This article is part of a series extensively covering the 2022 Ontario general election. It provides voters and business leaders a 360 degree view of all the rules and regulations affecting the campaign and voting, as well as insights into news and other developments this election season. It is intended as general guidance only.
To view the rest of our coverage, please visit Ontario Election 2022.
Come election season, political parties and candidates turn to a variety of mediums, including newspaper, television, and online platforms (or "sites"), to reach voters and donors. With the next provincial election taking place on June 2nd, 2022, entities that publish or broadcast political advertising - regardless of the medium - should take the time to understand the rules around political advertising.
Political advertising
Type of content
"Political advertising" is advertising by any means with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate.1 Political advertising also includes advertising relating to public policy issues for which one or more registered candidates or political parties have taken a position.2 The Chief Electoral Officer shall consider the following in determining whether an advertisement is a political advertisement:
- Whether it is reasonable to conclude that the advertising was specifically planned to coincide with the election period;
- Whether the formatting or branding of the advertisement is similar to that of a registered party or candidate;
- Whether the advertising makes reference to the election or voting day;
- Whether the advertisement makes reference to a registered political party or registered candidate directly or indirectly;
- Whether there is a material increase in the normal volume of advertising conducted by the person, organization, or entity;
- Whether the advertising has historically occurred during the relevant time of the year;
- Whether the advertising is consistent with previous advertising conducted by the person, organization, or entity;
- Whether the advertising is within the normal parameters of promotion of a specific program or activity; and
- Whether the content of the advertisement is similar to the political advertising of a party, constituency association, nomination contestant, candidate, or leadership contestant registered under the Election Finances Act.3
Certain types of communications are not included in the definition of political advertising including:
- The transmission of an editorial, debate, speech, interview, column, letter, commentary, or news to the public;
- The transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views;
- The making of telephone calls to electors only to encourage them to vote;
- Communication in any form directly by a person, group, corporation or trade union to their members, employees or shareholders; and
- Government advertising by the Government of Canada, Government of Ontario, or the government of any province, territory, or municipality of Canada.4
Responsibilities of broadcasters and publishers
Although not explicitly defined by legislation, "broadcasters and publishers" has generally been interpreted to be a broad, inclusive term that captures any entity that broadcasts or publishes (or hosts or transmits) political advertising as defined above - whether in print, electronic, or some other medium.
Rates charged
Broadcasters and publishers cannot charge increased rates for political advertising during election time. Nor can the media give special low rates either.5
Should a broadcaster or publisher charge a lower rate for space or time than it would normally charge during the same period, the difference between the normal rate and what is charged must be considered a contribution.6 The rules regarding eligible contributors and contribution limits apply in this case.7
Authorization on political advertising
All political advertising must name the person or entity that is authorizing the advertising.8
Blackout period
The "blackout period" refers to the polling day and the day before the polling day in an election.9 During the blackout period, broadcasters and publishers cannot allow a political advertisement to be published.10 The following exceptions are permitted during the blackout period:
- Genuine news reporting;
- The publication of political advertising during the blackout period in a newspaper that is published weekly (or less often), and whose regular day of publication falls on either day of the blackout period;
- Political advertisements on the Internet or a similar electronic medium, if posted before and not altered during the blackout period; and
- Political advertisements in the form of posters or billboards, if posted before and not altered during the blackout period.11
Lawn signs and brochures that are distributed are not considered as paid commercial political advertising; they may be used at any time and are not subject to the blackout period.12
Maintaining records
Broadcasters and publishers of political advertising must keep records of advertisements displayed on their platforms for two years after the advertisement appeared.13 These records must include:
- The name of the person, registered party, or registered constituency association advertising, in addition to the name, business address and telephone number of the individual dealing with the broadcaster or publisher on behalf of the person or entity;
- Any other person, registered party, or registered constituency association who is sponsoring or paying for the political advertisement;
- A copy of the political advertisement; and
- A statement of the charge made for the advertisement.14
Broadcasters and publishers that fail to adhere to these rules are liable for fines of up to $10,000 for individuals and $100,000 for corporations or other entities.15
Obligations of parties, candidates, and organizations purchasing election ads
Political parties, candidates, and third parties are required to provide platforms with all the information needed for those platforms to maintain their records. For example, a political party purchasing ad space on ABC Online Platform must provide the Platform with an electronic copy of the ad and the name of the person who authorized its publication.16
More information regarding the rules on third-party advertising can be found at our blog post here.
The bottom line
Online platforms ranging from social media websites to online news outlets provide a forum for parties, candidates, and third parties to engage an increasingly digital electorate. These organizations should take the time to understand their obligations under the new registration and publication requirements.
This article is part of our 2022 Ontario provincial election series. You can access related content here.
Footnotes
1 ; Election Finances Act, RSO 1990, c E7 at s. 1(1) ("political advertising").
2 ;Elections Ontario, Handbook for Broadcasters and Publishers of Political Advertising (January 2022) at p. 7.
3 ; Election Finances Act, supra at s. 37.0.1.
4 ; Election Finances Act, supra at s. 1(1) ("political advertising").
5 ;Handbook for Broadcasters and Publishers of Political Advertising at p. 9.
6 ;Handbook for Broadcasters and Publishers of Political Advertising at p. 9.
7 ;Handbook for Broadcasters and Publishers of Political Advertising at p. 9.
8 ;Handbook for Broadcasters and Publishers of Political Advertising at p. 9.
9 ; Election Finances Act, supra at s. 37(1).
10 Election Finances Act, supra at s. 37(3).
11 Election Finances Act, supra at s. 37(4).
12 Handbook for Broadcasters and Publishers of Political Advertising at p. 10.
13 Election Finances Act, supra at s. 22(7).
14 Election Finances Act, supra at ss. 22(5), 22(8).
15 Election Finances Act, supra at s. 45.1(5).
16 Election Finances Act, supra at s. 22(5).
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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.
