Top Court Upholds BC Law Requiring Election Advertisers to Register

Both sides are claiming victory after the Supreme Court of Canada upheld a British Columbia election law that requires advertising sponsors to register with Elections BC even if they aren’t spending any money.

“We are happy with the ruling,” Attorney General Suzanne Anton said in a phone interview. “It confirms the system that’s been in place for 20 years now.”

But Vincent Gogolek, head of the group that brought the challenge, said the ruling provides long-needed guidance on how the law should be interpreted.

“I think this gives us the result we were looking for, but not in the way we thought we were going to have to achieve it,” said Gogolek, executive director of the Freedom of Information and Privacy Association. “We’re treating this as a victory, a victory for freedom of expression.”

While the federal government and other provinces allow individuals and organizations to spend $500 or more on election advertising before they have to register as an advertising sponsor, in B.C. people and organizations had to register even if they weren’t spending any money.

That’s been an issue for groups like Renters at Risk, which Elections B.C. threatened with penalties that could include a $10,000 fine and a year in jail after it received complaints about materials on the group’s website during byelections in 2008.

Gogolek has said that the rules could mean someone putting a handwritten sign in a window, a bumper sticker on their car or a message on a T-shirt during an election would be breaking the law. FIPA and others have said the requirement to register has a chilling effect on people who want to express their views.

In 2010, then-chief electoral officer Harry Neufeld identified the lack of a spending floor as a problem. “Election advertising rules do not distinguish between those sponsors conducting full media campaigns and individuals who post handwritten signs in their apartment windows,” he noted in a report to the legislature.

The Supreme Court ruled Thursday that the law does restrict freedom of speech, but that the restriction is reasonable when balanced with the public’s right to know who is advertising during elections.

The ruling also spelled out that the application of the law should not be as broad as FIPA and others fear.

“The object of the Act, and the intention of the legislature, indicate that a ‘sponsor’ required to register is an individual or organization who receives an advertising service from another individual or organization, whether in exchange for payment or without charge,” it said.

Individuals who don’t pay for advertising services, or receive them without charge, are not “sponsors” within the act’s meaning, the court ruled. “They may transmit their own points of view, whether by posting a handmade sign in a window, or putting a bumper sticker on a car, or wearing a T-shirt with a message on it, without registering.”

Gogolek said he was glad for the clarity. “There was just such massive confusion about it,” he said, noting the chief electoral officer had been interpreting “advertising” too broadly. “We’ve all been straightened out by the Supreme Court of Canada.”

Anton said interpretation of the act “was never an issue... It’s about paid advertising.”

She said it’s easy to register and Elections BC staff understand the difference between a homemade sign and paid advertising.

“If you’re drawing a banner and carrying it in a parade, that’s not really an issue,” she said, though she added that a group buying materials to make that banner might be in a grey area.

The BC Civil Liberties Association presented arguments as an intervener in the case. “We’re glad for this decision,” said staff lawyer Laura Track. “We see it as affirmation of freedom of speech for individuals engaged in political expression and debate.”

The ruling was less clear in how it applies to groups, she said. “We’re left a bit puzzled by the application of the ruling,” she said. “We’re left unsure what it is an organization can actually do... What this ruling means for those small sponsor organizations is not to me clear.”

Track said “confusion around this act extends all the way to the chief electoral officer” and the court has acknowledged a grey area exists.

That confusion suggests the provincial government has work to do to clarify exactly what the rules are meant to capture and what they are not, she said.