Quelles sont ces nouvelles exigences d’Élections Canada visant la publicité des tiers ?

With this week’s news that Elections Canada would consider advertising related to climate change as potentially partisan speech requiring registration, many organizations and businesses are left wondering how to interpret the new advertising rules. We take a look today at these new rules and what they mean for you.

The federal election this fall will be the first under the new Elections Modernization Act (Bill C-76), which among other provisions around campaigns, limits third party spending and increases transparency in online advertising. With its coming into force, many questions have arisen regarding its provisions related to online advertising in both the pre-election and election period, what constitutes advertising requiring registration and what rules apply when.

Since the new regulations heavily depend on the content being promoted, and whether that is being done during the campaign period or in advance of it, treating your proposed digital content on a case by case basis is proving to be increasingly prudent. This is even more the case after this week’s opinion from Elections Canada.

Important concepts:

Effective as of June 30th, individuals, corporations and third parties who spend more than $500 on “regulated advertising” during the 2019 federal pre-election and election period must register with Elections Canada. So what does this mean?

There are effectively two key distinctions to make in regard to this legislation and whether or not registration is required:

• Pre-Election vs. Election period

  • Pre-Election refers to the period beginning June 30, 2019 and extending until the formal “writ” or Election period begins (see note below).
  • Election refers to the period from when the election is formally called until Election Day, which is Monday October 21, 2019.
  • Note: The official start of the Election period is subject to the decision of the Governor General on advice from the Prime Minister. Political watchers believe this is highly likely to occur in the week or two before or after Labour Day, but will not be known until close to its formal announcement.

• Issue advertising vs. political/partisan advertising

  • Issue advertising, while not explicitly promoting a political party, is the transmission of a message to the public that takes a position on an issue with which a candidate or registered party is associated. An example of this would be taking a position on the pollution pricing/carbon tax debate, where the Liberals and Conservatives have clearly outlined and divergent positions. This is also where Elections Canada’s opinion this week factors in.
  • Political/partisan advertising is easy to recognize as it is explicitly branded content from a registered political party or candidate supporting their goal of election.

The various combinations of these four concepts are the key determinant in whether registration is required. As most of you reading this do not represent a registered political party or candidate (for whom registration is required at all times) we’ll cover Issue advertising during the Pre-Election and Election period going forward.

Issue advertising in the Pre-Election period:

Discussing issues of importance to Canadians and to your business interests is not prohibited in its own right, whether it is paid for or not, unless the content of what is shared is specifically seen to be explicitly partisan and would be seen to support the success of a political party by name.

Advertising encouraging awareness of an issue area would not trigger the need for registration in the Pre-Election period. That said, once again all content should be considered on a case-by-case basis.

Issue advertising in the Election period:

Determining whether issue advertising should be registered during the Election period requires an assessment of the content and the context.

Content: As noted in the legislation, “The content of the advertisement must be for or against an issue with which at least one candidate or registered party is associated. Such issues could be social, domestic or foreign policy, economics, or national security issues.”

Regarding “content”, this effectively means that the copy of your advertising would require registration if the position of that content aligns with the position held by a registered party or candidate. An example of this would be social media ads supportive of the Liberal Party of Canada’s National Pharmacare Plan.

That being said, other advocacy activities and communications, such as sending emails or text messages, having a website, canvassing door-to-door or giving media interviews, are not considered advertising.

Context: Also noted, “Determining whether a particular message promotes or opposes an issue with which a candidate or registered party is associated is largely based on the facts. An issue advertisement transmitted during the election could at some point become associated with a candidate or registered party. It is, therefore, important to be mindful that any political advertising for or against an issue transmitted during elections may be regulated.”

Regarding “context” the legislation is noting a complex concept, namely that while your content may not be directly associated with a registered party or candidate, it could become associated with one after the fact thereby requiring registration. Or, more simply put, because Maxime Bernier’s People’s Party of Canada may taken positions denying climate change, despite the hard science to the contrary, advertising acknowledging climate change and positions against limiting it may require registration.

Similarly, any content that has a call to action related to voting, mentions a candidate, or appears to specifically endorse a party’s point of view requires registration with Elections Canada.

Social media platforms and their own rules:

Beyond the legislation noted above, social media platforms have enacted their own rules on how they will be treating content. Twitter, Facebook and Google have committed to a gallery feature that will allow people to browse all paid political/partisan content during the official election period. Twitter will also not be accepting election-based ads until the vote is called and before this gallery feature is available. Google, Facebook, and Twitter’s political advertising policies are linked here: Google, Facebook and Twitter. (Ed. Note: Google ultimately decided to prohibit issue advertising and election advertising until the Election period concludes on October 21.)

While all of the above have committed to a ban on certain ads leading up to the election, enforcement will likely vary between Facebook, Twitter, and Google. Also of note, the definition used by the platforms to determine what will be permitted and when is relatively subjective. Generally speaking, all three platforms banned advertisements that speak to a specific candidate or party. Technically these are a subset of “political” advertisements, which discuss government policy and topics that may influence an election but do not ask users to support a candidate or vote a certain way.

As noted above, case-by-case determination is the best method to ensure that the specifics of your content are considered in light of these rules and NATIONAL’s Public Affairs and Digital Advocacy experts are ready to assist.