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VIEW: Coal association gets free pass on election advertising

[Editor's note: The Tyee received this unsolicited opinion piece from Shannon Daub of the B.C. Canadian Centre for Policy Alternatives, and we offer it to you for your consideration. During the election season, we're posting various perspectives on The Tyee's Election Hook, labelled clearly as "VIEW."]

Yesterday The Tyee reported that a three-page "information feature" for the Canadian Coal Association "extolling the virtues of B.C.'s coal industry" in last week's Globe and Mail has been deemed by Elections BC to not be third party election advertising.

For those who haven't followed the third party election advertising issue and don't realize at first glance why I find this shocking, you can get a feel for how broad, confusing, and problematic the rules are here or here.

The three-page insert was one of those newsy-looking advertorials -- fluff content written by a communications firm rather than journalists, without bylines, but presented in a similar visual format to the rest of the paper. The insert also included ads from various mineral and energy companies. Elections BC determined it does not constitute election advertising because the coal association apparently didn't pay for the insert.

I think Elections BC made the wrong call.

Section 228 of B.C.'s Election Act defines the value of election advertising as (a) the price paid for preparing and conducting the election advertising, or (b) the market value of preparing and conducting the election advertising, if no price is paid or if the price paid is lower than the market value.

Section 229.1 further states: the sponsor of election advertising is whichever of the following is applicable: (a) the individual or organization who pays for the election advertising to be conducted; or (b) if the services of conducting the advertising are provided without charge as a contribution, the individual or organization to whom the services are provided as a contribution.

So it doesn't matter whether the Canadian Coal Association paid for that three-page spread or not. They received the services -- the insert itself was labelled as "an information feature for the Coal Association of Canada" and stated that the insert was created "in conjunction with the advertising department of the Globe and Mail" -- and it's the fair market value of these services that count.

It also strains credulity to think that the Globe published this material just for the heck of it. The only plausible scenario I can think of that would explain why the Coal Association didn't have to pay for the insert is if an arrangement was made to create industry-friendly content in order to attract paid advertisers. Indeed, all but two of the ads in the insert are members of the Canadian Coal Association. You do the math.

Regardless of whether advertorial inserts are common practice for newspapers, the Globe's decision to publish one singing the coal industry's praises in the middle of an election campaign in which coal mining and exports are an important issue undermines the newspaper's credibility. I have to wonder how the journalists at the Globe and Mail feel about it.

Of greater concern, however, is that while the Canadian Coal Association gets a free pass, B.C.'s third party election advertising rules are chilling many citizen-based groups and other small spenders engaged in public interest education and communication. These groups have difficulty interpreting the extremely broad and confusing definition of election advertising, and many err on the side of caution in trying to comply with the rules. Charities also have to deal with the possibility that registering as an election advertiser could put their charitable status at risk.

To give you a sense of how perverse these rules are in practice, here are a few scenarios to consider:

• A group of seniors in an assisted living facility feels their rents are being hiked unreasonably. They get together and create a flyer talking about the fact that B.C.'s Residential Tenancy Act doesn't cover assisted living facilities. They distribute the flyer to other residents and their family members. Before they distribute the flyer, they are supposed to register as an advertising sponsor with Elections BC.

• An environmental NGO with an annual budget of $50,000 tweets the statement, "B.C. needs green jobs, not more fracking and LNG." The NGO isn't registered as an election advertising sponsor. They've just engaged in illegal advertising, the penalties for which can include fines and jail time.

• A registered charity that provides services to vulnerable children and youth wants to make sure the issue of child poverty gets some attention during the election campaign. It puts out word through its network that it needs some volunteers to help get the job done. A few people respond, and the volunteers donate their time creating and circulating some basic online resources about child poverty and what could be done about it by the next provincial government. The resources are posted on the organization's website and Facebook page. Not only do these resources count as advertising, but the time these volunteers spend helping out counts as an election advertising expense. That's because volunteer labour is not excluded from the definition of a third party election advertising expense in the Election Act (see above) -- unlike the definition that applies to advertising by political parties and candidates, which does explicitly exclude volunteer labour. The charity is supposed to assign a market value to these volunteers' time, and report it to Elections BC as money spent on advertising.

For more on the advertising rules chill democratic public debate, see these recent stories in The Georgia Straight and The Tyee, or the study I co-authored documenting the impacts of these rules during the 2009 election.

Shannon Daub is communications director of the CCPA-BC.

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