Tweet too early on election night and those 140 characters could result in a $25,000 fine, but only if someone complains.
Elections Canada warned Canadians this week that the election law prohibits people from “premature transmission” of results from one part of the country before polls close in another time zone.
The law used to only be a concern for broadcasters, but with millions of Canadians in constant conversation on Twitter and Facebook, individuals are just as able to transmit the forbidden information across the country.
According to Elections Canada, posting results on a Facebook wall or on Twitter would be considered public transmission, but private messages are not.
“It’s largely complaints driven,” said John Enright of Elections Canada. “If the commissioner receives a complaint on any matter and if there is found to be a breach of the elections act there may be other steps or repercussions from that.”
The law has critics saying it is outdated an unenforceable in 2011.
“We think the law in antiquated and it does infringe on the freedom of speech of Canadians and we think Canadians should be free to discuss democracy, to discuss elections,” said Stephen Taylor, the social media expert at the National Citizens Coaliton.
It’s hard to imagine how Elections Canada would enforce this law with tens of thousand of people expected to tweet election results next Monday, said Taylor.
The debate is already raging online, with tweeters suggesting online protests of the law.
“We should all tweet on May 2. Either we flood the system and EC gets overwhelmed or we all get fined and end up paying for #elxn41 win-win!,” quipped Denis Gagnon.
“So is anyone in Canada organizing a mass tweet-in to protest the (absurd) ban on election night tweeting?,” asked jayrosen_NYU, a journalism professor in New York.
Even NDP MP Charlie Angus joined in the debate, tweeting: “#ndp message to elections Canada. Don’t silence the internet on election night. Digital voices must be heard.”
Individuals under the law
The act was established in 1938 with the rationale that sharing the results from eastern Canada might impact the decisions of western voters.
The act doesn’t distinguish between forms of transmitting election results to the public, but Elections Canada says some courts have found that websites are a type of public transmission.
“Those are web publications, so in theory those can be pursued but I can’t image how they could,” says Dan Burnett, a media lawyer at Owen Bird Law Corporation in Vancouver.
“Are you going to have enforcement people hunting people down all over social media?”
Burnett said the rationale behind the law doesn’t hold water.
“It is arguable that unfairness results from the black out as is prevented by the blackout,” he said.
Elections Canada has taken the case of online transmission to the highest levels of Canadian law, the Supreme Court.
Putting the law to the test
Paul Bryan was fined under the Elections Act for posted the results of polls in Atlantic Canada on his website during the 2000 federal election.
He took the case to the Supreme Court arguing that the law infringed on his Charter-protected freedom of expression and freedom of political association.
The court, by a narrow margin of 5-4, upheld the law in 2007.
“Laws are made to reflect reality, not shape an alternative that doesn’t exist,” says Taylor. “If the modern reality that everyone, everyone is tweeting about the election results or putting it on Facebook, the Supreme Court is going to have to recognize that the cat is out of the bag, there’s nothing they can do.”
Big media organizations have dealt with the ban by having a rolling blackout across the country, opening the airwaves only when the polls close in a viewer’s specific region.
But Burnett says if individuals can tweet and post the results, it doesn’t make sense for big media to be silenced.
Onus on Elections Canada
Keeping silent is Elections Canada’s responsibility, according to Taylor.
“Elections Canada is the custodian of the information,” he said. “What Elections Canada should do is keep all the ballot boxes sealed and start counting them all at the same moment.”
Election Canada has already attempted to minimize the issue by staggering the hours in which polls are open.
Enright said that it is up to parliament to change the laws, but that Canada’s chief electoral officer makes recommendations to the government after every election and could make suggestions on social media.