The Supreme Court of Canada ruled in January 2006 that the media could not report election results until after all polling stations had closed. Internet sites, including web logs, were included in the ban.
Much of the debate about regulation of the Internet in elections centres on whether it can be considered part of the “media” as conventionally understood. Many argue that the decentralized character of the Internet makes it qualitatively different from traditional media such as newspapers and broadcasting. They say that it is more like a debate than a broadcast – the view taken by the growing number of political bloggers. However, for its 2006 general election, Canada’s Supreme Court took the opposite view.
The issue of results reporting is particularly acute in countries such as Canada that straddle several time zones. Polling stations are still open on the Western seaboard after counting is complete in the East.
In 2000, Paul Bryan, a blogger from British Columbia on the West Coast, deliberately broke the law, publishing results on his electionresultscanada.com website. This was an offence under section 329 of the Canada Elections Act, which states:
"No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district."
Bryan was charged and faced a maximum fine of $25,000. He challenged the constitutionality of this provision, arguing that it infringed the Canadian Charter of Rights and Freedoms. In February 2003, the Provincial Court of British Columbia ruled that while section 329 did limit the right to freedom of expression, it was demonstrably justified inn a free and democratic society. Bryan was subsequently convicted on violating the provision and fined $1,000.
In October 2003, the Supreme Court of British Columbia found that section 329 did indeed infringe the Charter of Rights and Freedoms. Bryan was acquitted on appeal. Elections Canada and the Attorney General were granted leave to appeal the decision, but the 2004 elections were held before the case could be heard. Elections Canada would not enforce section 329 in order to maintain the uniform application of the Act across the entire country. The media consequently reported the earlier results from the Eastern provinces as they were announced.
In May 2005, the British Columbia Court of Appeal reversed the decision of the Supreme Court and found that section 329 was constitutional. Although the Supreme Court of Canada granted Bryan leave to appeal, this had not been heard by the time the next general election was held in January 2006. Since section 329 was now back in force in British Columbia, Elections Canada announced that the provision would be enforced across the entire country.
A group of media organizations applied to the Supreme Court to suspend the ban, pending Bryan’s appeal, on the grounds that the impact of reporting the results would be minimal and should “not justify infringing the expression results of literally several millions of Canadians”. However, the Supreme Court ruled that the existing law would stay in place.
The main media organizations had no alternative but to abide by the law. So did most bloggers, but a number pointed out the potential problems:
"Blogging on election day is going to be a tricky thing. In this election, unlike the last one, Section 329 of the Canada Elections Act will be in effect, meaning it will be effectively against the law to blog about election results until 10:00 ET, since blogging is considered transmitting "to the public.""
Writing e-mail or instant messaging or for that matter talking on the phone about election results is fine, since those aren't public transmissions.
But what if you're blogging election results on your LiveJournal and protecting the posts so that only your LJ friends can read it? How big does your friends list have to be before it's considered transmitting to the public? [1]
The last comment highlights how laws fashioned for traditional media do not address the specific characteristics of new media. One of the other peculiar features of the Internet is its international character. Bloggers outside the country – expatriate Canadians and US bloggers – did post
[1] http://www.cbc.ca/canadavotes2006/analysiscommentary/blogreport.html, accessed 20 February 2015.]
