6. Protecting Individuals Receiving Electoral Communications – Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections

In order to understand and effectively reach their intended audience, political campaigns increasingly rely on data and data analytics. Although surveys are still commonly used, in the digital era, information about electors' identities and preferences can be collected in many ways, whether directly or indirectly. There have been growing calls to better protect the personal information of electors.

Many electors are willing to receive electoral communications, but they also want their personal information to be collected and used in appropriate, transparent and secure ways. While some parties in the digital age collect and use information about voters in ways that are similar to those of commercial entities, political parties are not subject to binding rules governing the collection and use of personal information. Canadians' concerns about the use and potential misuse of their personal information could undermine their trust in political entities such as political parties and, eventually, their trust in the electoral process.

6.1. Political Entities and Privacy

As political parties expand the ways they communicate with electors, they are also collecting more data about electors. Many, including parliamentarians, have called for stronger protections on electors' personal information.

Extending the fair-information principles found in Schedule 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA) to political parties is consistent with past recommendations and statements made by the CEO. It is also consistent with recommendations made by the House of Commons Standing Committee on Access to Information, Privacy and Ethics; the Office of the Privacy Commissioner of Canada; and many academics and civil society organizations. These principles are based on internationally recognized standards that govern the collection, use and protection of individuals' personal information by private and public organizations.

Elections Canada continues to hold the view that applying these privacy principles to political parties is the best approach moving forward.

In 2018, the Elections Modernization Act established the requirement for registered and eligible political parties to publish, on their websites, a policy for the protection of personal information and to provide it to the CEO. The policy must include statements indicating the type of information collected and how it is protected and used, under what circumstances information may be sold, how the party collects and uses personal information created from online activity and the name and contact information of a person to whom privacy concerns may be addressed.

While these new requirements increase transparency about the policies on the handling of personal information by political parties, they have been broadly criticized as falling short of fair-information principles because while political parties are required to make their policies publicly available, there are no provisions requiring them to actually take measures to protect personal information. Further, there is no oversight mechanism to monitor whether parties actually abide by the contents of their policies.

Elections Canada believes that, in line with the application of fair-information principles, certain minimum standards should apply to parties' privacy policies.

Some electors may not welcome certain types of electoral communications. For example, according to a 2021 Elections Canada survey, respondents were more in favour of being contacted by email (42 percent), voice calls (41 percent) or social media (39 percent) over text messages (27 percent) or automated telephone calls (17 percent). Unsolicited communications may unintentionally reduce trust in elections and damage the relationship between electors and those seeking to represent them.

Political parties are exempt from some of the Unsolicited Telecommunications Rules and Canada's Anti-Spam Legislation (CASL), both administered by the CRTC. Among other things, the Unsolicited Telecommunications Rules require telemarketers to identify themselves when making unsolicited calls, and they enable consumers to receive fewer such calls by registering their telephone number on the National Do Not Call List. CASL requires that individuals be able to unsubscribe or opt out of receiving commercial electronic messages (i.e. emails that offer or promote goods or services for sale).

Many consultation respondents in 2020 also cited the ability to access, view and correct the information that political parties have about an individual as a fundamental privacy right. Under this principle, individuals must be allowed to request access to their personal information as well as to correct it if it is inaccurate or incomplete. Information must be provided on request, except where it is prohibitively costly to provide, or for legal, security or commercially proprietary reasons. Several respondents supported giving parties the ability to decline frivolous or vexatious access requests.

Political parties need to collect information in order to better understand and communicate with the electorate. Trust in their ability to manage this information is likely to improve if they are required to comply with well-established principles that apply to most other private and public entities. Ideally, this greater trust would enhance Canadians' overall confidence in the electoral process.

In this regard, it should also be noted that, in the absence of federal legislation in this area, provinces may act to impose obligations on federal parties. This is already the case in British Columbia, where provincial law has recently been held to apply to federal parties.^{footnote 1}

Recommendation 6.1.1

To better protect electors' privacy and enhance their confidence in how political parties manage their personal information, apply broadly accepted privacy principles, as enumerated in Schedule 1 of the Personal Information and Protection of Electronic Documents Act, to registered and eligible parties, with oversight by the Office of the Privacy Commissioner of Canada.
Although a full application of such broadly accepted privacy principles would be preferable, to ensure a minimum level of protection of electors' privacy, the policies of registered and eligible political parties for the protection of personal information should be required to contain, at least, the following substantive elements:
- Enable Canadians to opt out of receiving communications, or certain types of communications, from political parties.
- Enable Canadians to request access to, and correct, inaccurate personal information that is held by political parties (with an exemption for frivolous or vexatious requests).
- Explain how Canadians' personal information may be shared by political parties in addition to how it is collected, used or sold.

6.2. Preliminary List of Electors

Under the Act, political parties and candidates are entitled to receive lists of electors that contain electors' names and addresses as well as a unique identifier randomly assigned to each elector by Elections Canada. These lists, which are compiled from the National Register of Electors, form an important basis of the information that parties collect, retain and use to engage electors.^{footnote 2}

Parties and candidates also receive "statements of electors who voted," sometimes referred to as "bingo sheets," which, by law, Elections Canada must provide. These statements provide anonymized data, which, when matched with parties' own internal information, allows parties and candidates to identify which electors voted at advance and ordinary polls (although not for which candidate they voted).

Lists are distributed annually to members of Parliament for their electoral districts and to registered political parties for each electoral district where they ran a candidate in the previous general election. Political parties and candidates also have access to various lists throughout and immediately after the election period. In addition to being distributed to confirmed candidates, these lists are generally provided to registered parties, but only for the electoral districts where they are endorsing candidates.

The exception is the preliminary lists of electors, which may be requested by political parties even if they do not intend to field a candidate. The preliminary lists may be obtained soon after the issue of the writs, and they contain the name, address and a unique identifier for each elector in an electoral district. However, if a party does not intend to communicate with electors in order to compete for votes, it is not clear what the information in the lists would be used for. Although it is rare for parties that are not represented by a candidate to request the preliminary lists of electors, the fact that electors' personal information may be legally distributed for no apparent purpose represents a significant risk to privacy.

Recommendation 6.2.1

To require the preliminary list of electors to be made available to parties by Elections Canada only in those electoral districts where that party had past candidates or where they have candidates who have pre-registered according to Recommendation 3.1.1 above.

Footnotes

^{Return to footnote 1} Conservative Party of Canada (Re) 2022 BCIPC 13. Retrieved from https://canlii.ca/t/jmzsq.

^{Return to footnote 2} Electors can apply to have their name removed from the National Register of Electors. However, an elector whose name is not included in the Register and who registers to vote on polling day would have their name appear on the final list of electors. The final lists of electors must be shared with the winning candidate and all political parties that ran a candidate in that district.