Federal electoral law is imposing significant and important changes on the digital advertising landscape. On June 13, 2019, Bill C-76 An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments (Bill C-76) will bring into force changes to the Canada Elections Act (Act) relating to paid political advertisements through online platforms. Amendments to the Act will require online platforms to publish digital registries of paid political advertisements, starting June 30, 2019, through to the conclusion of the October 21, 2019 Canadian federal general election.
APPLICATION OF NEW REGISTRY REQUIREMENTS
The new registry requirements in Bill C-76 apply to any “online platform”, which is broadly defined to include an Internet site or application whose owner or operator, in the course of their commercial activities, directly or indirectly sells advertising space on the site or application to persons or groups.
The registry requirement applies to traditional advertising, as well as to paid content, content boosting, sponsorship and less traditional advertising arrangements. The registry requirement only applies to platforms that exceed designated thresholds as to the monthly average number of unique Canadian visitors to the platform in the previous one-year period: 3-million for English platforms, 1-million for French platforms and 100,000 for platforms in other languages.
Categories of advertising that are restricted include “partisan” advertising (advertising that expressly promotes or opposes the election of a party, leader or candidate, or is paid for by a party, campaign, riding association or candidate) and also, during the election period (i.e., the writ period or 37 days prior to the election, if earlier) “issue” advertising, (advertising that takes a position on an issue with which a candidate or registered party is associated, even without identifying the candidate or party in any way).
Importantly, the obligations apply whether ads are sold directly or indirectly, such as through a partner site, partner app, conduit or aggregator. It is the responsibility of any platform to maintain or link to a registry when regulated digital ads are displayed on their site or application.
There are certain exceptions for emails, text messages, private messages, news articles and editorials, and user-generated content, but these exceptions are not absolute. Online platforms that sell regulated advertising to regulated political entities should carefully consider their obligations to create and publish a digital ad registry.
NATURE OF THE REGISTRY REQUIREMENTS
The registry requirements take effect June 30, and an ad must be listed in the registry as soon as it is made available online. The digital ad registry will have to be maintained for two years after the election. Following this two-year period, platforms must keep the registry information related to that advertisement for an additional five years. The registry must include the name of who placed the ad and a copy of the ad and may include additional information.
While the Act places heavy obligations on online platforms in connection to the registry, regulated political entities are not exempt from legal responsibility. Regulated political entities that request the publication of regulated advertising on an online platform must provide the owner of the online platform with all necessary information to ensure the online platform complies with the registry requirements.
Online platforms that do not engage or plan to engage in political advertising altogether will still be subject to the Act. The new political advertising laws will require online platforms to monitor their sites and ensure compliance with the Act such that no regulated advertising appears on their platforms. Failure to abide by these rules may result in political advertisements not appearing in the digital ad registries as required. Elections Canada has warned that such a contravention of the Act could lead to investigations and potential prosecution.
Online platforms should be wary that non-compliance with the Act will result in fines and charges, depending on the circumstances. Punishment for non-compliance ranges from administrative fines up to and including jail time. Offences relating to registry obligations also exist for regulated political entities (including third parties) who fail to provide the required information to maintain a registry.
Digital businesses and third parties who engage in paid political advertisements online should carefully review their advertising operations and consult counsel to ensure compliance with the Act.