Canada: Elections Advertising—What You Need To Know About The Third-Party Advertising Rules

Last Updated: September 20 2019
Article by Sharon Singh and David E. Gruber

On Monday, October 21, 2019, Canadians will head to the polls to vote in the 43rd federal election. This will be the first election under the new provisions of the Canada Elections Act (the "Act"). Introduced through the Elections Modernization Act, the amendments to the Act aim to establish measures to increase transparency about the participation of third parties in the electoral process. A third party is a person or a group other than a registered party, registered association, candidate or nomination contestant. Measures include registration requirements for third parties who wish to engage in what is called "issue advertising" that is, advertisements taking a position on an issue associated with a candidate or party.

What is Issue Advertising? 

The Act defines election advertising as the transmitting of messages to the public during an election period that takes a position on an issue with which a candidate or registered party is associated without identifying the candidate or party in any way. There are three criteria of issue advertising:

  1. timing: election advertising must be during the election period from September 11, 2019, until October 21, 2019; 
  2. content: the advertisement must be for or against an issue with which at least one candidate or registered party is associated with; and 
  3. context: Elections Canada uses a factual and context-driven approach when determining whether a message promotes or opposes an issue. If the topic is an issue that a candidate or registered party could at some point become associated with then this content is potentially covered by the Act.

Requirements Under the Act

When a third party spends more than $500 on issue advertising, the Act requires the third party to:

  1. register under the Act and be part of the Third-Party Database;
  2. adhere to the Act's mandated spending limits. During the election period the total amount a third party may spend on issue advertising is $511,700, with a cap of $4,386 per electoral district;
  3. identify itself in any election advertisement that it has authorized; and
  4. within four months after election day, submit a final financial report to Elections Canada.

Advertising includes social media and other online advertising. Elections Canada has stated that messages sent or posted for free are not elections advertising. However, the $500 threshold does apply to messages that have, or normally would have, placement costs such as sponsored or boosted content. 

Uncertainty 

In the context of advertisements promoting climate change as real or an emergency, Elections Canada recently issued the following clarification.

"The Act does not prevent individuals or groups from talking about issues or publishing information (...). However, if they spend $500 or more on certain activities, they will need to register with Elections Canada as third parties and be subject to a spending limit of $511,700 during the election period. The only instance in which the Act covers the promotion of an issue, without mentioning a candidate or party, is when someone spends money on issue advertising during the election period. Also, in such cases, the issue must be clearly associated with a candidate or party. When someone spends money on issue advertising, they have to register with Elections Canada and provide reports. This leads to increased transparency."

Given the broad scope of the definition of issue advertising, a considerable number of issues can be associated with a particular party or candidate. Even if an issue is not an issue within the context of the Act at the start of the election period, given the dynamic nature of elections, an issue can become associated with a party or candidate very quickly. 

Contravention 

The Act establishes strict penalties for circumvention or contravention of the mandatory spending limits, registration, reporting and identification requirements. Punishments can range from monetary penalties to imprisonment. Third parties who exceed election period expenses may be liable to a fine of up to five times the amount by which the third party exceeded the election period expenses limit. The court may impose additional penalties where appropriate. 

While the Act allows for Elections Canada to initiate investigations, it seems likely given the breadth of materials that could qualify as election advertising, that a complaints-based approach will be adopted to investigations. 

Takeaway

While recent statements by Elections Canada are helpful, there remains much uncertainty around the application of the issue advertising rules.

Individuals and organizations should assess their current advertising to determine if the advertising complies with the Act, and calculate what, if any, funds have been spent to date on elections advertising. 

Co-authored by Jade Scrymgeour, Articling Student

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