New Elections Canada Interpretation Note Marks Seismic Shift in Regulation of Election Advertising on the Internet

Elections Canada has made a change in its interpretation of election advertising on the internet that will have a massive impact on how political advertising is conducted by third parties, especially during elections.

This new interpretation is contained in an interpretation note that was published yesterday, and is available on the Elections Canada website here:

The interpretation is also included in the newest version of the Election advertising handbook for Third Parties, Financial Agents and Auditors, which is available here:

Previously, videos and other content that were posted on the internet without a placement cost could be considered as election advertising. Content posted on youtube, on third parties’ own websites, even tweets and facebook pages were considered to be election advertising. The costs of producing a video or other content (as well as any placement costs) were considered an election advertising expense, limiting the content that third parties could put online. For example if a third party incurred more than $150,000 in production costs to make a video for its website and youtube, the third party may have been required to take it down during the campaign period as it could put the third party over the election advertising expense limit.

Now, Elections Canada will consider that election messages communicated over the Internet are election advertising only if they have, or would normally have, a placement cost and meet the statutory criteria of promoting or opposing a registered party or candidate.

This means that videos and other content that a third party puts on its own website or shares through social media for free (no placement cost) will not be considered election advertising.

One example of the kind of impact this will have is the “Engage Canada” and “Working Canadians” campaigns that made headlines earlier this summer for not being subject to transparency and expense limits. These groups had indicated that they would be taking their websites and youtube videos down once the campaign started, so that they would not incur any election advertising expenses which would require them to disclose who is funding their organizations. However, following Elections Canada’s new interpretation of election advertising on the internet, they can keep their websites and youtube videos up. As long as they don’t pay a placement cost to promote their websites and videos, they will not be incurring any election advertising expenses.

Third parties who are running online political advertising campaigns during the campaign period, whether there is a placement cost or not, are well advised to seek legal advice on whether the campaigns will be considered election advertising or not. This is especially the case for third parties who are receiving contributions from other third parties.

This is a very complex area of the law regarding election communications and the impacts of this change won’t be fully understood until well after the fall election.

What is clear is that it just became much easier to conduct political advertising on the internet during an election campaign. On the other hand, the laws that prohibit colluding to circumvent the third party election advertising limit, and the question of just what is a placement cost, just became a lot murkier and riskier for third parties who may look for ways to maximize the impact on their online campaigns while trying to avoid incurring any election advertising expenses.

One prediction: look for a lot more viral partisan videos, where the strategy for getting the message out is not to pay for placement, but to have followers share it for free.

What impact do you think this new interpretation will have on how third parties use the internet to conduct political campaigns?

Will this new interpretation affect how a third party you are involved with conducts any online political messaging this election?

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