Should social media users be prevented from communicating election results from Atlantic Canada to users in Western Canada, where polls are still open? That question is at the heart of both a pending court challenge and a growing user revolt.
Section 329 of the Canada Elections Act provides that no person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district. Violators of the prohibition can face fines of up to $25,000.
The provision is intended to ensure that all voters have access to the same information, at the same time, regardless of the time zone in which they live - sometimes referred to as "informational equality." The idea is to try to prevent voting results in the East from influencing voting in the West, such as giving rise to strategic voting or voter apathy.
This "premature transmission" provision, which originated in the 1930's, was originally aimed at broadcast media, but has been held to apply equally to some Internet-based communications. In 2007, in R. v. Bryan, the Supreme Court of Canada upheld the application of the provision to a web page that posted Atlantic Canada election results before polls had closed in Western Canada, finding that although the prohibition did infringe the freedom of expression guaranteed by section 2(b) the Charter of Rights and Freedoms, it was saved by section 1 of the Charter as being a reasonable limit on that freedom.
Most recently, Elections Canada has advised users of social networking platforms and applications to refrain from disclosing electoral results from one electoral district in another district whose polling stations are still open. This apparent extension of the section 329 prohibition to social media is being challenged on two fronts.
First, the Elections Canada announcement has resulted in a kind of cyber rebellion from the social networking community, with a number of users promising to break the law on election night in protest of what is perceived as an unwarranted restriction on free expression.
At the same time, the CBC and Bell Media have challenged the constitutional validity of section 329 by way of application to the Ontario Superior Court of Justice. While their request for a hearing of that application prior to the May 2 federal election was denied, the eventual decision will have important implications for future elections.
One of the significant issues raised by that court challenge is the question of what constitutes a transmission to the public of election results; and more precisely, where the line is to be drawn between "broadcasting" of electoral results and communication by an individual to a finite group of associates - or where the line is drawn between publication and multilateral discussion.
Elections Canada has reportedly said that it considers the posting of results on a "private" Facebook page, visible only to "friends" as allowable, but posting on a user's wall could be considered to be a public transmission and a violation of the Act - but what if a user has hundreds, or even hundreds of thousands, of friends? Is the answer the same for Twitter, with its capability for rapid dissemination of messages through "retweeting"? Is there a material distinction between dissemination of premature election results by a mainstream broadcaster, on the one hand, and by a heavy Twitter user, such as Justin Bieber (9.1 Million "followers" and counting), on the other?
At least as interesting a question is whether, as part of its section 1 analysis, the court will give any weight to the role of social media as an interactive, multilateral forum for political discourse - which goes to the heart of the constitutional guarantee of free expression.
Lastly, Election Canada's recent warning to social media users inevitably raises the question of the realistic enforceability of such a prohibition in the vast, pseudonymous social network universe. In a supporting affidavit filed in the pending Ontario case, Prof. Michael Geist notes the technical difficulties associated with suppressing or censoring social media use, citing recent social media protest movements in countries like Egypt and Tunisia.
While the Supreme Court has observed in the past that perfect enforcement is not a requirement of a law's validity, virtual unenforceability is another matter altogether.
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Mr David Elder
Stikeman Elliott LLP
Commerce Court West
199 Bay Street
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