What you need to know before selling political advertising on your online platform

In an increasingly digital world, political parties and candidates turn to online platforms (or “platforms” or “sites”) to reach voters and donors. 2018 amendments to the Canada Elections Act (the “Act”) requires owners and operators of online platforms to publish a registry of political ads sold on their platform.[1] Failure to record ads may attract significant penalties.

With a federal election called for September 20th, online platforms and advertisers should take the time to understand how they are affected by this relatively new registration requirement.

This election law primer is intended to convey some important considerations with regard to selling political advertising. It is intended as general guidance only. If you have any specific questions or concerns, please contact Awanish Sinha, Hartley Lefton, Amanda  D.  Iarusso, Jacob Klugsberg, Andrew Butler, or Adam Kanji of our firm’s Public Sector. We would be pleased to assist you.

Election advertising registry

Amendments introduced in Bill C-76, the Elections Modernization Act, now require owners and operators of online platforms to publish a registry of political ads sold on their platform.[2] An “online platform” includes any website or application that sells ad space, whether the sale is direct or indirect.[3] Organizations that sell television or radio commercials are not required to maintain and publish a registry.

Whether you are required to publish a registry depends on (1) the type of content you sell, and (2) how many users visit your online platform.

Type of content

Because the federal election is underway, online platforms need only concern themselves with the new registration and publication rules pertaining to “election advertising”.

Election advertising” is the transmission to the public by any means, during the election period, of an advertising message that (1) promotes or opposes a registered party or the election of a candidate, or (2) takes a position on an issue with which a registered party or candidate is clearly associated.[4] The “election period” runs from the day that the election is called (i.e., the issuing of the writs) to polling day.[5] In this case, the election period began on August 15, 2021 and ends on September 20, 2021.

Certain types of digital communications that might fall within the definition of election advertising are exempt from the registration requirement:

· user-generated content on social media sites, such as on YouTube, Twitter or Facebook;

· text messages, emails, and other private messages;

· content posted on a political party’s or candidate’s website or videos posted on other online platforms, such as Instagram or YouTube; and

· editorials and news articles.[6]

How many users visit your online platform

The registry requirement only applies to online platforms that meet the following thresholds of monthly users:

Language in which the online platform’s content is primarily available

Minimum average unique monthly visitors in the 12 preceding months

English

3 million unique monthly visitors

French

1 million unique monthly visitors

A language other than English or French

100,000 unique monthly visitors [7]

The rules have global reach. If an online platform is accessible from Canada, meets the applicable threshold, and contains regulated election advertising — whether sold by the platform itself, or placed and displayed on the online platform by a third party vendor — then the registry requirement will apply.[8]

How and when do I register?

Advertisements must be included in the public registries on the first day that they are published on the online platform. The registry must be accessible by way of a visible link and remain accessible to the public for two years following the general election.[9] Moreover, the Act requires online platforms to maintain the information included in the registry for five years following an election.[10]

Two items must be included in the registration of each advertisement: (1) an electronic copy of the advertisement published on their online platform, and (2) the name of the individual who authorized the publication.[11]

Online platforms that intentionally fail to adhere to these rules are liable for fines of up to $50,000. Unintentional violations of the rules are subject to fines of up to $2,000 and imprisonment for a term of up to 3 months, or both.[12] In addition to fines, the Commissioner of Canada Elections may use a compliance agreement to correct a situation or may elect to lay charges.[13]

Obligations of parties, candidates, and organizations purchasing election ads

Political parties, candidates, and third parties are required to provide platforms with all the information needed for an online platform to comply with the registration requirement. For example, a political party purchasing ad space on ABC Online Platform must provide the Platform with an electronic copy of the ad and the name of the person who authorized its publication.[14]

If political entities do not provide the necessary information to an online platform when purchasing ad space, then they too can be charged with an offence under the Act.[15]

The bottom line

Online platforms ranging from social media websites to online news outlets provide a forum for parties, candidates, and third parties to engage an increasingly digital electorate. These organizations should take the time to understand their obligations under the new registration and publication requirements.

This article is part of our 2021 federal election series. You can access related content here.

Have questions about working with government and government agencies? The Public Sector experts at McCarthy Tétrault LLP can help. Please contact Awanish Sinha, Hartley Lefton, Amanda  D. Iarusso, Jacob Klugsberg, Andrew Butler, or Adam Kanji if you have any questions or for assistance.

Authors: Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, Jacob Klugsberg, Will Dandie

 
 

[1] Canada Elections Act, S.C. 2000, c. 9, at s. 325.1(2).

[2] Canada Elections Act, supra at s. 325.1(2).

[3] Canada Elections Act, supra at s. 319; Indirect advertising refers to instances in which an online platform sells ads that will be displayed on different online platforms. In those cases, the online platform which sells the ads must transmit to partners the information needed to comply with the registration requirement, as per Elections Canada, New Registry Requirements for Political Ads on Online Platforms [New Registry Requirements].

[4] Canada Elections Act, supra at s. 2(1) (“election advertising”).

[5] Canada Elections Act, supra at s. 2(1) (“election period”).

[6] New Registry Requirements, supra.

[7] Canada Elections Act, supra at s. 325.1(1).

[8] New Registry Requirements, supra.

[9] Canada Elections Act, supra at s. 325.1(4); New Registry Requirements, supra.

[10] Canada Elections Act, supra at s. 325.1(4).

[11]Canada Elections Act, supra at s. 325.1(3).

[12] Canada Elections Act, supra at ss. 495(1), 495(4), 500(1), and 500(4).

[13] New Registry Requirements, supra.

[14] New Registry Requirements, supra.

[15] Canada Elections Act, supra at ss. 495(1)(a.2), 500(1); New Registry Requirements, supra.

The rules have global reach. If an online platform is accessible from Canada, meets the applicable threshold, and contains regulated election advertising — whether sold by the platform itself, or placed and displayed on the online platform by a third party vendor — then the registry requirement will apply.[8]

How and when do I register?

Advertisements must be included in the public registries on the first day that they are published on the online platform. The registry must be accessible by way of a visible link and remain accessible to the public for two years following the general election.[9] Moreover, the Act requires online platforms to maintain the information included in the registry for five years following an election.[10]

Two items must be included in the registration of each advertisement: (1) an electronic copy of the advertisement published on their online platform, and (2) the name of the individual who authorized the publication.[11]

Online platforms that intentionally fail to adhere to these rules are liable for fines of up to $50,000. Unintentional violations of the rules are subject to fines of up to $2,000 and imprisonment for a term of up to 3 months, or both.[12] In addition to fines, the Commissioner of Canada Elections may use a compliance agreement to correct a situation or may elect to lay charges.[13]

Obligations of parties, candidates, and organizations purchasing election ads

Political parties, candidates, and third parties are required to provide platforms with all the information needed for an online platform to comply with the registration requirement. For example, a political party purchasing ad space on ABC Online Platform must provide the Platform with an electronic copy of the ad and the name of the person who authorized its publication.[14]

If political entities do not provide the necessary information to an online platform when purchasing ad space, then they too can be charged with an offence under the Act.[15]

The bottom line

Online platforms ranging from social media websites to online news outlets provide a forum for parties, candidates, and third parties to engage an increasingly digital electorate. These organizations should take the time to understand their obligations under the new registration and publication requirements before the next federal election is called.

This post is part of our 2021 federal election series. You can access related content here.

Have questions about working with government and government agencies?

The Public Sector experts at McCarthy Tétrault LLP can help. Please contact Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, Jacob Klugsberg, Andrew Butler, or Adam Kanji if you have any questions or for assistance

[1]Canada Elections Act, S.C. 2000, c. 9, at s. 325.1(2).

[2]Canada Elections Act, supra at s. 325.1(2).

[3]Canada Elections Act, supra at s. 319; Indirect advertising refers to instances in which an online platform sells ads that will be displayed on different online platforms. In those cases, the online platform which sells the ads must transmit to partners the information needed to comply with the registration requirement, as per Elections Canada, New Registry Requirements for Political Ads on Online Platforms [New Registry Requirements].

[4]Canada Elections Act, supra at s. 2(1) (“election advertising”).

[5]Canada Elections Act, supra at s. 2(1) (“election period”).

[6]New Registry Requirements, supra.

[7]Canada Elections Act, supra at s. 325.1(1).

[8]New Registry Requirements, supra.

[9]Canada Elections Act, supra at s. 325.1(4); New Registry Requirements, supra.

[10]Canada Elections Act, supra at s. 325.1(4).

[11]Canada Elections Act, supra at s. 325.1(3).

[12]Canada Elections Act, supra at ss. 495(1), 495(4), 500(1), and 500(4).

[13]New Registry Requirements, supra.

[14]New Registry Requirements, supra.

[15]Canada Elections Act, supra at ss. 495(1)(a.2), 500(1); New Registry Requirements, supra.

Authors