respondents suggested that platforms develop specific criteria to monitor private spaces and should guide users to the correct information. Many who welcomed action also stressed the importance of freedom of expression and privacy. Others argued that platforms are already making efforts and that they were best suited to manage the private spaces they offer.

Mis- and/or disinformation on the voting process. Some respondents argued that inaccurate information about the voting process should be removed and that either users should be directed to an official source of information or platforms should be regulated in the public interest. Others viewed regulation as unnecessary or ineffective because existing policies prohibit inaccurate content about the voting process and such content can be corrected by other users. One respondent noted that a review of platforms' use of artificial intelligence in moderating content was needed.

Elections Canada's role. Respondents noted that Elections Canada should continue to build trust in elections and in democracy; many suggested that the agency continue its efforts through public awareness campaigns or by asking political parties and/or social media platforms to sign codes of conduct on the use of social media in elections. Many stated that Elections Canada should continue using social media to reach electors, and some noted that it should collaborate with industry; many directly welcomed Elections Canada to collaborate with their organization. Those who encouraged collaboration noted that cross-stakeholder collaboration could facilitate "knowledge sharing" and result in carefully crafted regulations that consider Elections Canada's and stakeholders' interests.

Theme 3: The Protection of Electors' Personal Information in the Federal Electoral Context

Third parties. Some respondents to this question stated that third parties should not be subject to privacy requirements, either because it would restrict how information collected from members is used or because it was more important to focus on political parties. Others stated that third parties should be subject to privacy requirements since it would be useful to "standardize" the environment in which regulated entities operate. One suggested that further study was needed before regulating third parties.

Accountability and information sharing. Some respondents stated that political parties should be subject to the accountability principle of the Personal Information Protection and Electronic Documents Act (PIPEDA)—they would be responsible for shared data. Others thought that parties could not be accountable for how an organization it does not control manages data. Some stated that political parties should be prohibited from sharing personal information, while others stated that privacy policies should clarify when a party can share data, particularly with provincial parties. One respondent stated that Elections Canada should have a repository of political party privacy policies on its website.

Consent and publicly available information. Some respondents stated that political parties should be required to obtain express consent because it is the "backbone" of privacy protection. Others stated that consent is not required in all circumstances, such as when secondary uses are related to the initial purpose of collection and if the data is publicly available. Some noted that the definition of publicly available information is not clear and that such data can be combined and "misused" for purposes it was not intended for. Others suggested that consent should not be required at all for the same reasons that parties receive the list of electors, that electors could have the option of being on a do-not-call list and that more research into what constitutes meaningful consent was warranted.

Unacceptable use. Respondents noted the following unacceptable uses: selling personal information for profit, collecting or disclosing sensitive information and microtargeting for online advertisements. Others noted that it should be determined on a case-by-case basis and that more research is needed before regulating uses.

Data matching. Respondents stated that some regulation or a "total ban" on combining databases was welcome, while others preferred no limits or welcomed more transparency and research into how parties actually use data before regulating in this realm.

Consent to provide information to political parties. Respondents disagreed about whether electors' consent should be obtained to share the lists of electors and statements of the vote. Arguments in favour of consent were the low levels of elector awareness or lack of transparency and that electors should be able to opt out of sharing their information with parties. Others stated that consent should not be required since providing such data is an important part of democracy and useful for political parties. If consent is required, Elections Canada could obtain it at the point of collection.

Limiting collection; sensitive information. Respondents who favoured limiting collection noted that PIPEDA's limiting-collection principle could apply to parties and that sensitive information may be collected if the appropriate purposes are identified and with opt-in consent. Others argued for mandatory restrictions on collecting sensitive information because it was not necessary for campaigning and would limit microtargeting. One stated that political opinions are inherently sensitive and should not be collected without express consent.

Data retention. Respondents agreed that there should be restrictions on how long political parties could retain personal information, though they differed on what such restrictions should look like. Some said that data should be deleted once its purpose had been fulfilled and that parties should collect or retain only the minimum data needed for their purposes.

Identifying purposes. Many respondents stated that political parties should identify the specific purposes for collecting information because the current purposes set out in the CEA are too broad (communicating with electors, soliciting funds, electoral purposes) and do not place any limitations on collection or use. One respondent noted that the privacy policy requirement in the CEA was sufficient.

Access. Many respondents thought that Canadians should have the right to access their personal information from political parties, stating that it was a "fundamental right" to view, correct or delete personal information about oneself. Respondents were split on whether there were legitimate reasons for parties to decline access. One respondent said that parties should report the access requests they receive to a regulatory body to ensure compliance.

Safeguards and breach notification. Some respondents stated that security requirements or guidelines for parties that receive the lists of electors should be mandatory because it is a gap in the legislation. Others favoured the status quo (guidelines) and suggested that parties could be subject to an annual compliance audit. Others noted that ongoing work with security agencies and companies was beneficial and that political parties could benefit from security training. Some noted that PIPEDA's breach-notification provisions could apply to political parties, while a few cautioned against an increased regulatory burden for smaller organizations.

Compliance and oversight. Some respondents to this question stated that the Office of the Privacy Commissioner (OPC) would be the most suitable oversight body. Bringing parties under the existing legislation would ensure consistency and prevent further fragmentation of privacy protections. Some respondents, while welcoming OPC and/or PIPEDA oversight, stated that there may be a need to carefully craft exemptions for political parties. One respondent preferred that the Commissioner of Canada Elections or Elections Canada take an oversight role because the CEA was better suited to regulate parties; another respondent preferred self-regulation.

Offences and recourse. Some respondents noted that applying PIPEDA to parties would be appropriate; however, enforcement and penalties were lacking under the regime, and compliance would be more challenging for smaller parties. One respondent noted that the Commissioner of Canada Elections might receive complaints and that administrative, monetary penalties could apply. Another noted that individual recourse is available under PIPEDA.

Code of conduct. Respondents disagreed about whether a code of conduct would be sufficient to bolster oversight over political parties' collection and use of personal information. Some stated that a code of conduct would not go far enough, while others thought that a code of conduct would "provide a way forward" for better privacy protection. One respondent noted that parties should have enough resources to comply with a code or other forms of regulation.

Annex 1: List of Consultation Questions

Theme 1: Political Communications (23 Questions)

Definitions of advertising

• Should a distinction between advertising and other communications be maintained? Or should all communications, or all paid communications, be subject to regulation (reporting, taglines and limits)?
• Should regulation be limited to the election period and pre-election period?
• Should regulation be instituted only when an entity has hit a certain threshold of spending? If yes, what should that threshold be?

Issue-based advertisements

• Should the CEA cease to regulate issues-based communications and restrict its regulation to communications that specifically mention a party or candidate?
• Should elements indicating whether issue advertising promotes or opposes a party or candidate be included in the CEA? What would such elements be?

Identifying communicators

• Which communications should be subject to a tagline or other identification requirement? During what period (election period or outside election period)?
• Should the tagline or identification requirement include certain specified information, such as the name of the agent, the address or the phone number? Or should it vary to take into account the size and technology of the message?
• Should electoral communications such as phone calls, text messages and advertisements be subject to record-keeping requirements? If yes, should the record keeping be with an agency such as Elections Canada, with the communications companies or with political entities?
• Should the records be publicly available for inspection?

Third parties

• Are the new categories of "advertising," "activities" and "surveys" appropriate? Are they sufficient, or should third party regulation more clearly apply to all activities that promote or oppose a party or candidate? Which third party activities, if any, should be exempt from regulation?
• Should third parties be required to fund regulated activities out of contributions subject to limits (as opposed to using general funds)? Should only individuals be allowed to contribute, as is the case for other regulated entities?
• Should the threshold of $500 in expenses, which triggers third party regulation, be changed?
• Should communications with staff or members be exempted from regulation? How should "member" be defined?
• Should provincial governments be subject to regulation as third parties?
• Should limits on the federal government's regulation for advertising or communications during an election be placed in law?

Fairness in the sale of communications

• Should the paid broadcasting provisions be maintained? If yes, should they be expanded (for example, beyond traditional broadcasters)?
• Should the free broadcasting provisions be maintained? If yes, should they be expanded (for example, beyond "networks" or traditional broadcasters)?
• Should the position of Broadcasting Arbitrator be maintained? Should a similar position be created with authority over social media or other types of paid communications?
• Should the provision in s. 348 of the CEA, ensuring equitable and fair-priced advertisements on broadcast media and in print media, be expanded to all forms of media? If yes, please expand upon what such a provision might look like.
• Should a provision relating to fair and equitable access be expanded to unpaid access to communications, such as Internet search engines? If yes, please expand upon what such a provision might look like.

False statements and prohibited communications

• Should the opinion poll and advertising blackouts on polling day be maintained?
• Should any changes be made to the existing prohibitions in the CEA regarding certain false communications?
• Should the CEA contain additional content requirements? If yes, how and when should these be enforced?

Theme 2: Social Media (Nine Questions)

Transparency

• What changes, if any, should be made to the CEA's existing ad registry requirements?
• Should the registries be expanded to include content that is not an ad, such as organic posts?
• Should registries be required to provide other kinds of metadata beyond who posted the ad, such as its cost and/or targeting criteria?
• Who should be responsible for maintaining them? Why?
• What regulation, if any, should there be around the targeting of political advertisements?
• Should digital and social media platforms have legal obligations to report publicly on any accounts or content they have removed? If so, exactly what information should they be required to report publicly?
• Should the use of algorithms in data-driven digital advertising be regulated? If so, how?

Accurate information related to voting; harmful content

• Should there be regulation to require all digital and social media platforms to delete inaccurate or misleading content on where, when and ways to vote? If so, what sort of regulation?
• Should further measures be taken by social media platforms to reduce the spread of potentially harmful, inaccurate and/or misleading information in private spaces?

Elections Canada's role

• What are the risks for election administrators such as Elections Canada in using digital and social media platforms to reach electors? What mitigating measures could be adopted to manage these risks?
• How should Elections Canada work with other stakeholders (platforms, regulated actors, civil society groups, researchers) who may be involved in this field?
• What additional role, if any, should Elections Canada play to build trust in elections and democracy? What role should other actors play in this area?

Theme 3: Privacy (20 Questions)

Third parties

• Should registered third parties be subject to privacy requirements as regulated entities under the CEA?

Accountability

• Besides publishing their privacy policies, what other requirements could parties be subject to in order to make them accountable for how they collect, use and disclose personal information?
• When political parties share information with a third party partner, should they continue to be held accountable for the use of that information?

Consent

• Under what circumstances should an elector's consent be implicit or explicit? Should consent be required for the collection and use of publicly available information?
• Would any uses or disclosures of personal information be unacceptable, even with consent? Should such areas be expressly delineated by law?
• Should there be any regulation about how information that Elections Canada provides to parties can be combined with other sources of information?
• Should electors' consent be obtained for providing lists of electors and statements of electors who voted to political parties and candidates?

Identifying purposes

• Should there be mandatory restrictions on what type of information parties collect, including sensitive information such as religion or sexual orientation?
• Should there be restrictions on how long parties can retain personal information? How might that vary depending on the type of information (i.e., political opinions, financial information and address information)?
• To what extent should parties be subject to clarifying the purposes for which personal information is collected, used and disclosed?
• Should the CEA be amended to require that party privacy policies indicate under what circumstances a party may share personal information with a third party, such as provincial political parties?

Accuracy and individual access

• Should Canadians have the right to access their personal information from political parties?
• Are there circumstances when it would be legitimate for political parties to decline access?

Safeguards

• Should the CEA impose mandatory security requirements on parties /candidates who receive the lists of electors?
• Beyond legislating safeguards, what can be done to protect personal information held by political parties? How can parties manage their information holdings to safeguard information, while also enabling campaign workers or volunteers to use that information to communicate with electors?
• Could there be any challenges when applying PIPEDA's breach notification requirements to political parties? Should there be variations for political parties and/or candidates?

Compliance

• What type of privacy compliance model is best suited for political parties? Which body should provide oversight? Should parties be audited? What is the appropriate role for electoral management bodies, data protection authorities or other regulators?
• What should the nature of offences and penalties be, if any?
• Should there be recourses for individuals when their personal information is not treated in accordance with fair information principles?
• Would a code of practice that political parties have agreed to be more appropriate than legislative action? Who should lead the development of such a code?

Annex 2: Respondents to Written Submissions