1. Moving Beyond Advertising – Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections
Electoral communications are regulated under the Act in a variety of ways.
A distinct set of rules exists for communications that constitute "advertising," as defined by the Act. However, political campaigns communicate messages that promote or oppose a party or candidate through various means other than advertisements, such as by phone, text message or email. Because these messages do not constitute advertising under the Act, they are subject to fewer requirements.
Challenges in applying the legislative definition of advertising have been highlighted and intensified by the growth in digital communications technology. Looking at the purpose, history and specific requirements of the relevant provisions in the Act pertaining to advertising, Elections Canada has interpreted online advertising as including only messages that have a placement cost (hereinafter called "paid" advertising).footnote 1 This excludes, for instance, digital content without a placement cost, often referred to as "organic content," even where such content is specifically created by or for a registered political entity (e.g. emails, social media posts).
In addition, messages directed toward individuals—rather than to the general public—through means such as phone calls, texts or online messages are not captured by the current legislative definition of advertising. At every election, Elections Canada and the Commissioner of Canada Elections receive complaints about unsolicited communications transmitted through various communication channels. Removing the distinction between advertising and other forms of communication could help uphold the objectives of fairness and transparency.
As addressed throughout this report, regulations governing all electoral communications, not only advertising, should be crafted in such a way that promotes transparency, fairness in the electoral process and healthy public discourse. Such rules should apply during the election period and, when there is a fixed-date election, during the pre-election period.
1.1. Transparent Communications
Transparency is one of the key values underlying the Act. In order to promote transparency, all electoral communications that meet the definition of advertising are required to have a tagline indicating who authorized the advertisement's transmission. Historically, this requirement has ensured that campaigns could be held accountable for the money spent on an advertisement; however, it has also enhanced campaign transparency by permitting the person receiving the communication to know its source.
For taglines in advertisements by parties and candidates, the Act specifies that they must contain a statement that the ad is authorized by the relevant agent, whereas taglines for third party ads must contain, in addition to an authorization statement, the third party's name, telephone number and Internet or civic address and must be "visible or otherwise accessible."
For communications that do not meet the definition of advertising, the Act does not generally require disclosure of who is communicating. For example, text messages promoting a party may be sent anonymously. Likewise, YouTube videos opposing a party and involving production expenses may be posted without information about who posted the video. The goal of transparency is harmed by the inconsistent treatment of electoral communications that are considered advertising under the Act versus those that are not.
Without a transparency requirement, electors have no way of knowing who is communicating to them. If electors are deprived of the opportunity to make informed choices about who to vote for, their ability to participate meaningfully in the electoral process is limited. Moreover, a lack of transparency makes it difficult for electors to decide whether to trust the content of a message.
While financial reporting obligations provide some transparency about spending on types of communication other than advertisements, such obligations vary depending on the political entity, and spending is generally reported only after the fact.
Fulfilling the objective of transparency does not necessarily mean expanding the existing requirements under the Act. In fact, there is an opportunity to reduce the regulatory burden by removing the requirement for a formal tagline when the message itself clearly conveys who the communicator is and how to obtain more information. In this regard, the Act should focus on the substance of the objective of transparency rather than on the form of the tagline.
The transparency requirement is generally achieved when a registered political entity names itself in an electoral communication. Similarly, a formal tagline adds only marginal transparency to an internal electoral communication sent by a third party organization to its members, employees or shareholders. Further, requiring an individual to include a formal tagline on a handmade sign held up by the individual during a march seems absurd: the communicator is typically obvious, and, in most cases, anyone present can walk over to the individual to ask for more information. Not surprisingly, the requirement for a formal tagline has generally not been enforced in these circumstances, nor should one be required.
As noted above, one of the challenges of the current regime is that transparency requirements do not apply to certain types of communications that fall outside the definition of advertising. In the context of online communications, the distinction between paid and unpaid activities is based on the definition of placement cost; only those communications with a placement cost are considered advertising and therefore captured by the regime. In the context of other communications, political entities may not be subject to regulation if, for example, they use unpaid volunteers instead of paid employees to engage in campaign activities. These distinctions seem arbitrary, and, more importantly, they prevent voters from knowing in all instances when registered political entities are transmitting messages that seek to influence their voting choices during an election period.
Elections Canada believes that transparency is important with respect to all the communications of political entities required to register during an election. All electoral communications—whether or not they are advertising—that are made by or at the specific request of registered political entities should be clear about their origin so that electors can properly evaluate them. In this respect, registered political entities should be subject to a high standard.
Registered political entities in an election include registered parties, nominated candidates and third parties (individuals or groups) that spend more than the mandatory registration threshold, which is currently $500.footnote 2 Elections Canada is of the view that the source of all electoral communications, paid or unpaid, made by these entities should be identifiable to the extent that they are made during an election or pre-election period and promote or oppose a party or a candidate running for election.
For other participants (individuals and groups that spend less than $500 on electoral communications), a requirement to identify themselves only in their paid communications strikes a more appropriate balance. Focusing on only the paid communications of unregistered participants permits individuals and groups to engage freely in the political discourse that is essential to the democratic process. The Act should regulate these participants only when they engage in online activities that have a placement cost or in any other electoral communications that involve an expense. Their unpaid activities should not be captured by the regime.
- To better achieve the objective of transparency while, on the whole, reducing the regulatory burden on regulated entities, the Act should be amended as follows:
- Replace formal tagline requirements by a harmonized requirement applying to all electoral communications—not just advertising—to disclose who is communicating and how electors can obtain more information, if desired. This new requirement should focus on the substance, rather than the form, of the transparency requirement while taking enforcement considerations into account. The information about who is communicating should be clearly visible or otherwise accessible.
- During a pre-election period and an election period, the new harmonized transparency requirement should apply to all electoral communications (regardless of whether they are paid for) made by registered political entities or by political entities that are required to register.
- During a pre-election period and an election period, the new harmonized transparency requirement should also apply to the electoral communications of individuals or entities who are not required to register, but only in cases where their electoral communications are paid. In the context of online communications, "paid" should continue to mean where there is a placement cost.
1.2. Government Advertising
Government advertising in the lead-up to an election may raise questions related to fairness and a level playing field.
Currently, federal government advertising during the election period, and during the pre-election period when there is a fixed‑date election, is restricted by the Treasury Board of Canada Secretariat's Directive on the Management of Communications. The Directive, specifically sections 6.44 and 6.45, states that all advertising and public opinion research activities must be suspended on the day that the Governor-in-Council issues a proclamation for a general election. In a year when there is a fixed-date general election, advertising must be suspended on June 30. Generally, such activities can resume only when the newly elected government is sworn into office. An exception may be made for advertisements approved by the deputy head of a department or agency.
Part of the Directive's objective is to ensure that government communications are non-partisan. It is also meant to ensure that public funds are not used in partisan ways, which could give the governing party an unfair advantage during an election.
Government advertising and communications are not solely a matter of elections, and the Act should therefore regulate only those that could be perceived as giving the governing party an unfair advantage. It is important that there still be scope for the government to communicate with Canadian citizens during election and pre-election periods about unforeseen events or emergencies where immediate action is required. However, enshrining in law the policy restrictions that currently apply to government advertising and public opinion research during an election or pre-election period would give them additional force, ensuring that the government is held to the highest standard and boosting confidence in the fairness of the electoral process.footnote 3
- To preserve the objective of fairness by creating a more level playing field between governing and other parties, amend the Act to legislate existing directives that limit government advertising during the pre-election and election periods and on public opinion research during the election period. This would continue to allow for communications with the public when necessary such as in emergencies.
1.3. Advertising Blackout Periods
The Act prohibits the transmission of certain election advertising on polling day (signs and pamphlets are exempted). While this prohibition is aimed at ensuring that campaigns are given an opportunity to respond to a new advertisement before the close of the polls, much has changed since it was created.
Communications today are much more rapid, published in real time, 24 hours a day and sometimes without a clear indication of their initial publication date.
With more information made available to them, electors are generally able to make informed choices. In Elections Canada's view, the advertising blackout period has largely been rendered meaningless in the digital age.
- To repeal the advertising blackout provisions of the Act to reflect the fact that, with the Internet and social media, mass communications are available to a large number of actors and people can respond rapidly to misinformation.
Return to footnote 1 "Placement cost" refers to either a direct cost to place content (e.g. an advertising rate) or a cost associated with boosting or promoting content that was otherwise posted without cost. See Interpretation Note 2020-05.
Return to footnote 2 See Recommendation 2.2.1, which proposes changing the registration threshold to $1,000.
Return to footnote 3 This idea is consistent with international standards; see Election Observation and Democratic Support (EODS), 2016, Compendium of International Standards for Elections, 4th ed., p. 249, https://www.eods.eu/library/Compendium-EN-N-PDF.pdf.