New Registry Requirements for Political Ads on Online Platforms
Parliament recently added new provisions to the Canada Elections Act (CEA) that define online platforms and impose obligations on them with respect to digital ad registries. Elections Canada (EC) has provided the following guidance to assist online platforms in complying with the new requirements.
This guidance was developed in consultation with the Commissioner of Canada Elections. It is provided for information purposes only. In the event of inconsistency, the provisions of the CEA prevail.
Online platform requirements
Section 319 of the CEA defines an online platform as "an Internet site or Internet application whose owner or operator, in the course of their commercial activities, sells, directly or indirectly, advertising space on the site or application to persons or groups." Platforms that meet this definition and certain threshold requirements regarding Canadian visitors or users (s. 325.1(1)), must keep and publish a digital registry of all regulated ads and the name of the person who authorized the ad (s. 325.1(2) and (3)). Ads must be included in the registry on the day they are first displayed (s. 325.1(4)).
These requirements apply to any website or application that sells ad space on the site or application, whether the sale is direct or indirect. In other words, the definition of “online platform” captures any website or application where regulated advertising is displayed. However, only platforms that meet the threshold requirements must keep and publish a registry.
Platforms sell ads in different ways. While some platforms only sell ads directly, others sell advertising to be displayed on partner sites, or on their own platform as well as partner sites. Because the definition of "online platform" includes anyone who sells ads, whether directly or indirectly, any platform where a regulated ad is displayed must comply with the registry provisions. This is the case even if the regulated ad is placed there by a different platform.
A platform that sells ads to be displayed on other sites rather than displaying them on its own will have to transmit the information needed by its partner sites to comply with the registry obligations. If this is not possible, the partner website could instead contract with the seller platform to have the seller platform fulfil its registry obligations. This means that the platform that sells advertising to the political entity would create and maintain a registry, and the partner website where the ad is displayed would link to the seller platform's registry rather than creating its own. Such an arrangement could be put in place even if the seller platform has no registry obligations of its own. However, the platform where the ads are displayed remains responsible for keeping and publishing a registry.
EC notes that political entities also have obligations related to the online platform registry provisions. Political entities that buy advertising on an online platform must provide all the information needed for the platform to comply with the registry provisions (s. 325.2) This includes identifying the ad as being an ad that is regulated under the CEA, a position that is reflected in EC's guidance to political entities, including third parties (see link).
Finally, EC notes that some platforms may decide not to sell regulated ads rather than create a registry. However, in such situations, steps must still be taken to ensure that no regulated advertising appears on the platform. If regulated ads appear without being included in a registry, an investigation and even prosecution could take place, depending on the circumstances.
Questions and Answers
The following Q & A addresses some of the most common queries Elections Canada has received to date regarding the new digital platform ad registry requirements that are now part of the Canada Elections Act.
We will continue to update this list as further issues come to our attention.
- When do the new provisions come into effect?
- To whom do the registry provisions apply? What platforms are covered?
- What visit thresholds must be reached for a digital ad registry to be required?
- What if a platform doesn't sell ads directly?
- Which ads must be included in digital ad registries during the pre-election and election periods?
- What kinds of communications do not have to be included in the digital ad registries?
- What is issue advertising?
- How do I know when an ad should be included in a registry?
- What information should be included in the registry?
- For how long does a registry have to be maintained?
- When does an ad have to be included in the registry?
- Can an organization with platforms spanning multiple sites and/or apps create a centralized registry and link to the registry from those sites and/or apps?
- How will the law be enforced?
- What are the penalties for not complying with the law?
- If organizations have questions about how to implement the legislation, who should they contact?
- Will Elections Canada makes its own digital ads available?
- Which elections are covered?
- Does linking to a video ad meet the requirement to include an “electronic copy”?
- Do TV and radio ads need to be included in the registry?
- Are there any other new advertising rules that digital platforms should be aware of?
1. When do the new provisions come into effect?
The digital ad registry requirements will come into effect on June 13, 2019.
If a general election were to be called between June 13 and June 29, there would be no pre-election period, and the registry requirements would kick in on the day the campaign starts.
In the case of a fixed election on October 21, 2019, the new pre-election period will begin on June 30, 2019. This will trigger a series of new obligations, including those regarding the creation of digital ad registries. Beginning on June 30, digital ad registries will have to be in place as soon as a platform starts displaying ads, as defined by the legislation.
If a platform meets the statutory monthly visit thresholds, all regulated digital ads displayed during the pre-election and election periods will have to be included in a registry.
2. To whom do the registry provisions apply? What platforms are covered?
The definition of online platform includes any website or application where partisan advertising or election advertising is displayed. However, the registry provisions only apply to platforms that meet statutory thresholds for visitors or users in Canada.
3. What visit thresholds must be reached for a digital ad registry to be required?
The Canada Elections Act requires an ad registry when the following monthly visit thresholds are reached:
- For platforms mainly in English: three million unique visitors in Canada a month
- For platforms mainly in French: one million unique visitors in Canada a month
- For platforms mainly in a language other than English or French: 100,000 unique visitors in Canada a month
For partisan ads, monthly figures should be based on the average number of monthly visits to a platform in the one-year period prior to the beginning of the pre-election period; for election advertising, the one-year period prior to the beginning of the election campaign.
4. What if a platform doesn't sell ads directly?
It is the responsibility of any platform to maintain or link to a registry when regulated digital ads are displayed on their site or app. If a company sells advertising that is displayed on another platform, the company that sells the ads is responsible for transmitting the information its partner site needs to comply with the registry obligations. If this is not possible, the partner website can instead contract with the company to have the seller platform fulfil its registry obligations.
5. Which ads must be included in digital ad registries during the pre-election and election periods?
The legislation applies to two categories of ads: partisan advertising and election advertising. The Canada Elections Act defines both categories in a very similar manner. Both definitions include ads paid by regulated political entities, such as a registered party, potential candidate or candidate, or third party. Elections Canada has previously taken the position that these definitions only apply to online messages if they have a placement cost or would normally have such a cost. A placement cost includes ad sponsorship or boosting existing content, whether that content was initially paid or unpaid.
Both partisan advertising and election advertising are defined as ads that promote or oppose a party or a candidate. In addition, election advertising includes advertising that takes a position on anything that is or may become an issue during a federal election campaign, from an item in a political party's platform to an issue at the electoral district level. This latter form of advertising is sometimes called “issue advertising” but it is only regulated during the election period.
6. What kinds of communications do not have to be included in the digital ad registries?
Some messages transmitted to the public do not qualify as regulated advertising and, therefore, are not subject to the digital ad registry requirements of the Canada Elections Act. Examples include:
- Text messages, e-mails, and other private messages
- User-generated content posted for free on social media
- Editorials, columns, or news articles
- Messages and content on a political entity's own website, including videos posted on those websites or on free websites, such as YouTube
7. What is issue advertising?
Issue advertising is the transmission of a message to the public during an election period that takes a position on an issue with which a candidate or registered party is associated without identifying the candidate or party in any way. Like other election advertising, issue ads must include a tagline.
There are three essential elements in issue advertising:
- Timing: The ad transmission must be during the election period. Any issue ads transmitted outside that period are not regulated.
- Content: The content of the ad must be for or against an issue with which at least one candidate or registered party is associated. Such issues could be social, domestic or foreign policy, economics, or national security issues. Individuals or groups can learn more about issues associated with registered parties and candidates based on the registered party or candidate's political platform, debates they participate in, social media campaigns, etc.
- Context: Determining whether a particular message promotes or opposes an issue with which a candidate or registered party is associated is largely done based on the facts. An issue ad transmitted during the election could at some point become associated with a candidate or registered party. It is, therefore, important to be mindful that any political ad for or against an issue transmitted on a platform during elections may be regulated.
8. How do I know when an ad should be included in a registry?
The legislation states that advertisers must provide all information required for a platform to meet the legal requirements. Thus, advertisers must identify themselves when placing a regulated political ad, including regulated issue ads. Those ads must contain a tagline saying who authorized the ad. Elections Canada's guidance to political entities, including third parties, reflects this requirement.
When there is doubt about whether an ad should be included in the registry, there is no penalty for including it as a cautionary measure.
9. What information should be included in the registry?
Each entry in the registry should include:
- An electronic copy of the ad displayed on the platform
- The name of the person who authorized the ad
The registry should be easily accessible to the public via a visible link on the platform.
The Canada Elections Act does not prohibit platforms from including more information about regulated ads.
10. For how long does a registry have to be maintained?
Each ad must be kept in the registry for two years after the election. Following that period, platform operators or owners must keep the registry information related to that ad for an additional five years.
11. When does an ad have to be included in the registry?
On the day the ad first appears on the platform.
12. Can an organization with platforms on multiple sites and/or apps create a centralized registry and link to the registry from those sites and/or apps?
Yes, provided that a link to the centralized registry is easily available and identifiable from each site and/or app where regulated ads are displayed.
13. How will the law be enforced?
Complaints related to the registry can be sent to the Commissioner of Canada Elections. It is the Commissioner's mandate to determine appropriate investigative or enforcement actions.
14. What are the penalties for not complying with the law?
The Commissioner of Canada Elections can impose an administrative fine, use a compliance agreement to correct a situation, or lay charges, depending on the circumstances.
If the Commissioner decides to lay charges, the Public Prosecutions Service of Canada conducts the prosecution. A conviction could result in a fine and/or imprisonment.
Offences include the failure to create and appropriately maintain a registry and keep information for the required amount of time. There is also an offence if political entities (including third parties) buy regulated ad space but do not provide the information necessary to maintain a registry.
15. If organizations have questions about how to implement the legislation, who should they contact?
Elections Canada will continue to provide guidance where and when possible. If you have questions that are not addressed by this guidance document, you should contact Elections Canada's Public Enquiries Unit at 1-800-463-6868.
EC will assess the impact of the new ad registry requirements and may choose to recommend that Parliament amend the provisions following the next general election.
16. Will Elections Canada makes its own digital ads available?
Elections Canada has committed to make all its communications, including all forms of advertising, available on its website in one centralized location during the pre-election and election periods. A link will be provided in this spot as soon as Elections Canada's own repository is available.
17. Which elections are covered?
Only federal elections are covered, but the provisions apply to both general elections and to by-elections.
18. Does linking to a video ad meet the requirement to include an “electronic copy”?
No. A link to the advertising message is not an electronic copy.
19. Do TV and radio ads need to be included in the registry?
No, the online platform registry provisions only apply to internet advertising. However, there is no penalty for including additional ads in a platform’s registry. The Act also has some provisions specific to television advertising, and others that apply to all advertising including online (for example, taglines).
20. Are there any other new advertising rules that digital platform owners or operators should be aware of?
It is now prohibited for foreign entities or individuals to purchase regulated ads during the election period. Platform operators or owners who knowingly sell election advertising to non-Canadians could be investigated by the Commissioner of Canada Elections, and compliance or enforcement actions could follow, up to and including prosecution.