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. If you have specific questions or concerns, please contact Awi Sinha, Adam Goldenberg, Will Horne, or Amanda Iarusso. We would be pleased to assist you.

What’s new?

On June 13, 2019, all outstanding provisions of Bill C-76, the Elections Modernization Act[1] (the “EMA”), came into force.[2] The EMA makes a number of important changes to the Canada Elections Act[3] (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 visitors[8] 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 not[12]

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.