Elections Advertising—What You Need to Know About the Third-Party Advertising Rules

[co-author: Jade Scrymgeour - Articling Student]

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.