By Rachel H Roy
The BC Election Act requires individuals and organizations to register before they “sponsor” election advertising. This places a burden on people and groups to ensure they understand the law regarding election advertising and sponsorship in advance of engaging in any of these activities.
The BC Freedom of Information and Privacy Association took issue with having to register in order to engage in small-scale election advertising. Unlike the Canada Elections Act, the BC Election Act does not specify a minimum spending threshold (i.e. $500) before sponsors are required to register. The Association pursued its fight all the way to the Supreme Court of Canada (the “SCC”).
Elections BC had previously indicated that election advertising rules do not distinguish between sponsors engaging in full media campaigns and people who post handwritten signs in their apartment windows. Further, EBC’S current resources for third parties focus primarily on the definition of election advertising rather than on the definition of sponsorship.
The SCC’s recent decision refocuses the requirement to register on the basis of whether or not a person or group meets the definition of a sponsor, rather than whether or not their communications meet the definition of election advertising. Election law enthusiasts: see below for more on these definitions.
According to the SCC, “sponsor” captures individuals and organizations who receive advertising services from others in undertaking election advertising campaigns, but exempts election advertising that is not sponsored from the requirement to register.
As such, you do not in fact need to register before posting handwritten signs in your apartment windows.
However, the SCC also acknowledged that, in a close case, whether a particular individual or organization is caught within the definition of sponsor may prove difficult to determine. As such, we are hopeful that Elections BC will provide further guidance on how it will be approaching this issue in advance of the upcoming provincial election.
AQW Law will be holding a workshop for organizations planning to engage in third party advertising during the upcoming election on February 28th. Click here for more details or to register!
Definition of “Election Advertising”
Since it’s been a few years since the last provincial election, here’s a quick refresher on the current definition of election advertising in the BC Election Act.
● Election advertising includes the transmission to the public by any means of an advertising message that promotes or opposes, directly or indirectly, a candidate or party or an issue with which they are associated.
● Certain types of communications have been expressly exempted from this definition, including the non-commercial transmission of personal views by an individual on the internet, by phone, or by text, so don’t worry about your Facebook page being caught under this.
● Further, in August 2016, Elections BC clarified that messages on the Internet, such as Facebook, Twitter, Instagram, etc do not fall within the definition of election advertising unless a person or group has purchased ad space on a social media site or other website. Basically, if you don’t have to pay to place it online, it’s likely not election advertising. For example, while we at AQW can post messages on our firm’s Facebook page that promote a candidate, party or associated issue, these posts would only be deemed election advertising if or when we paid to promote them.
● Election advertising must identify its sponsor by providing a name and contact information. However, clothing, novelty items such as buttons, badges, wrist bands, and necklaces, and small, cheap personal items are specifically excluded from the sponsor identification requirement. So, no need to cram “authorized by the financial agent of …” on to those buttons!
Definition of “Sponsor”
In British Columbia Freedom of Information and Privacy Association v British Columbia (Attorney General), the SCC looked at the BC Election Act as a whole, including the definition of election advertising, sponsorship and the statutory exceptions to these. The Court determined that the requirement to register “is directed only at those who undertake organized advertising campaigns – that is, “sponsors” who either pay for advertising services or who receive those services without charge as a contribution” (at para. 21).
The sponsor of election advertising is deemed to be the person or group who either pays for election advertising, or receives advertising services for free as a contribution, or has one of those two things done on their behalf by another. According to the SCC, sponsorship necessarily involves at least two people – the person providing the advertising service (for money or without charge) and the sponsor (at para. 26).
The SCC discussed the aim of legislation that requires third parties to register and to be subject to election spending limits, which is to ensure that ordinary citizens can clearly see who is behind election advertising. As such, requiring an individual who is handing out homemade flyers to register would serve no purpose as there is no question who is responsible for that advertising (at para. 40).
The SCC also discussed the distinction between the federal and provincial third party registration schemes: the Canada Elections Act imposes a quantitative threshold of registration only upon reaching $500 in election advertising expenses while the BC Election Act imposes a qualitative threshold of registration in advance of undertaking an organized election advertising campaign. As such, both Acts permit small-scale individual election advertising without registration (at paras 48-49).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.