A British Columbia judge has upheld a law that requires anyone engaged in political advertising during a provincial election campaign to register, even when little or no money is involved, after concluding the law represents a reasonable infringement on free speech rights.
The B.C. Freedom of Information and Privacy Association filed a constitutional challenge of a section of the province’s Election Act, which requires people or groups to register with Elections BC before participating in a wide range of activities considered to be third-party advertising.
The association argued the law violates the charter because it applies regardless of how much money is spent, which the group says discourages smaller voices that may not have the means or the wherewithal to navigate the registration process.
The group argued the registration rules should only apply to advertising that costs $500 or more.
A B.C. Supreme Court judge agreed the law impedes political speech, but the judge said those effects were offset by the benefits of ensuring transparent elections.
“It is plain that the requirement to register ... would have the effect of restricting spontaneous or unplanned election advertising, which, like other forms of political expression, enriches political discourse,” wrote Judge Bruce Cohen.
“The salutary effects of the impugned measure outweigh the deleterious effects,” Cohen continued. “The salutary effect of [the law] is that it ... increases the transparency, openness and accountability of B.C.’s electoral process and promotes an informed electorate.”
B.C.’s current restrictions on third-party advertising in election and by-election campaigns were introduced in 1995, though they have been revised several times since.
The Election Act requires any person or group that intends to advertise during an election campaign to first register with Elections BC.
The law broadly defines election advertising as any “message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated.”
There are several exemptions, such as private communication or editorial content in a legitimate news outlet.
The B.C. Freedom of Information and Privacy Association noted such requirements in other jurisdictions don’t apply to small advertisers, with the threshold in most provinces and at the federal level set at $500.
The association’s executive director, Vincent Gogolek, said even though election finance rules were intended to prevent large amounts of money from influencing politics, B.C.’s rules actually make it more difficult for people without money to engage in the political system.
He said that under the law, something as simple as a Twitter account or a community newsletter could require registration.
“The whole rationale is that we don’t want big spenders to drown out everybody else and take over the electoral process,” Gogolek said in an interview Monday.
“If you’re spending no money, you’re not using your vast financial resources to drown out other voices or do any of the various evils that people who are putting forward these restrictions are saying they are designed to combat.”
Gogolek said his group is considering whether to appeal.
Attorney General Suzanne Anton was travelling and unavailable for comment.
A spokesperson for Elections BC couldn’t be reached.
The province’s attempts to reign in third-party election advertising have faced court challenges before.
In 2009, a B.C. Supreme Court judge struck down another provision in the law that said restrictions on third-party advertising also applied for 60 days before the start of the campaign. The ruling was upheld by the B.C. Court of Appeal.
The province responded with revisions that included reducing the pre-campaign period to 40 days, but the B.C. Court of Appeal concluded that, too, was unconstitutional.
At the time, the province’s limits on third-party advertising were commonly referred to in the media as a “gag law.”
Gogolek said the third-party advertising restrictions apply regardless of whether a person or group even intends to weigh in on an election campaign.
He pointed to a case from two years ago, when the B.C. Government and Service Employees’ Union was fined $3.2-million for violating campaign expense laws during a pair of by-elections.
The union was in the middle of a province-wide publicity campaign related to contract negotiations when two by-elections were called in the Vancouver area. The advertising campaign had been planned in advance and wasn’t connected to the by-elections, the union said.
The union didn’t pull the ads until three days into the by-election campaign, which the union blamed on an administrative error.
A B.C. Supreme Court judge subsequently overturned the fine.