Memorandum from the Chief Electoral Officer
TORONTO, October 9, 2007 – In anticipation of Internet advertising activity in the upcoming 2007 general election and referendum period I am providing this document to act as a reminder of rules under the Election Finances Act (“EFA”) and the Electoral System Referendum Act, 2007 (“ESRA”, 2007) and Ontario Regulation 211/07 (“O. Reg 211/07”). These rules apply to all advertising activity by political parties, constituency associations, candidates, third parties, referendum campaign organizers, individuals, corporations, and trade unions. They apply to advertising in all media, including the Internet on, for example, websites, blogs and social networking sites such as Facebook and YouTube.
Political advertising is defined under the EFA as advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or the election of a registered candidate. Referendum advertising is defined under O. Reg 211/07 as advertising in any broadcast, print, electronic or other medium with the purpose of promoting a particular result in the referendum.
Similar to the treatment of costs in the production of print or broadcast advertising, any production or posting costs or service fees related to political or referendum advertising on the Internet (e.g., audio and video production, web design, hosting fees or domain name registration) are to be accounted for as party or registered candidate campaign expenses that are subject to the prescribed spending limits. Further, if that advertising is done with the knowledge and consent of the registered political party or candidate then that cost must be reported by the candidate or political party as both a contribution and an expense that is subject to the spending limits. For referendum advertising on the Internet, these are expenses that are subject to the reporting requirement under O. Reg 211/07.
People or groups, other than political parties and constituency associations, who spend $500 or more on political advertising or on referendum advertising, are required to register with the Chief Electoral Officer as third party advertisers or referendum campaign organizers.
Websites created for the purpose of promoting or opposing directly or indirectly a candidate, political party or referendum outcome are considered to be advertising. Even in situations where Internet advertising is claimed to be free, the rules in the relevant legislation and around display of authorization and blackout restrictions apply. Every registered party, candidate, association, third party, or referendum campaign organizer, and every person, corporation, or trade union must indicate who has caused the advertisement to appear or who has paid for it.
The political and referendum advertising blackout dates for the upcoming general election period are October 9 and 10, 2007. Internet advertising established before, and not altered during these dates, can remain posted. What this means, in addition to not altering the advertisement (e.g. “Today’s the day to vote for John Smith), is that further electronic distribution of that advertisement during the blackout period is also prohibited. On October 9 and 10 for example, a coordinated promotional campaign of volunteers sending unsolicited mass e-mails that contain web videos or a coordinated negative campaign by paid bloggers attacking a candidate would be prohibited.
In regulating political and referendum advertising over the Internet, similar to the regulation of print and broadcast advertising, Elections Ontario recognizes that free speech, debate and commentary are integral to the electoral process. Under the EFA and O. Reg 211/07, the rights and obligations of individuals and groups advertising over the Internet are not different than those pertaining to advertising in other forms of media. In the case of print and broadcast media, whether or not the production and communication of a message amounts to political or referendum advertising is determined on a case-by-case basis by looking at the manner of dissemination, the content, the author, and any associated expenses. The same is true for communications over the Internet. The question as to whether or not the production and communication of a message via a blog or website amounts to political or referendum advertising, for example, can be answered using similar principles. Just as personal correspondence, phone calls and letters to the editor are generally not considered political and referendum advertising, personal e-mails and similar personal communications on the Internet are generally not considered political and referendum advertising.
As Chief Electoral Officer, part of my role under the Election Finances Act, the Electoral System Referendum Act, 2007 and Ontario. Regulation 211/07 is to help those individuals and organizations who are participating in the general election and referendum to understand their obligations. Where individuals and groups are planning to advertise over the Internet, I encourage these participants and others to consider the principles I have explained above. Where participants and members of the general public have further questions or complaints about material on the Internet, Elections Ontario will respond to and consider such matters in the same way as it does with respect to printed material, and radio and television messages.
John L. Hollins
Chief Electoral Officer