Election law needs update to deal with Twitter, Facebook, watchdog says

Parliament must update Canada's election law to respond to new concerns linked to social media like Facebook and Twitter, the country's election watchdog says.

Canada Elections commissioner also finds problems with nomination spending, foreign funding of third parties

Commissioner of Canada Elections Yves Côté says federal election rules should be updated to take social media into account. (Jonathan Hayward/The Canadian Press)

Parliament has to update Canada's election law to respond to new concerns linked to social media like Facebook and Twitter, Canada's election watchdog says.

Commissioner of Canada Elections Yves Côté says several issues emerged during the October 2015 election that revealed shortcomings in federal rules.

"It became clear during the election that the shift towards the use of social media, both by political and non-political entities, is beginning to give rise to issues that the [Canada Elections Act] is not currently designed to accommodate," Côté wrote in his annual report.

One example was photos of marked ballots being posted on social media.

Although Côté's report doesn't mention specific examples, Nova Scotian blogger Parker Donham made headlines on election day after he tweeted a picture of his ballot marked for NDP candidate Monika Dutt in the riding of Sydney-Victoria.

Donham also tweeted a picture of his marked ballot during the 2013 Nova Scotia provincial election. The RCMP investigated, but Donham wasn't charged. Nova Scotia's government later amended its law to make it an offence to take a photograph of a ballot.

While Côté said many Canadians viewed the posts of marked ballots as a "serious breach of the principle of the secrecy of the vote," he determined he could only act under the current law if someone posted a photo of their own ballot while still physically inside the polling station or if they posted a picture of someone else's marked ballot.

Parker Donham displays a T-shirt he had printed with his marked ballot from the 2013 Nova Scotia election. He argued ballot photography could be an important tool for encouraging participation in elections. (Twitter)

"It is clear that the existing rules, adopted in a pre-internet era, do not adequately address this issue," he wrote. "Consequently, consideration should be given to amending the act if the secrecy of the vote is to be protected."

Côté's report also reveals there's a loophole in the Canada Elections Act when it comes to how much money candidates can spend to secure a party's nomination.

While Côté's office received complaints about nomination contestants failing to report all of their spending on goods and services, he found there was little he could do because "as it currently stands, the act does not regulate all expenses associated with a nomination contest such as expenses incurred before the start of the contest."

"This has the potential to significantly undermine public confidence both with respect to the political financing rules for nomination contestants and the [commissioner of Canada Elections'] ability to enforce them."

More clarity needed on role of non-Canadians

Côté suggested Parliament may also want to take a closer look at the section of the act designed to stop non-citizens who reside outside Canada from trying to influence Canadian elections.

During the last election, Côté received complaints alleging foreign nationals were violating Section 331 by providing campaign advice to federal registered parties. Côté concluded that having campaign advisers from outside the country didn't contravene the law.

"Nevertheless, there appears to be some confusion regarding the intended breadth of Section 331 and Parliament may wish to revisit its wording to bring greater clarity to its scope."

Although he received complaints during the election, Côté also found there is nothing in the act to stop third parties from using foreign contributions to fund election activities.

Opposition MPs agree it's time to update the Canada Elections Act to address social media. (Chris Young/Canadian Press)

"A third party can use foreign contributions to fund activities that do not include the transmission of election advertising messages," he wrote. "This includes carrying out election surveys, setting up election-related websites and using calling to communicate with electors."

One problem that doesn't appear to have occurred — despite the controversy the hypothetical possibility caused during the election campaign — was people with their faces covered successfully voting twice.

"As of March 31, 2016, the office had completed the examination of 34 such complaints and concluded that none had resulted in an elector having voted twice."

Amendments to Elections Act coming

Jean-Bruno Villeneuve, spokesman for Democratic Reform Minister Maryam Monsef, said the government plans to amend the Canada Elections Act and is open to suggestions.

"We are interested in examining these and any other reforms based on the experience of the last general election, and we will be reviewing the recommendations from this report with that in mind."

MPs like Conservative Scott Reid agree with Côté that Parliament should update the act.

"I can see his point that a law that was designed in the past, before this kind of situation could have been imagined, has now fallen out of step with the technology."

Reid pointed out pressure from social media has already resulted in one change — the removal of the ban on broadcasting election results from Atlantic Canada while polls in Western Canada are still open.

If this is our one opportunity in a generation, let's update it, let's modernize it, let's bring it into the 21st  century to make sure nobody can cheat."- NDP MP Nathan Cullen

Green Party Leader Elizabeth May would like Parliament to revisit that change.

"I think it was a mistake to have removed the prohibition on broadcasting. I think it affected the results in British Columbia that there were reports of the big red tide. I don't think there is any doubt that affected results."

NDP MP Nathan Cullen, a member of the committee studying sweeping proposals for election reform, said now is a good time to look at how to update Canada's election rules to deal with social media.

"If this is our one opportunity in a generation, let's update it, let's modernize it, let's bring it into the 21st century to make sure nobody can cheat."


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