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What happens when legislation designed to combat misinformation becomes embroiled in it?

A media and Twitter storm erupted last week when a spokesperson from Elections Canada suggested that climate change would be a regulated “election issue” because Maxime Bernier had questioned climate science.
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What has ensued is a perfect example of how unclear policies, speculation and superficial journalism can quickly cause confusion and make it difficult to determine the truth. What’s ironic is that this problem centers around the updated Elections Act. An update which was in part intended to deal with the growing threat of misinformation and the influence it could have on the election.

After the initial comments from Elections Canada last Sunday, media stories stating that Elections Canada was ‘muzzling’ environmental charities and suggesting that groups would be prohibited from talking about climate change proliferated across Canada and internationally.

Many of the stories incorrectly characterized the issue, suggesting that no one would be allowed to talk about climate or that charities could lose their charitable status if they did. But many missed the real issue underlying the Elections Canada statement – a much broader interpretation of what would be considered an “issue” during the election and no clarity on the threshold that would trigger a topic to become an “issue.”

In addition to partisan advertising, any group or individual spending over $500 advertising “a position on an issue” that is or becomes associated with a candidate or party would be required to register as a third party organization.

This definition is vague. The interpretation that many groups use, based on legal advice, is that general advertising on an issue was fine, for e.g. “Canada is facing a climate emergency and must act” but that any message more closely aligned (or opposed) to a party would be regulated by third party rules, for e.g. “Canada is facing a climate emergency and must keep the federal carbon tax.” This definition is in line with the language of the Act. It does not say that any communication on an issue associated with a candidate or party will be regulated; rather, specifies that “taking a position on an issue” associated with a party requires registration.

The real stir created by the Elections Canada comments was this much broader interpretation of how an “issue” will be determined with no guidelines at all on how this will be applied.

In response to the media attention and public outcry, Elections Canada released a statement to clarify the situation. They cleared up some of the more extreme speculations, assuring Canadians that defining climate change as an issue has not made it “partisan”, and that charities would not lose their charitable status if they registered as third parties. However, they actually doubled down on this broad interpretation of election “issues” stating that the Election Act doesn’t define what is an issue and nor does it distinguish between fact and opinion.

This is where the media failed again. The next day, many outlets ran headlines stating that Elections Canada had clarified the issue, groups were able to talk about climate during the election again! But anyone following this closely could see that the statement from Elections Canada raised more questions.

Elections Canada has stated that they don’t determine what is or is not an election issue. Obviously, they are not the ones putting issues on the agenda — that is what candidates and political parties do — nor can they foresee in advance what will become an election issue. But, after the fact, it is indeed Elections Canada who have the final say in what was and was not an election issue. As the body regulating the Canada Elections Act and determining whether or not individuals or groups have violated it, they do have the final say on what is considered “taking a position on an issue”. We need to know how they will make that determination.

They’ve said their monitoring of compliance will be complaint based. So how will those complaints be evaluated? If one candidate tweeted about an issue, is that sufficient to make it an “issue”? Does the party leader need to support it? Does it need to be in party platform? There is no guidance at all from Elections Canada on what the threshold is over which something becomes a regulated issue under the Act. This combined with the new broad interpretation and their decision not to distinguish ‘facts from opinion’ is why organizations are feeling confused and frustrated.

Yet at the same time as organizations were more confused than ever, the media had declared this issue to be resolved, only adding to the confusion and misinformation on the topic.

Clearly we need more answers from Elections Canada. If they are going to enforce the Elections Act at all, they must have some guidelines on how they are defining an “issue”. I certainly hope they already have those guidelines in place, and if so, why not share them to add clarity for all the groups who are uncertain on where they stand?

If in one week we can accidentally misinform each other so badly, over an Act mean to reduce the impact of misinformation in our election, what will happen if Russia or other bad actors attempt to purposefully misinforms us this October?

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