Sunday, May 15, 2011

Ban on Twitter, Facebook election-night posts draconian

Ban on Twitter, Facebook election-night posts draconian

by Paula Simons,
April 20th 2011

Average Canadians and media outlets who post poll results from the country's East Coast before polls close in B.C. could face fines for "premature transmission" of Elections Canada information.  

EDMONTON — Imagine living in a country where the government made it a crime to report on election results, where the state actually imposed a nationwide media blackout to prevent people at one end of the country from knowing how, or whether, people at the other end were voting.

Imagine living in a country where it was illegal for ordinary citizens living in Newfoundland or New Brunswick to post comments about election results on their personal Facebook walls before the polls had closed on Vancouver Island.

Imagine living in a country where you could face a maximum $25,000 fine, or up to five years in prison, for "tweeting" about election results in your region on Twitter without government permission.

It shouldn't be hard. You already live there.

Back in 1938, when radio was king, Canada's election law was amended to include a ban on the "premature transmission" of electoral results across time zones. The idea was to prevent radio broadcasts of election results in Eastern Canada from influencing voter behaviour in the West.

The law, frankly, was always patronizing and paternalistic. There has never been any evidence that voting patterns in the West were, or would be, influenced by results from the East. Even if they were, why should the government deny voters in the West the opportunity to cast their ballots in the most informed way possible?

In 1938 and even 1988, the ban was reasonably enforceable. There were only a handful of national TV and radio broadcasters, and they all followed the law. Newspapers, which couldn't even publish their print editions until the next day, followed the law, too, as a matter of course.

This, though, is 2011, a digital universe in which media consumers expect TV channels and newspaper websites to provide them with live, breaking news in real time. It's a social media universe in which ordinary Canadians are now passionately engaged in talking about politics with people across the country via Twitter and Facebook, where online political and social communities transcend geography.

Yet Section 329 of the Canada Elections Act still prohibits transmitting the results of the vote in any electoral district to the public in another electoral district before the polling stations close in that other electoral district.

That means on May 2, it will be illegal for Postmedia News — or the CBC or Radio-Canada or the Globe and Mail or the National Post or any other national media outlet — to maintain a live website with up-to-date results. At least until after the polls close in B.C.

It will also be illegal for a regional newspaper or broadcaster in Atlantic Canada to put up live web results for their local audience — because then we backwoods westerners might have the temerity to sneak a peak.

It will also be illegal for any citizen, journalist or not, to tweet or blog or post something on a Facebook wall about the election results, until all the polls are shut.

Ordinary citizens aren't immune. In 2000, Elections Canada brought charges against a Vancouver blogger and software designer named Paul Bryan after he dared to publish election results from Atlantic Canada on his small-audience blog. Bryan was fined $1,000. He fought the case all the way to the Supreme Court on constitutional grounds, with major media outlets from across the country joining his battle. It did no good. In 2007, by a vote of 5-4, the court upheld Bryan's conviction, and Section 329.

The four minority judges were passionate in their dissent.

Justice Rosalie Abella, writing for her dissenting colleagues, put it this way: "There is only speculative and unpersuasive evidence to support the government's claim that the information imbalance is of sufficient harm to voter behaviour or perceptions of electoral unfairness that it outweighs any damage done to a fundamental and constitutionally protected right."

The law is even more absurd today, when our country is in the middle of an interactive social media revolution, and when more and more readers get their news not from hard copy "newspapers" but from 24-hour live news sites.

You only have to look back to 2008, when we had our last federal election, to grasp how remarkably our media ecosystem has altered in just 2 1/2 years. Section 329 has been rendered obsolete by new forms of mass communication, forms of media that could hardly have been imagined in 1938.

Realistically, Elections Canada cannot possibly enforce a nationwide ban on premature tweeting or blogging or Facebooking of election results. It's the equivalent of King Canute commanding the sea to go back.

Nonetheless, John Enright, who speaks for Elections Canada, says his agency has no choice but to administer the law as written. Citizens are allowed to phone or text friends, or send private e-mails. But posting to a Facebook wall, to a webpage or to Twitter will be considered a violation.

"The legislation is still on the books, so our role as Elections Canada is to administer the legislation that is before us," says Enright. "If there's a breach of the law, Elections Canada is not going to discriminate between the Mothercorp and Joe Smith down the street."

You have to sympathize, at least a bit, with Elections Canada. Staff there have been given an impossible, ridiculous assignment.

The law may be ridiculous, but Elections Canada bureaucrats didn't write it — and the Harper government didn't fix it, after the 2007 Supreme Court ruling.

Ironically, a decade ago, when blogger Paul Bryan was charged with breaching the act, the National Citizens Coalition was firmly on his side.

"These jackasses at Elections Canada are out of control," said the NCC president, one Stephen Harper, at the time. "The government's law is outdated and just plain wrong."

Harper was right then. Now, his own government's law is even more outdated.

Last week, the CBC and CTV went to court to seek a declaration that Section 329 was unconstitutional, but the court declined to hear their arguments before May 2.

We can only hope that this election will finally prove to the courts that such a news blackout is not only a condescending relic of the 1930s that treats voters like sheep, but also an unenforceable law that criminalizes routine social media conversation and denies Canadians the right to the kind of in-depth, interactive, online news reporting they have come to expect, and undoubtedly deserve.

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