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State of play – 3rd party advertising rules and the 2013 provincial election

February 5th, 2013 Policy Note – a progressive take on BC issues

BC’s third party election advertising law has been highly controversial since its introduction in 2008. I wrote the following briefing note to help organizations understand if/how the law affects them.

BC’s 3rd party election advertising law applies to many many kinds of public communication during a provincial election campaign — so even if you don’t think your organization’s communication activities remotely resemble “advertising” you should probably read this.

This update gives some very brief history about the rules, reviews changes since the last provincial election, and provides information about an upcoming information session being organized by Elections BC. Please note the caveat that I’m not a lawyer or legal expert. Also, I’m talking about how the rules apply to organizations (it’s a bit different for private individuals).

Before the last election in 2009, the provincial government brought in highly controversial new “third party election advertising rules.” These rules were ostensibly created to limit advertising by big spenders like corporations and create a more level democratic playing field during election campaigns. But the rules included an extra “pre-campaign period” that kicked in well in advance of the official 28-day election campaign window. A charter challenge was launched and the BC Supreme Court said spending limits during this extra time was an excessive limit on free speech. As a result, in the lead-up to the 2009 provincial election, 3rd parties (ie, anyone other than a political party or candidate) could spend whatever they wanted until the start of the 28-day campaign period. (Though they were still required to register with Elections BC and report on their activities during that extra 2-months.)

The pre-campaign period business was not the only problem with these rules, however — and this is where we get to the issues of particular concern to NGOs, charities, non-profits, volunteer-run groups, etc.

First, the legislated definition of 3rd party election advertising is extremely broad, covering many forms of public communication we normally would not think of as advertising. Meaning we’re not just talking billboards and radio or tv ads — we’re talking websites, blogs, Twitter feeds, etc. Also, the rules say you must register before you do anything that could be considered advertising. Unlike in other provinces and federally, BC’s rules don’t specify a minimum spending threshold below which you needn’t bother registering.

As a result, not only is the definition of election advertising extremely broad, it captures all kinds of things that do not cost money — like using Twitter. I realize this makes no sense really, but that’s how it works. So, for example, if your organization plans to do any of the following during a provincial election campaign, you are supposed register with Elections BC as a third party election advertising sponsor before doing it: post comments about any provincial policy issue on your organization’s Facebook page; speak about any public policy issue at a public event; write to all the political parties about an issue of concern to your organization and post their responses with your non-partisan comments/analysis on your organization’s website. These are just a few examples of what “counts” as advertising under these rules.

Not surprisingly, the rules created a lot of confusion and stress for “small spenders” during the last provincial election, especially for charities, which are so careful to remain non-partisan. A number of organizations censored themselves as a result. The CCPA co-published research about these problems in the study Election Chill Effect: The Impact of BC’s New Third Party Election Advertising Rules on Social Movement Groups.

Second, the reporting requirements for 3rd party advertisers are quite extensive. You are required to report the full name of anyone (be they an individual donor or institutional/organizational funder) who contributed $250+ to your organization beginning 6 months before the the start of the campaign period (so about 7 months in total), along with the contribution dates and amounts. The purpose of the contribution does not matter. Elections BC makes these reports publicly available on its website. (The only exception to this is if you spend less than $500 on advertising, in which case you just have to report that fact to Elections BC and can skip the other parts of the disclosure report.) Not only does this raise privacy concerns for donors (who have quite a different expectation of privacy if giving to a charity or non-profit than if giving to a political party), it imposes a much greater level of disclosure on non-profits and charities than any other legal frameworks they’re accountable to without adequate rationale.

It’s worth pointing out that the penalties for breaking these rules are significant (fines, jail time, etc). I’d like to think that if Elections BC decided an organization was not in compliance, and it was a good-faith error (i.e., unintentional and not a case of someone trying to sneak a million dollar tv ad campaign under the radar) they would probably be inclined to give that organization a chance to fix the situation before penalties were levied. But then again, the BCGEU was hit with a big fine during last year’s by-elections as a result of running ads the union didn’t realize came under the definition of election advertising. BCGEU got the fine overturned in court, but only because they could show they made a genuine effort to comply with the rules (at least, that’s my understanding of the decision, I haven’t read it).

A few things have happened since the last election:

First, last fall the provincial government tried to bring in a new variation of a “pre-campaign period.” It asked the BC Supreme Court to give an opinion as to whether this new version was constitutional. The court said no. Which means that in the 2013 election, 3rd parties will only need to register, report and limit their spending during the 28-day campaign period itself. And that means less hassle and paperwork, so a small improvement.

Second, Elections BC has published a new guide to the 3rd party election advertising rules — it is available here. The new guide is still rather confusing, because fundamentally, these rules do not make sense. But it’s better than what was available last time around. I think Elections BC is trying to be as helpful as possible in administering what is a poorly designed law.

Elections BC has also changed its interpretation of the rules in some important ways. For example, it has added an exemption for “any archived material that is not reused or re-advertised in relation to an election.” Meaning, if your organization publishes an analysis of the provincial government’s policies on child and youth services on your website tomorrow, by the time the election campaign rolls around in April, it will be considered “archived” — provided you don’t do anything to draw attention to it during the campaign period (i.e., you don’t stick it up on your website homepage or draw attention to it using your Facebook or Twitter feeds, etc).

My experience of reading the revised guide from Elections BC is that these rules are still pretty ridiculous and confusing in general. I had to send them three pages of questions with examples in order to get clarity on exactly how they will apply to CCPA’s work specifically.

If you want to better understand how the 3rd party rules may affect your organization during the upcoming election, you could attend one of the upcoming information sessions Elections BC is hosting — one in Vancouver on February 12 and another in Victoria on February 18 (see details below – note that registration is required).

A third development is that on January 29, 2013 the Freedom of Information and Privacy Association (FIPA) filed a constitutional challenge with the BC Supreme Court arguing that not having a minimum registration threshold (i.e., requiring people to register before they do any public communication even if that communication doesn’t cost any money) is an unreasonable restriction on free speech. The court will likely issue its ruling well before the provincial election campaign starts. If the court rules in FIPA’s favour, it could mean that most “small spender” organizations that primarily rely on free or low-cost communication tools don’t have to be bothered with these rules at all. I’ll keep you posted.