5. Regulating Channels of Electoral Communication – Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections
Many of the Act's provisions relating to campaign communication channels were drafted before the advent of digital communications. The opportunity presented by new communications media comes with questions about whether and how to regulate their use during (and outside) elections to uphold the values of transparency, a level playing field and free and fair participation in the electoral process.
5.1. Online Platforms
By far the most transformative communication channels have been online platforms, including social media and other digital platforms that enable users to create, share, discover and interact with content online. Having become a central component of our electoral environment, these platforms can be valuable tools for reaching Canadians efficiently and inexpensively, and they are credited with spurring people on to participate in elections in many ways, whether by updating their voter registration, donating to a political party or cause or accessing information about political options or about when, where and the ways to vote.
In the wake of digital interference in elections around the world and the spread of inaccurate and harmful content, governments—alongside academics, civil society and online platform companies—have begun taking a closer look at the impact of online platforms.
These platforms hold immense power in today's information environment. American and European legislators have noted that this power has become concentrated to the point that a small number of commercial companies have a near monopoly on the market. Similar concerns have been raised by experts in Canada.footnote 1 A few powerful private companies employ algorithms that impact the information we consume, meaning that some political messages may make their way to users' screens, while others do not.
Major online platforms decide how, when and at what price to sell digital advertisements. And although the cost to enter the digital landscape is relatively low, the use of dynamic pricing strategies makes the cost and effectiveness of a digital advertising campaign difficult to predict. This unpredictability may present a risk to the level playing field if political entities are treated unequally by online platforms that act as gatekeepers to electors' attention.
Though some platforms have advertising and content-moderation policies in place, experts have noted that these policies are not necessarily applied consistently or transparently. For example, the US-based Brennan Center for Justice reports that content created by marginalized populations is moderated more heavily or removed at disproportionate rates and has called for more transparency into content-moderation practices.footnote 2
In Canada, several online platforms signed on to the Canada Declaration on Electoral Integrity Online before the 2019 federal election. The signatories committed to acting with integrity, transparency and authenticity, and consistently, with Canadian laws and other legal obligations in the lead-up to, and during, the election. There are also voluntary measures being taken to identify and remove malign actors, manage inappropriate content and collaborate with agencies and authorities to uphold trust in the electoral process and in democratic institutions more generally. However, more transparency, especially during elections, would be welcome.
In particular, there is a lack of transparency—and thus not much predictability for election administrators or regulated entities—about the approach used by online platforms to manage election-related content, including advertising. A legislative requirement for transparency would allow online platforms to be held accountable for their practices. This accountability is crucial to upholding the values of our electoral democracy because the decisions made by online platforms impact both political entities' participation in the electoral process and the information electors receive. More transparency could help increase trust in digital campaigning as well as improve enforcement and electoral security.
- To provide greater transparency concerning the use of online platforms in elections, require such platforms (as defined in accordance with Recommendation 5.1.2 below) to publish their policies on the administration of paid electoral communications and on user accounts during the pre-election and election periods.
- To strengthen the accountability of online platforms during elections, require them to publish policies indicating how they will address content (paid or unpaid) that misleads electors about where, when and the ways to vote or that inaccurately depicts election-related procedures during the election period (e.g. by moderating, downgrading or removing content).
Online platforms are currently defined in the Act as Internet sites or applications that sell advertising space, either directly or indirectly. Online platforms that meet a threshold of minimum monthly users—3 million, 1 million, or 100,000 unique monthly visitors in Canada for platforms in English, French or another language, respectively—are required to maintain a digital advertising registry, described in more detail below.
All online platforms, irrespective of whether they sell advertising space for electoral communications, or their number of monthly users, make decisions about whether the content on their platforms is acceptable and whether it aligns with the terms and conditions of their services. Accordingly, Parliament should revisit the current definition of "online platform" in the Act to ensure that the transparency requirements described above apply to all platforms.
- To ensure that the important goals of the law are met regardless of the size of the online platform hosting election‑related content, amend the definition of "online platform" to extend beyond only those that sell advertising space and eliminate the minimum monthly threshold requirement for digital advertising registries.
5.2. Digital Advertising Registry
The Elections Modernization Act introduced a requirement for online platforms that meet a certain threshold of monthly users to maintain and publish a digital advertising registry. Registries must contain a copy of all ads purchased by political entities and the name of the person who authorized the publication.
Digital ad registries bring transparency, but the experience of the 2019 and 2021 general elections suggests that their impact is mixed. Some major platforms opted out of the election advertising market altogether, citing technical and timing challenges associated with implementing an ad registry. Therefore, political entities could only communicate to electors through advertisements on the platforms that chose to adopt the ad registry requirements.
As well, the formats of the digital ad registries that platforms did implement varied considerably. Notably, there was no standardized way to search ads within, or compare them across, registries. Registries are not required to include how much an ad costs or who is being targeted. Without the ability to easily search for basic information across platforms, transparency is not as complete as it could be.
In addition, the user thresholds for online platforms do not capture smaller platforms, to which malign actors may turn to communicate inaccurate information or where targeted messages may be left unscrutinized.
These limitations prevent electors from forming an overall picture of the digital advertising landscape. Because electors do not have access to all a political entity's advertisements, they cannot be fully informed about how it is attempting to influence their vote. Furthermore, there is no incentive for political entities to provide consistent messaging; rather, they can target different messages to different population groups without being held to account.
Many consultation respondents in 2020 welcomed the idea of a centralized registry that could increase searchability and transparency; some suggested that Elections Canada host such a repository. Several noted that unique identifiers could increase transparency for electors and would also help researchers better understand who is purchasing digital ads and to what extent.
The technical challenges of creating one unified registry for electoral communications would be significant. Instead, existing registries could present their data in a searchable and shareable fashion, as recommended below. In addition, political entities could increase transparency by making all their paid digital communications available on their websites. Rather than having political entities establish their own registries, which may be challenging for smaller political parties, requiring them to provide a link to the registries that host the electoral communications they purchased would strike the right balance.
The latter requirement would provide an added layer of transparency so that the general public can easily get a full picture of a political entity's paid digital communications.
As a matter of election administration, Elections Canada plans to assign each registered political entity a unique identifier that could be used when purchasing digital electoral communications. This change does not require a legislative amendment.
- To enhance transparency concerning digital advertising in elections, amend the Act to:
- Require political entities to disclose in a timely manner comprehensive information about their paid digital electoral communications—for example, by requiring their websites to link to the registries of the online platforms that host their paid digital communications.
- Require that the platform's paid digital communications registries include searchability (e.g. by purchaser or date) and exportability of data.
5.3. Voice Calls and Text Messages
The Voter Contact Registry was created in 2014 in response to automated voice calls (or robocalls) that misdirected electors about where to vote during the 2011 general election. Maintained by the Canadian Radio-television and Telecommunications Commission (CRTC), the Registry is meant to protect electors from rogue or misleading calls during federal elections and ensure that those who do contact voters do so transparently. Entities making or authorizing calls to voters during an election must file a registration notice within 48 hours of making the first call, and notices are made publicly available on the CRTC's website.
Phone calls are still widely used to communicate with electors. In the 2019 general election, registration notices with the Voter Contact Registry were filed by 718 persons and groups using calling-service providers, 659 calling-service providers and 51 persons and groups using internal services to make voter-contact calls. In the 2021 general election, 681 persons and groups using calling-service providers, 619 calling-service providers and 27 persons and groups using internal services to make voter-contact calls filed notices.
Text messages, however, are not currently captured in the Registry. The use of text messages to communicate with electors, particularly by third parties, has been increasing in recent years.
Both Elections Canada and the CRTC believe that the voter-contact-calling regime should be extended to apply to electoral communications through text messages because texting is based on the same principles and technology as phone calls, and it can be used in the same way to mislead thousands of voters at a very low cost.
- To enhance transparency and apply the same rules to text messages as to telephone calls, amend the Act to add text messages to the voter-contact-calling regime administered by the CRTC.
The broadcasting provisions of the Act seek to ensure fairness and equity in the provision of broadcasting time during the election period. Since broadcasting is one of the most expensive channels of electoral communication, the Act requires all broadcasters to make 6.5 hours of prime-time broadcasting time available for purchase by registered and eligible parties during the election period. All networks are required to provide free broadcasting time (not in prime time) to registered and eligible parties.
The allocation of time is presided over by the Broadcasting Arbitrator, who is also responsible for setting guidelines and arbitrating disputes between parties and broadcasters over the application of the rules in particular cases.
In addition to ensuring an adequate supply of broadcasting time, the Act contains a provision to ensure that broadcasting and periodical advertisements are made available at the lowest rate charged for an equivalent amount of broadcasting time or advertising space.
There are numerous problems with the current broadcasting provisions. These issues have been identified in previous reports, including the CEO's 2016 recommendations report (on which the CRTC, CBC/Radio-Canada and the Canadian Association of Broadcasters were consulted). Generally, the provisions are overly complex and prescriptive when considering the decreasing substantive benefits they deliver. In addition, the reliance on "broadcasters" and "networks," as defined in law, to distribute time has weakened the provisions because broadcasters and networks take up an ever-smaller portion of the television landscape. While the current provisions present problems, the goals being pursued remain valid.
Television broadcasting may be less relevant now than it was before the digital age, but it remains an important communication channel for political entities. For example, political parties represented in the House of Commons before the 2019 general election spent a majority of their election advertising dollars on television ads (47.4 percent), followed by online ads (28.3 percent), other ads (13.3 percent), radio ads (9.6 percent) and print media (1.4 percent). At the time this report was tabled, parallel data was not yet available for the 2021 general election.
Respondents to an evaluation of the 2019 federal leaders' debates indicated that television was the most popular means of watching the debates. Eighty-five percent of English and 93 percent of French respondents reported watching the debates on television.footnote 3 According to an Elections Canada survey conducted after the 2021 general election, among electors who recalled seeing or hearing information from Elections Canada's Voter Information Campaign, 56 percent recalled seeing or hearing it on TV, 48 percent saw it in a brochure, 41 percent saw it on social media and 40 percent heard it on radio.
Given the continued relevance of traditional communication channels, the broadcasting regime, which is designed to provide equitable access to information about registered parties, should be modernized rather than eliminated from the Act.
Respondents to the 2020 consultation were in favour of maintaining the position of the Broadcasting Arbitrator, and several indicated that the mandate could be expanded to include social media. Respondents were in favour of limiting the influence of money and providing equal access to broadcasting time, and most were in favour of maintaining the provisions for access to both free and paid broadcasting time. Several welcomed expanding the paid broadcasting provisions beyond traditional broadcasting to newer forms of media.
While there have been reports about unfair pricing for social media ads, the costs are relatively low compared with those for television ads, and there is no material scarcity of ad-placement opportunities. Consequently, unlike accessing traditional broadcasting media, there is not a high barrier to entry for using social media to communicate a political party's viewpoints. This means that it may not be necessary to import the equitable and fair pricing requirements from the broadcasting scheme into social media, and it is likely premature to consider expanding the role of the Broadcasting Arbitrator to cover this sphere. That said, given the emerging dominance of social media as a communication medium, Parliament may wish to consider adapting the Broadcasting Arbitrator's role to online platforms in the future.
The current Broadcasting Arbitrator, first appointed in 2020, has been consulted and agrees with the recommendations below (which repeat those made in previous reports).
To improve the broadcasting provisions in the law, amend them as follows:
- Separate the paid- and free-time allocation processes.
- Modify the allocation regime for paid time by giving each party the same entitlement to 100 minutes of paid time, with a cap of 300 minutes on the total amount of broadcasting time that any broadcaster must sell to political parties.
- Require that paid time be provided at the "lowest unit charge," and clearly define this term to mean the lowest rate charged to non-political advertisers that receive volume discounts for advertising purchased months in advance.
- Amend the provisions determining to whom the obligation to provide free broadcasting time applies. Instead of applying only to "network operators," these obligations should apply, through conditions of licence under the Broadcasting Act, to all broadcasters that focus on news or public affairs (e.g. conventional television stations, news or talk radio stations and speciality television stations that focus on news or public affairs). Each of these broadcasters should be required to provide a total of 60 minutes of free time, allocated equally among the parties.
Return to footnote 1 Makena Kelly, "House Lawmakers Introduce Five Bipartisan Bills to Unwind Tech Monopolies," The Verge, June 11, 2021. Retrieved from https://www.theverge.com/2021/6/11/22529857/democrats-antitrust-big-tech-facebook-amazon-google-apple-competition-package-bills. Billy Perrigo, "How the E.U.'s Sweeping New Regulations Against Big Tech Could Have an Impact Beyond Europe," Time, December 30, 2020. Retrieved from https://time.com/5921760/europe-digital-services-act-big-tech. Vass Bednar and Robin Shaban, "The State of Competition Policy in Canada: Towards an Agenda for Reform in a Digital Era," Centre for Media, Technology and Democracy, April 21, 2021. Retrieved from https://www.mediatechdemocracy.com/work/the-state-of-competition-policy-in-canada.
Return to footnote 2 Ángel Díaz and Laura Hecht-Felella, "Double Standards in Social Media Content Moderation," Brennan Centre for Justice at New York University Law School, August 4, 2021, p. 3. Retrieved from https://www.brennancenter.org/sites/default/files/2021-08/Double_Standards_Content_Moderation.pdf. Laura Hecht-Felella, "A Call for Legislated Transparency of Facebook's Content Moderation," Brennan Centre for Justice at New York University Law School, September 28, 2021. Retrieved from https://www.brennancenter.org/our-work/analysis-opinion/call-legislated-transparency-facebooks-content-moderation.
Return to footnote 3 John R. McAndrews, et al., "Evaluation of the 2019 Federal Leaders' Debates," Leaders' Debates Commission, 2019. Retrieved from https://www.debates-debats.ca/en/report/evaluation-2019-federal-leaders-debates/.