Canada: Canada's Election Advertising Rules Have Changed — Here's What You Need To Know

Last Updated: July 22 2019
Article by Awanish Sinha, Adam Goldenberg, William Horne, Amanda larusso and Daniel Angelucci

Most Read Contributor in Canada, August 2019

On October 21, 2019, Canadians will go to the polls to elect the 43rd Parliament. The federal election campaign is all but officially underway. However, this year's race will be fought under new rules. Pre-election spending by political parties and "third parties" must now remain within prescribed limits. Participation by non-residents is more restricted than ever. We discuss these changes in a previous blog post.

Parliament has also imposed fresh requirements on those who publish political advertisements online, both before and during the election campaign. New legislation, which came into force last month, seeks to ensure that Canada's federal elections are safe from foreign influence and cyber disruption, so that Canadians know who is paying for the political messages they encounter on the internet. The new rules have potentially significant implications for individuals and entities that communicate with the public about politics before and during election campaigns.

This election law update provides general guidance on what Canada's new election advertising regime could mean for you or your business.

What's new? 

On June 13, 2019, all outstanding provisions of Bill C-76, the Elections Modernization Act1 (the "EMA"), came into force.2 The EMA makes a number of important changes to the Canada Elections Act3 (the "CEA").

The EMA creates a "pre-election period", during which certain restrictions on spending and advertising apply. The pre-election period began on June 30, 2019.

Further restrictions will kick in once the "election period" begins. This will occur when the Governor General dissolves Parliament (i.e., when "the writ drops") at least 36 days and at most 50 days before Election Day.

Elections advertising registry

Online platforms that display certain political advertisements during the pre-election period and the election period are subject to new record-keeping obligations under the EMA. Such platforms — which the CEA defines as "an Internet site or Internet application whose owner or operator, in the course of their commercial activities, sells, directly or indirectly, advertising space on the site or application to persons or groups"4 — may have to create and maintain a publicly accessible "registry" of the "election advertising" and "partisan advertising" that it publishes.5

According to Elections Canada, any website or application that displays a regulated political advertisement is an "online platform" – whether advertising is sold directly or indirectly through advertising aggregators or partners is irrelevant.6 However, the registry requirement only applies to those online platforms that reach a certain threshold of unique monthly visitors:7

Language in which the online platform's content is primarily available

Minimum average unique monthly visitors8 in the 12 preceding months

English

3,000,000 unique monthly visitors

French

1,000,000 unique monthly visitors

A language other than English or French

100,000 unique monthly visitors

As amended by the EMA, the CEA requires that an online platform subject to the registry requirement must keep a copy of each political advertising message published, and must also publish the name of the party or agent that authorized the message's publication.9 The CEA does not prescribe a specified format for the registry. Elections Canada has, however, determined that an online platforms can comply with its registry obligations by linking to a registry hosted on another platform.10

Whether a particular advertisement must be included in the registry depends on the advertisement's content.

  • "Election advertising" includes publicly transmitted messages that promote or oppose a registered party or candidate during the election period – "issue advertising", advertising that takes a position on an issue with which a registered party or candidate is associated, is considered election advertising under the CEA.11
  • "Partisan advertising" includes publicly transmitted messages that promote or oppose a registered party or candidate during the pre-election period – "issue advertising" is not12

Online platforms must include partisan advertising in their registries during the pre-election period if they meet the applicable average monthly visitor threshold for the 12 months before the start of the pre-election period. For example, an online platform the content of which is available mainly in English must maintain a registry of the partisan advertisements it sells during the pre-election period if it had an average of at least 3,000,000 unique visitors per month in the 12 months before the start of the pre-election period.

By the same token, online platforms must include election advertising in their registries during the election period if they meet the applicable average monthly visitor threshold for the 12 months before the start of the election period. For example, an online platform the content of which is available mainly in English must maintain a registry of the election advertisements it sells during the pre-election period if it had an average of at least 3,000,000 unique visitors per month in the 12 months before the start of the pre-election period.

In either case, an online platform must preserve the information contained in its registry for five years after the publication period.13 This means that, practically speaking, the information must remain registered into the next election cycle.

The EMA's broad definition of "online platforms", and the threshold number of average monthly visitors, means that many major social media, news, and entertainment sites will now be regulated during the pre-election and election periods as never before. As the registry is required for platforms that are "visited or used by Internet users in Canada",14 the EMA's provisions have potentially worldwide reach. By these terms, they apply to platforms that are based or operated from outside of Canada. If the platform is accessible from Canada, meets the applicable threshold, and displays regulated advertisements — whether sold by the platform itself, or placed and displayed on the platform by a third party vendor — then the registry requirement will apply.

Intentionally violating the registry requirement could subject the owners and operators of online platform to fines of up to $50,000, while unintentional violations are subject to a fine of up to $2,000 and/or imprisonment of up to three months.15 Online platforms were required to have their registry of partisan advertisements available by the start of the pre-election period on June 30, 2019.16

Expanded investigative powers

The EMA also broadens the powers of the Commissioner of Canada Elections with respect to investigations and enforcement. The Commissioner may now not only conduct investigations of complaints, but may also instigate investigations of potential or alleged violations of the CEA.17

To commence an investigation, the Commissioner must satisfy a judge that there are reasonable grounds to believe that the CEA has been or is about to be contravened.18 The judge may then order individuals to be examined on oath by the Commissioner, or order the delivery of any information that the Commissioner requires.19 The Commissioner may also compel testimony from the individual subject to the order.20

The bottom line

The EMA is intended to equip Canadians with information about who is trying to influence how they vote on Election Day. For businesses that communicate with the public about campaign issues, the new registry requirement will shape where and how those messages are displayed. For those who operate online platforms, compliance — and avoiding enforcement — will require clear procedures and careful monitoring.

Footnotes

1 Elections Modernization Act, S.C. 2018, c. 31.

2 The Elections Canada website contains a timeline of when certain portions of the EMA were brought into force, which can be accessed here.

3 Canada Elections Act, S.C. 2000, c. 9.

4 CEA at s. 319 ("online platform").

5 CEA at s. 325.1(1) to (2).

6 Elections Canada, "New Registry Requirements for Political Ads on Online Platforms" (June 26, 2019) "Elections Canada Guidance" ("Online platform requirements").

7 CEA at s. 325.1(1)(a) to (c).

8 The text of the EMA establishes the threshold for the registry requirement in terms of the average number of times that an online platform "was visited or used by Internet users in Canada" in the 12 previous months. Though this could be interpreted as a minimum number of visits, Elections Canada has interpreted the provision as referring to the average number of unique visitors. Thus, repeat visits by a single user will not count towards the threshold. See Elections Canada Guidance, supra note 6.

9 CEA at s. 325.1(3).

10 Guidance Document at List Item 12.

11 CEA at s. 2(1) ("election advertising").

12 CEA at s. 2(1) ("partisan advertising").

13 CEA at s. 325.1(5).

14 CEA at s. 325.1(1).

15 CEA at s. 495(1), 495(4), 500(1), 500(4).

16 CEA at s. 325.1(4).

17 CEA at s. 510.01(1).

18 CEA at s. 510.01(1).

19 CEA at s. 510.01(1).

20 CEA at s. 510.02(1).

To view the original article click here

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions