Should social media users be prevented from communicating
election results from Atlantic Canada to users in Western Canada,
where polls are still open? That question is at the heart of both a
pending court challenge and a growing user revolt.
Section 329 of the Canada Elections Act provides that no
person shall transmit the result or purported result of the vote in
an electoral district to the public in another electoral district
before the close of all of the polling stations in that other
electoral district. Violators of the prohibition can face fines of
up to $25,000.
The provision is intended to ensure that all voters have access
to the same information, at the same time, regardless of the time
zone in which they live – sometimes referred to as
"informational equality." The idea is to try to prevent
voting results in the East from influencing voting in the West,
such as giving rise to strategic voting or voter apathy.
This "premature transmission" provision, which
originated in the 1930's, was originally aimed at broadcast
media, but has been held to apply equally to some Internet-based
communications. In 2007, in R. v. Bryan, the Supreme Court of
Canada upheld the application of the provision to a web page that
posted Atlantic Canada election results before polls had closed in
Western Canada, finding that although the prohibition did infringe
the freedom of expression guaranteed by section 2(b) the Charter of Rights and Freedoms, it was saved by
section 1 of the Charter as being a reasonable limit on that
Most recently, Elections Canada has advised users of social networking
platforms and applications to refrain from disclosing electoral
results from one electoral district in another district whose
polling stations are still open. This apparent extension of the
section 329 prohibition to social media is being challenged on two
First, the Elections Canada announcement has resulted in a kind
of cyber rebellion from the social networking
community, with a number of users promising to break the law on
election night in protest of what is perceived as an unwarranted
restriction on free expression.
At the same time, the CBC and Bell Media have challenged the
constitutional validity of section 329 by way of application to the
Ontario Superior Court of Justice. While their request for a
hearing of that application prior to the May 2 federal election was denied, the eventual decision will have
important implications for future elections.
One of the significant issues raised by that court challenge is
the question of what constitutes a transmission to the public of
election results; and more precisely, where the line is to be drawn
between "broadcasting" of electoral results and
communication by an individual to a finite group of associates
– or where the line is drawn between publication and
Elections Canada has reportedly said that it
considers the posting of results on a "private" Facebook
page, visible only to "friends" as allowable, but posting
on a user's wall could be considered to be a public
transmission and a violation of the Act – but what if a
user has hundreds, or even hundreds of thousands, of friends? Is
the answer the same for Twitter, with its capability for rapid
dissemination of messages through "retweeting"? Is there
a material distinction between dissemination of premature election
results by a mainstream broadcaster, on the one hand, and by a
heavy Twitter user, such as Justin Bieber (9.1 Million
"followers" and counting), on the other?
At least as interesting a question is whether, as part of its
section 1 analysis, the court will give any weight to the role of
social media as an interactive, multilateral forum for political
discourse – which goes to the heart of the constitutional
guarantee of free expression.
Lastly, Election Canada's recent warning to social media
users inevitably raises the question of the realistic
enforceability of such a prohibition in the vast, pseudonymous
social network universe. In a supporting affidavit filed in the pending
Ontario case, Prof. Michael Geist notes the technical difficulties
associated with suppressing or censoring social media use, citing
recent social media protest movements in countries like Egypt and
While the Supreme Court has observed in the past that perfect
enforcement is not a requirement of a law's validity, virtual
unenforceability is another matter altogether.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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