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Election Law 'Chilling' Groups Wanting to Share Info

Complex, 'crazy making' third party advertising restrictions sow confusion.

By Andrew MacLeod 22 Apr 2013 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Find him on Twitter or reach him here.

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West Coast Environmental Law Association staff lawyer Andrew Gage: 'This is having a chilling effect on public discussion.'

For four years Judy Wigmore in Kamloops has run the Pesticide Free BC website to share information on an important issue she thinks people should know about. Now she feels forced to make it unavailable until the provincial election is over, her free speech stifled.

"I think people should be able to go to a website like mine and make their own conclusions," Wigmore said in a phone interview not long after the writs were issued to start the official election campaign. "To me it's wrong that individuals' efforts are silenced."

She's among many people and organizations across the province trying to figure out how election advertising laws affect them. Breaking those laws can result in a $10,000 fine and up to a year in jail, putting a deep chill on what people can say during the campaign.

Wigmore said Elections BC officials warned her the pesticide information site likely contravened restrictions that come into play during the 28-day campaign period from when the writs are issued until election day.

Her website included factual information about pesticide laws and the debate about introducing a province-wide ban in British Columbia. Today just three sentences are publicly available on the site as it explains why it is offline: "The website contains third party advertising because it identifies the party that supports a pesticide ban and the one that continues to ignore BCers."

It promises to return, but not until after British Columbians have made their decision on May 14.

No business as usual

Wigmore acknowledges she could have registered for free as an election advertising sponsor with Elections BC, but chose not to. "I'm taking the easy way out," she said. Instead she'll volunteer on the NDP campaign in Kamloops-South Thompson.

For the Sierra Club of BC, registering was not an option, said interim executive director Sarah Cox.

Once registered, if an organization spends more than $500 it is required to file a financial report that includes information about donors. Cox said it would be very easy to spend that much and trigger the need for a report, which would mean publishing the names of anyone who gave the Sierra Club $250 or more during the past seven months.

The organization wouldn't release people's names without checking with them first, and nobody has time to do that, she said.

Also, the Sierra Club received legal advice that registering would be a bad idea at a time when Prime Minister Stephen Harper's government in Ottawa is cracking down on charities they think are spending too much time doing political work. Said Cox, "Registering would be akin to saying we're involved in political activities."

Instead, based on advice from Elections BC, the conservation group has frozen much of its website and removed the "Take Action" section, said Cox.

"I understand why the third party election advertising rules are in place," Cox said. It makes sense to restrict people or groups with deep pockets from buying undue influence in an election, but there's something wrong with how it affects small groups, she said.

"I think it unfairly restricts the activities of conservation groups like the Sierra Club of BC," she said. "We can't continue business as usual during the election campaign."

Rules 'crazy making'

Figuring out what they can and can't do has been time consuming, Cox said. "Some of the restrictions are crazy making."

For instance, the Sierra Club can send out press releases and talk to media, but it can't post those notices or clippings of any stories on its website, she said, adding, "That's crazy."

The group can hold regularly scheduled events or put out publications that appear periodically, but it can't put out any one-page fact sheets on specific issues that might be associated with a candidate or party, she said.

It's okay to mention on Twitter that spirit bears live in the Great Bear Rainforest, but not to say the area needs to be protected, she said. The Sierra Club has a large social media following, she said. "It's a shame we can't continue doing that."

The restrictions on advertising have become the subject of discussion among groups very recently, she said. "It's only come to our attention in the last week, so it's been a scramble and different groups are doing different things."

A 2010 Canadian Centre for Policy Alternatives report found the B.C. laws had a "chill effect" on advocacy groups during the 2009 B.C. election.

One of the authors of that report, the CCPA's communication director Shannon Daub, said this time around she's heard from at least four organizations who are removing or restricting content that she would consider in the public interest.

"Some people are finding the rules too complicated, so they just opt out," she said. "People want to comply with the law, so they shut down out of an abundance of caution."

The CCPA registered, but Daub said it has taken several days to figure out the nuances of how the law does or doesn't apply. The think tank can leave existing videos about issues up on its website, but it can't promote them through social media or they become election advertising and count towards the spending limits, she said.

It can publish an editorial on its Policy Notes blog, since that's considered a bona fide periodical publication, but could not add the same piece to its main website, she said. "The problem is fundamentally the rules don't make a lot of sense the way they're structured."

Spike in calls to Elections BC

B.C.'s Election Act is written and passed by the government, but it is interpreted and enforced by Elections BC.

"We've been working really hard to get the message out for groups like that," said Nola Western, the deputy chief electoral officer with Elections BC, noting they ran workshops that some 60 people attended earlier this year.

"I do get a sense there's more awareness out there that there are rules because we have seen a spike in calls around 'is this election advertising or isn't it,'" she said.

As of April 18 her office had handled 550 calls and email inquiries about the rules, she said. Two people were working full time dealing with them. The office had also received 258 registrations from election advertising sponsors, with more pending, she said.

The Election Act defines "election advertising" as "The transmission to the public by any means... of an advertising message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate." It specifically includes "an advertising message that takes a position on an issue with which a registered political party or candidate is associated."

"The definition is broad," acknowledged Western. "Right now we don't even know what all the issues are going to be for this campaign."

The definition does not include an individual sharing their personal views, but it would restrict what an organization could say on social media, she said.

Asked about a group feeling it couldn't put its press releases on its website, Western said the test is what the group would regularly do outside of an election period. "If they normally have a section on their website that is for press releases, they could do that," she said.

But if they instead put it on their homepage or distribute it to people who are not in the media, she said, "Then it could be advertising."

Organizations are free to send information to their members or shareholders, however, and it won't be considered election advertising regardless of its content, she said.

Silencing debate?

On April 19, the West Coast Environmental Law Association published a blog post by staff lawyer Andrew Gage asking, "Are B.C.'s election advertising rules silencing public debate?"

Targeting communications based not on whether they are intended to influence the election but on whether the parties or candidates may have taken a position on the issues raised is a mistake, he wrote. "That goes too far," he said. "In our view, this is having a chilling effect on public discussion at the very time when we most need public discussion."

Gage pointed out, "The rules favour commercial interests and the wealthy over non-profits and other organizations that receive funding from broad and diverse sources."

The Freedom of Information and Privacy Association has been fighting in the Supreme Court of B.C. to have the law changed so that anyone spending under a certain amount of money doesn't have to register. Most jurisdictions in Canada have a floor of $500 and in Alberta it's $1,000, said Vincent Gogolek, FIPA's executive director.

FIPA tried to have the case heard before the election, but the judge agreed with the government's argument that the case is complicated and shouldn't be expedited. "It's moving very slowly forward," said Gogolek.

He said he's confident FIPA will eventually win the case. "It's pretty obviously an infringement on the Charter right of freedom of speech," he said. "We're talking about political speech during an election when we choose our government. I don't see how they can possibly justify this."

It's frustrating how much time is wasted on this, including by FIPA, in the courts, at Elections BC and in countless offices trying to interpret the rules, said Gogolek. "This should have been fixed by now," he said. "It seems like the B.C. government is 100 per cent committed to this."

Asked if the government's goal may in fact be restricting free speech, he said, "It's not hard to connect the dots."

Hey little spenders

Told of Judy Wigmore's decision to bar access to her Pesticide Free BC website, FIPA's Gogolek said, "That's a classic example. That's the chill in action."

It's wrong that people feel they have to make that decision, he said. "They hear about this and they shut up shop for the time we're supposed to be exercising our democratic right. It's ridiculous."

In 2010 the Chief Electoral Officer, the head of Elections BC, recommended the government bring the threshold up to $500 to match the federal government. "Having a consistent registration threshold would prevent the considerable confusion and administrative burden that currently exists," his report said.

Daub said a threshold of $1,000 would make a big difference. The law is justified based on limiting the ability of people or groups with deep pockets from influencing the outcome of an election, she said. But the CCPA's 2010 report found that the majority of registrations in 2009 were for advertising sponsors that spent less than $500, she said. More than three-quarters of them spent less than $2,000.

She asked, "If it's about the big spenders, why are you regulating the people who have very little money to spend?"  [Tyee]

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