Political Ads in Canada — New Registry Requirements

On October 21, 2019, Canada is scheduled to have a federal election. As Canadians last went to the polls in 2015, before all the turmoil of foreign interference in the 2016 US election, this will be a major test for how Canada’s new Registry Requirements for Political Ads on Online Platforms (Registry) perform.

Registry requirements include displaying an electronic copy of the ad, as well as the name of the person who authorized the ad. This material should be easily available to the public via a visible link from the time the ad first appears until two years after the election. Furthermore, the record of the ad material must be kept for an additional five years.

The Registry, along with rules prohibiting foreign entities or individuals from purchasing regulated ads during the election period, are a response to cyber threat activity undertaken by foreign adversaries to interfere in democratic processes. One of Canada’s key security and intelligence organizations, the Communications Security Establishment, issued a 2019 threat assessment that concludes “it is very likely that Canadian voters will encounter foreign cyber interference ahead of, and during, the 2019 general election.”

Online political ads promoting or opposing a party or a candidate, as well as ads that take a position on anything that is or may become an issue, are covered by the Registry. However, private messages (such as email), user-generated or editorial content, and content on political entities’ own sites or on free websites are exempt.

Smaller online platforms are also exempt from the rules:

• English platforms with fewer than 3 million unique visitors in Canada a month
• French platforms with fewer than 1 million unique visitors in Canada a month
• Other language platforms with fewer than 100,000 unique visitors in Canada a month

Canadian online platforms prepare

For larger online platforms, it’s imperative to either implement an effective Registry or forego the ad revenue that will come from a heated election cycle. Google chose the latter and will not accept political ads; Colin McKay, Google Canada’s head of public policy and government relations, stated, “we’ve come to the decision that the best way for Google to comply with the Elections Act in the 2019 election cycle is actually to stop accepting elections ads as defined in the legislation.” It’s important to note that, regardless of an internal policy, if any political ads do appear inadvertently, companies must still comply with the law by including them in the Registry.

Facebook Canada is using their Ad Library to help comply with Registry requirements; the page states that “the Library contains data on every active and inactive ad about social issues, elections or politics that’s run since June 2019. We’ll keep each of these ads in the Library for seven years.” According to a report in The Globe and Mail, “the company says it will require advertisers to confirm their identities before they can put election-related ads on Facebook or Instagram.”

Twitter Canada has taken a mixed approach, prohibiting partisan and political ads in the period leading up to the election. However, once the writ has officially dropped and the election period begins, they “will allow regulated political advertising including issue advocacy ads, which will be published in our Ads Transparency Center in compliance with Canadian law.”

Political ad policies around the world

Of course, Canada is not the only country facing the challenge of foreign cyber interference in the democratic process. In the U.S., the Honest Ads Act was proposed in 2017 to prohibit the purchase of political advertising by foreign nationals and reveal the true source of funding for political ads. Although the proposal never gained significant traction, it was reintroduced in May, but still faces an uphill battle to become law. On another track, the Federal Election Commission is proposing rules that would require disclosure about who is paying for political ads.

While there is no legal requirement to do so, some online platforms have enabled transparency measures into the ads that are running on their site. Both Facebook’s Ad Library and Twitter’s Ad Transparency Center are available in the U.S. Google’s U.S. Transparency Report is designed “to provide greater transparency in political advertising on Google, YouTube, and partner properties. This report includes information about spending on ads that feature a current elected federal officeholder or candidate for the US House of Representatives, US Senate, President, or Vice President.”

In the EU, the EU Code of Practice on Disinformation offers guidance on how “to improve the scrutiny of ad placements, ensure transparency of political and issue-based advertising and to tackle fake accounts and malicious use of bots.” While the Code of Practice is voluntary, the EU is keeping close tabs on the situation and “should the results prove unsatisfactory, the Commission may propose further actions, including actions of a regulatory nature.”

Responsible political advertising

Beyond legal requirements, online platforms should carefully consider which advertisers and ads they accept, especially when it comes to politics. Being associated with foreign cyber interference can’t be good for a brand and, if unchecked, might lead to restrictions or other undesirable outcomes.

To that end, creating policies and procedures that increase transparency and help prevent foreign influence is a smart strategy, both for business reasons and for good corporate citizenship.

Requiring advertiser verification is one protection that online platforms can perform to reduce the risk of bad actors using their system to game elections. For example, Google requires verification for advertisers who want to run election ads or use political affiliation in personalized advertising in the United States. Similar rules apply to the EU and India.

Facebook currently requires advertiser verification in these countries:

• Brazil
• Canada
• EU
• India
• Israel
• Ukraine
• UK
• U.S.

Twitter has a certification policy for political content, which consists of political campaigning and issue advocacy advertising. Currently, the certification process is only for the U.S., but they had processes for Australia, India and EU Parliamentary elections, which are now closed.

Additional enhanced due diligence procedures, beyond verification, help online platforms understand who is ultimately behind the company purchasing the advertisement. Similar to procedures financial companies use to determine the ultimate beneficial owner of a company, these due diligence procedures check the ownership and management control of a company and then run identity verification checks on those individuals

Performing verification and due diligence on political advertisers helps protect online platforms from false and misleading ads, foreign influence and other problematic activities. With politics being so divisive, online platforms would be wise to stay above the fray and ensure that they know who they are accepting advertising funds from.