Election law targets Twitter users, but will anyone listen?
Paul Johnston, cp24.com
Published Saturday, April 30, 2011 5:33PM EDT
#elxn41 is fast approaching and the shape of the #cdnpoli landscape stands poised for change as the #cpc, #lpc and #ndp all vie for coveted seats in the #hoc, but social media users who have made this hashtag-speak part of the daily debate are now being asked to keep mum.
In the lead up to Monday's vote, Elections Canada has sternly reminded the public about a law that has been in place since 1938 -- "no person shall transmit the results or purported result of the vote in an electoral district to the public or another electoral district before the close of all the polling stations in that other electoral district."
Originally a concern only for the country's broadcasting community, the issue has gained recent attention with the advent of new social media technologies.
During the federal election in 2000, blogger Paul C. Bryan was fined after posting election results from Atlantic Canada on his website. Contesting the fine as unconstitutional under Section 2 of the Canadian Charter of Rights and Freedoms – which protects freedom of expression - the law was ultimately upheld in a 5-4 vote by the Supreme Court of Canada in 2007.
Bryan ended up paying a fine of $1,000.
Perhaps it is not surprising then that much of the discussion, debate and backlash on the law's merit is happening on social media outlets – most notably Twitter.
Darren Barefoot, a Vancouver-based PR specialist, said the law is behind the times.
"It's simply unfeasible in 2011," he said in a telephone interview from Vancouver . "It's like a 20th Century law for a 21st Century issue."
Barefoot is one of the people behind tweettheresults.ca, a site that will automatically display Tweets that include the hashtag #tweettheresults. The idea is that Tweeters who are in fact tweeting poll results will use that hashtag and those results would then become available in real time on the website.
Barefoot said his motivation reaches far beyond just civil disobedience.
"It's as much just a kind of gesture or symbol to have a conversation about this issue as it is anything in terms of serious civil disobedience or anything like that," Barefoot says. "Obviously the law is untenable and unenforceable. And so it should be changed."
All forms of social media have exploded in the last few years and Twitter has been no exception.
Created in March 2006, and launched in July of that year, Twitter has become immensely popular.
"The growth is just exponential," said Will Stewart, a consultant with the communications firm Navigator Ltd.
"By 2007, they had about 400,000 tweets a quarter," Stewart says.
By 2008, according to Stewart, the year of Canada's last federal election, that number had grown to roughly 100,000,000 tweets a quarter.
"Now, we are at 65,000,000 tweets a day," he said. "It involves so many different parts of the population now. It's so big that it needs to be addressed."
Stewart said that given the current media framework, Section 329 is "antiquated, ridiculous and unenforceable."
"The problem is, the more you dive into this, the more you go into the rabbit hole, the worse it actually gets in terms of good law regulation and good practice."
And Stewart and Barefoot are not alone in this sentiment.
More recently, the CBC and Bell Media Inc. challenged the constitutional validity of Section 329, asking that the application be heard prior to the May 2 election. Earlier this month, Ontario Superior Court Justice Susan Himel denied the request for an urgent and expedited hearing on the matter.
Even some electoral law experts say the law may be problematic.
"It may be that in the current age of Twitter and so on, it's so impossible to enforce that it would become antiquated," said Peter Rosenthal, a University of Toronto professor and lawyer at Roach, Schwartz & Associates.
While the law and its merits today might be questionable, Rosenthal thinks any change is unlikely before the next election.
"I doubt that anything will happen within the next few years, because [there] doesn't seem to have been a groundswell of people complaining about the situation," he said.
"But I would think that over the next eight, 10 years, as the Internet evolves, and as things become more obviously complex, there will have to be some changes."
John Enright, spokesperson for Elections Canada, said any changes made will not come from his agency.
"Parliament has the authority, the sole authority, to make laws and to amend existing legislation," he told CP24.com.
The question of whether the law is antiquated, Enright said, ignores the issue of the law itself.
"We have to administer the legislation as it's laid out in front of us, not unlike the traffic officer who has to enforce the speed limit," he said. "He's not the one that's going to make the decision on that speed limit, much like Elections Canada is not the authority to amend the legislation."
Those found to have violated the law face a maximum penalty of up to $25,000, Enright said.
Or, put another way, $178 per character.
There has also been some confusion, Enright added, regarding the role Elections Canada will play come Monday evening.
"Let's be clear: We're not monitoring," he said. "It's not our role. So nobody is going to be out there monitoring any form of transmission on election night, and least of which is trying to herd the cats that would be social media."
So what does Barefoot hope to see on his site Monday night?
"I am honestly ambivalent if anybody actually tweets the results," he says. "I'd just rather have a conversation around the topic and highlight how out of date Section 329 is."