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Summary:

Anyone who posts early results during Monday’s federal election in Canada could be fined $25,000 or sentenced to five years in prison, according to an ancient provision in the country’s Election Act — but some Twitter users have said they will defy the ban anyway.

Updated. We know that TV networks black out sporting events, but can you black out an entire election? In Canada you can — or at least the government there is trying to do that, for the national election on Monday. According to an ancient provision in the country’s Election Act, the results of the polls can’t be reported in any way until all of the polls across the entire nation are closed. That even extends to posting or re-posting results on blogs, Twitter and Facebook. If this strikes you as ridiculous and/or unachievable, then you know something Canadian officials are trying to ignore: information technology has moved far beyond the law’s ability to deter it.

Coincidentally, we’ve just had a powerful lesson in how news of all kinds is disseminated now, with the death Sunday night of Al Qaeda leader Osama bin Laden in a U.S. military strike in Pakistan. Within minutes of the announcement that President Barack Obama would be making an address to the American public, hundreds of people were retweeting the fact that bin Laden had been killed — and it wasn’t just a rumor, but a reliable report from the former chief of staff to Secretary of Defense Donald Rumsfeld. By the time it was confirmed by The New York Times and CNN, it seemed almost anti-climactic. That is what news is like now, as Emily Bell at the Columbia Journalism School notes.

The reality is that before social media came along, it was relatively easy to control the flow of information — about election results or pretty much anything else — because (in Canada at least) there were only a few major TV networks and a few major news entities. Tell them not to report something, and they would obey. Problem solved! But the tens of millions of people using Twitter and Facebook aren’t likely to bow to those kinds of constraints quite so easily, if they even know about them at all. Many of them may not even be located in Canada, and are therefore beyond the reach of the law (full disclosure: I am Canadian).

Some Twitter users have said they plan to defy the ban. There’s even a website called Tweet the Results, which plans to aggregate any tweets that use the hashtag #tweettheresults — regardless of whether those tweets contain early poll information or not. The site, created by social-media consultants Alexandra Samuel and Darren Barefoot, says that as far as it is concerned “We are not publishing the results ourselves, we’re just collecting what others have said.” It remains to be seen what Elections Canada thinks of this behavior.

Update: Tweet The Results has taken down the page where it was aggregating tweets, and replaced it with a notice that says it did so “rather than face a potential fine or protracted legal battle.” It also says:

We never imagined a day when Canadians would have to use a foreign website to participate in a conversation about our own country. We never imagined that we, Canadian citizens, would potentially face legal penalties for our role in supporting an online conversation.

The Canada Election Act provision in question has been around since 1938, when state-of-the-art communications technology consisted of the telephone, the telegraph and the carrier pigeon. But it’s not just some dusty sub-clause no one pays any attention to: in 2000, a blogger was charged with an offense for reporting early results on his blog in the Maritimes (the Atlantic time zone) before the polls had closed in the Pacific time zone, and fined $1,000. The case was fought all the way to the Supreme Court of Canada in 2007, at which point the blogger lost in a split decision (the clause in question actually provides for maximum fines of up to $25,000 and up to five years in prison).

Elections Canada, the department in charge of running the actual polls, has taken pains to warn bloggers and anyone using Twitter and Facebook that they could be liable for these penalties, even if all they do is re-tweet someone else who mentions the early poll results.

And how will they enforce this? Has Elections Canada set up a NASA-style command center with hawk-eyed operatives scanning dozens of screens and filtering the social media-sphere for illicit conversations? Well, no. The department says that it will be relying on complaints from the public in order to pursue any legal actions. But it does plan to pursue them. Meanwhile, the law is in the process of being challenged by several media outlets in Canada, and a number of experts have testified about how ludicrous it is — including law professor Michael Geist, whose affidavit to the court is here (PDF link).

Eventually, one hopes, the law will either be removed or simply never be enforced — like the one that requires every British male over the age of 14 to engage in two hours of long-bow practice every day.

Thumbnail photo courtesy of Flickr user Jennifer Moo

  1. Good piece, Mathew. Between this, our insanely high cell phone bills and the throttled Internet connections, it’s enough to make a connected Canadian feel angry/embarrassed.

    One thing we’ve noticed in our reporting about the blackout law is that some of the larger media orgs in the country are turning off comments on their sites between, say, now and when all polls are closed at 10 pm Eastern. This will just drive folks elsewhere to find and share early results, which will make the law even tougher to enforce. I’m really interested to see what develops over the next few hours.

    FYI we did an explainer about the law and related issues here:
    http://vancouver.openfile.ca/blog/topics/election-file/2011/explainer-elections-act-and-social-media-set-election-night-clash

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    1. Thanks, Craig. Will definitely be interesting to watch.

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  2. It is not an outdated law; it was put in place for a valid reason. Voting should be unbias and fair; knowing the results in the east before the west votes may sway the west. The reasonable thing would be to make the polls close at the same time regardless of time zones.
    At least they got rid of the law that prohibited drinking on election day. They finally recognized that with or without booze lack of common sense can prevail.

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    1. I’m pleased there are some voices of reason on here.

      Many people vote tactically and don’t have any party alignment, so may well change their vote (or decision to vote at all) if they find out one or other party is in the lead.

      I have no doubt that if someone knows the results and is determined to share them then they will in this information age, but such information will skew the results and is therefore rather undemocratic. Retweeters will not be fined in all likelihood, but those leaking the information in the first instance should be if this happens.

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  3. They can’t controll all your connections, just use a proxy to post in blog or facebook and they can’t track the information

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  4. While I agree that this part of the Canada Elections Act is archaic and should be repealed, any and all anger on this issue should be directed at our parliamentarians, who have spent too much time with petty bickering to make this and other common sense updates to the law (the ban on single event sports betting also comes to mind).

    Elections Canada is just trying to enforce the law as it is written. They may look like jackasses in doing so, but that was the mandate Parliament gave them.

    We are not talking about longbows, we are talking about a law meant to safeguard the integrity of our elections. I would agree that tweeting the results presents little danger to that integrity. Nevertheless, it would actually disturb me if the Chief Electoral Officer decided on his or her own initiative that he or she was going to selectively enforce the Canada Elections Act, no matter how well intended the gesture.

    When this election is over, write to your newly-elected MP and tell him to stop the stupid game playing of the last seven years and get to work, starting with much needed updates to our election and gambling laws.

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  5. Sorry but what’s wrong with banning people from posting results that can influence votes in other parts of the country where voting is still happening? Or what part of “different timezones in the same country” don’t you get?

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  6. The problem is this: that faux spontaneous tweets will be used by the federal parties to manipulate the vote in the West. If the lefties and centrists in Alberta (both of them) and BC think the Tories have a majority, they’ll stay home rather than vote. I’ve worked as a web strategist in federal campaigns, and this IS happening, be sure of it. You will probably be able to google a word-string and find ten people “spontaneously” tweeting the exact same words without rt-ing.

    The only way around this that I can see (I was also a polling clerk in the last two elections) is to open and close the polls at the exact same real time all across the country. Yes, that means a long day for poll clerks. But it means the East cannot push the West around, and that’s only right and just.

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    1. I wouldn’t be surprised if that was the case, but I find it hard to believe that those kinds of tactics would have any kind of real effect on the outcome of the election.

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  7. Hey – how come you;re in favour of free speech but didn’t post my earlier comment?

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  8. indiaromeo Monday, May 2, 2011

    Keeping the ballot boxes sealed and shooting the jerks taking exit poles would solve the problem.

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  9. Vincent Clement Monday, May 2, 2011

    Or Election’s Canada can simply not report poll results until the last poll closes out west. Easy peasy.

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  10. Chris Howard Tuesday, May 3, 2011

    This mockery of the political system is an extension of the horrific lack of morals today. While the social media has been a godsend in disasters and tragedies it is just a toy in cases like this. The small group of ‘small-minded’ individuals out there that just have to win or have to find the loop-hole soak this technology up. While the Canadian form of Democracy is not the purest form it is still democracy. It has allowed all Canadians (including this tiny group) the freedom to express themselves. By snubbing this privilege to vote (and make a difference) and turn it into a personal soap box they are showing the ultimate in disrespect. Having the freedom to do something is in itself power. Misusing it for personal gain or satisfaction is selfish and arrogant. I am certain this small group of self-centered, self-righteous narcissists would have gladly twitted and texted the hiding spot of Anne Frank had the technology been available in World War II. Guys…take a break! If you have nothing better to do than move your thumbs continuously on a tiny keyboard then do something good. Find a cure for something…save an endangered animal but quit being such a****les with grown up issues.

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