Do efforts to protect Canada's electoral system from foreign interference go far enough?

Elections Canada polling station 2015. Photo: ishmael n. daro/Flickr

The federal government's efforts to address foreign interference in next year's federal election came into the spotlight recently after it was reported that the Minister of Democratic Institutions, Karina Gould, told the Senate's legal and constitutional affairs committee that it would be "virtually impossible" to prevent foreign interference in the upcoming election.

In response to the threat of foreign interference in the Canadian democratic process, the government has proposed a variety of amendments to the Canada Elections Act, through Bill C-76, the Elections Modernization Act. Bill C‑76 undoes many of the amendments passed by the Harper government through the Fair Elections Act (which were widely criticized as undemocratic at the time), and attempts to address foreign interference by prohibiting the use of funds from foreign entities for political advertising or election surveys and by amending the prohibition in the Canada Elections Act against making false statements about political candidates. Despite these efforts, the amendments, particularly around making false statements, do not go far enough in addressing the problem of "fake news" and the use of social media to spread it.

Bill C-76 in era of social media

Bill C‑76 was released in April of this year, just a month after it became public knowledge that Cambridge Analytica had collected personal data from millions of Facebook accounts, which was then used for targeted political advertising to those Facebook users with the goal of influencing elections in the U.S. and U.K. Bill C‑76 came a year after the Office of the Director of National Intelligence in the U.S. released a report detailing Russian interference in the 2016 U.S. presidential elections. It also came after the Canadian Communications Security Establishment released a report on cyber threats to Canada's democratic process, which identified the manipulation of "traditional and social media in order to influence political discussion and/or reduce trust in the democratic process" as a major threat to Canadian democracy.

More recently, the New York Times reported that Facebook executives knew about the extent of Russian activity on the social media platform -- in particular the use of false information spread through Facebook to influence  users during the 2016 U.S. Elections -- and that these executives took steps to conceal the extent of this interference from the public.

Bill C‑76 and addressing 'fake news'

In an attempt to address the issue of fake news, Bill C‑76 makes amendments to Section 91 of the Canada Elections Act, which prohibits making or publishing false statements of fact about the personal conduct of a candidate or prospective candidate, with the intention of influencing election results. This prohibition is amended by Bill C‑76 in the following ways:

1. It now prohibits entities, in addition to individuals, from false statements;

2. It expands the individuals protected by the clause to include not only candidates and prospective candidates, but also the leader of a political party or public figure associated with a political party (political figures);

3. It limits the kinds of false statements covered by the prohibition against false statements about a political figure committing an offence or being charged with an offence, or false statements about a political figure's citizenship, place of birth, education, professional qualifications or membership in a group or association;

4. The prohibition is only for the election period, which in Canada can be as little as 36 days; and

5. The prohibition applies no matter where the false statement is made or published.

These amendments make a superficial effort to address the role of social media platforms in publishing false statements, and certainly do not reflect the seriousness of the threat of foreign interference in our electoral process.

As the Office of the Commissioner of Canada Elections (CCE) points out, the existing prohibitions under the Canada Elections Act apply to false statements about criminality or moral turpitude (which would also include non‑criminal conduct that could be seen as contrary to justice, honesty, or good morals). The amendment does not cover false statements related to moral turpitude unless the allegations also related to criminal conduct. According to the CCE:

"This could result in a lessening of the protection offered by the [Canada Elections Act] as it has been interpreted by the courts over the years, at a time when "false news" is becoming a concern in many world democracies. This could result in serious allegations being made that have a serious effect on an election, without the Office being able to take any compliance or enforcement action."

The amendments also require that an entity publishing false statements actually intend to influence the election, meaning that if a platform such as Facebook provides an opportunity for false information to be published or is willfully blind to the fact that it is, but does not intend to influence the results of an election, its actions, or failure to act, would not be covered by the prohibition. While requiring intent to influence election results may make sense where individuals spread false statements, with entities, the intent requirement essentially alleviates entities from being accountable to the public when they provide platforms that allow individuals to spread these false statements.

By restricting the prohibition to only the election period, the amendment fails to address the nature of digital media and the fact that a false statement published prior to an election period does not disappear. Once published on the internet, false statements remain accessible and can very easily "go viral" or spread during or just prior to an election period. Despite this reality, false statements published prior to an election period would not be covered by the prohibition.

Finally, when setting out penalties, Bill C-76 glaringly omits any reference to entities being guilty of an office and subject to punishment -- it only refers to persons in the penalties. It's not clear how entities will actually be penalized for making or publishing false statements contrary to this prohibition.

Whether or not it is feasible to prevent foreign interference in our democratic process, the federal government has had plenty of time to create meaningful amendments to the Canada Elections Act  to address false information designed to undermine meaningful democratic participation and debate but has failed to do so. Ensuring that entities are liable for publishing false statements, whether or not they intend to influence election results, and broadening the application of the prohibition to cover more than just the election period would at least recognize that the threat to democracy is not just false statements themselves but the nature of the medium being used to spread them.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Photo: ishmael n. daro/Flickr

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