Campbell Government moves to Regulate the Internet?

March 31, 2005

Campbell Government moves to Regulate the Internet?

Elections BC promptly replied to my letter of March 30th and has said that the Campbell government is responsible for the regulations that it merely enforces. A pdf copy of the Elections BC letter can be viewed by clicking here (888 Kb). It is hard to say whether attempts to force selected users of the Internet to register with Elections BC is the result of an out-of-control bureaucracy at Elections BC or the consequence of intentional government policy. Read my letter, copied below, and the letter from Elections BC and judge for yourself. It is clear that the Campbell government could fix the problem with a simple cabinet order, Order in Council, that clarified the regulations.

March 30, 2005

Ms. N. Nola Western
Director, Electoral Finance
Elections BC
PO Box 9275 Stn Prov Govt by fax only to 250 387-3578
Victoria BC V8W 9J6

Dear Ms. Western:

Thank you for your prompt and detailed response to my letter of March 29th to the Chief Electoral Officer. Unfortunately, your response indicates that there are substantial differences of opinion between us. I appreciate your statement that my website is considered one of political commentary; however, that may only mean that someone else may have to take a test case forward.

You wrote that "The Chief Electoral Office did not issue the Referendum Regulation. It is a Cabinet regulation that reflects public policy as determined by Cabinet." Thank you for focusing responsibility where is correctly lies. I sat on the original cabinet committee that drafted the Election Act; I forget how many hundreds of hours I spent in the offices of Elections BC on that task. I know that the intent of the Act was not to restrict freedom of speech on the Internet; nevertheless, if it is the policy of the current government to regulate use of the Internet, it should be held to account.

As you noted, nothing in BC regulations or the Election Act refers to the Internet or defines advertising. That is in contrast to Section 319 of the Canada Election Act which specifically excludes "the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views." Your letter mentioned the 2004 Supreme Court of Canada decision in which Mr. Harper challenged provisions of the Canada Election Act that applied to third party advertising. It is ironic that with Bill 59 (2002) the Campbell government repealed Section 229 of the BC Election Act and replaced it with an innocuous clause that eliminated maximums on third party advertisements, which according to the decision you cited are constitutional. We will see the consequence of that decision in the weeks before May 17th. While the Supreme Court decision you cited affirms the power of parliament to restrict third party election advertisements, it is silent on the use of the Internet because of Section 319 of the Act and it is not helpful on the question of registration, Section 353 of the Canada Election Act because that Section does not require registration unless someone spends $500 or more.

The point of contention here is one of whether any user of the Internet who spends less than $500 needs to register with Elections BC. I contend that Elections BC has no legal authority to require such registration. I understand your position to be that such registration is in selected circumstances a matter of government policy. There is no disagreement on the matter of filing of expenses for those that spend $500 or more, but requiring registration regardless of the amount spent is equivalent to saying that someone who stands on a soapbox and addresses a crowd in the park must first register with Elections BC. The Internet is today's soapbox and town plaza.

Sincerely,

David D. Schreck

cc: Joe Easingwood,
This letter and yours will be available on my website.

March 29, 2005

Letter to Chief Electoral Officer - Regulation of the Internet

By letter to the Chief Electoral Officer is copied below. For those interested in what is happening in the U.S. with regard to political use of the Internet, click on http://www.fec.gov/agenda/2005/mtgdoc05-16.pdf

March 29, 2005

Mr. Harry R. Neufeld
Chief Electoral Officer
PO Box 9275 Stn Prov Govt by fax only to 250 387-3578
Victoria BC V8W 9J6

Dear Mr. Neufeld:

Thank you for appearing on Joe Easingwood's show with me on CFAX this morning to discuss referendum and election advertising. The terms "referendum advertising" and "election advertising" are defined but the word "advertising" is not defined in except in Election BC's "Guide to Election Communications". It is not defined in the Act or in the regulations.

You made the point that registration is free and one need only file a financial report if the cost of advertising exceeds $500. Many people would feel that it is a fundamental violation of their Charter rights if they had to register with a government agency before they sent a letter to the editor, called a talk show or appeared in a TV interview. I am struck with the same sense of a fundamental wrong when I am told that I must register my website even though the cost of it is far below the disclosure limit. There must be hundreds of blogs and other types of websites that are used to exchange ideas and points of view on the referendum and election. Telling the publishers of those sites that it is free to register is not adequate. It leaves those who do not register, whether through ignorance or as an act of defiance, subject to prosecution, although no reasonable prosecutor would find it in the public interest to undertake such a prosecution. Rather than making Elections BC and the law look foolish with an unreasonable requirement, it would be far better to confine application of the "rules" to the original intent of closing loopholes in expense limits without interfering with freedom of speech.

I was very encouraged by the willingness you expressed on Easingwood's show to reconsider what may have been previous unfortunate interpretations of the Act and regulations. To the best of my knowledge the interpretations with respect to advertising have not been tested by the courts. That is understandable since real advertisers register and file while innocent publishers and debaters are protected by the standards Crown Council applies to the laying of charges. It would be far better if the intermediate step, of what may be seen as harassment by Elections BC, were eliminated, making review by Crown unnecessary.

Sincerely,

David D. Schreck

cc: Joe Easingwood,
A copy of this letter is posted to StrategicThoughts.com

March 27, 2005

No Free Speech on BC-STV

The heavy hand of government, disguised as the independent office of Elections BC, is once again reaching out to strangle free speech; a terse warning is published on the Elections BC website for anyone who may want to publicize their opinion regarding the Referendum on Electoral Reform. There are thousands of "blogs" on the Internet; many BC blogs will probably offer opinions on electoral reform (whether BC should adopt the bizarre Irish voting system). During the 2001 election campaign I received threatening letters from Elections BC which said that my website violated the Election Act on advertising; it looks like Elections BC and the Campbell government are up to old tricks.

Despite the fact that the BC Elections Act specifically exempts news and commentary from restrictions on election expenses, there appear to be indications that it will attempt to silence those who use the Internet to publish their thoughts. Section 180(5)(d) of the Election Act provides that the following is not an election expense: "publishing without charge news, an editorial, an interview, a column, a letter or a commentary in a bona fide periodical publication or a radio or television program"

At the time that was drafted, computers were 486s without the power to make the World Wide Web very useful; technology has come a long way in ten years, but the concept of freedom of speech hasn't changed. Nevertheless, on February 23, 2005 Order in Council 53/2005 was made . It defines "referendum advertising" as "advertising used during the referendum campaign period to promote or oppose, directly or indirectly, a specific response in voting in the referendum."

Elections BC also states that "advertising is any promotional materials, including, but not limited to leaflets, lawn signs, billboards, brochures, buttons, badges, newspapers, radio, television, newsletters, Web sites, and public address systems."

There appears to be a contradiction between Section 180 of the Election Act and the Electoral Reform Referendum. When is a website a "bona fide periodical publication" and when is it an election advertisement? The Electoral Reform Referendum Regulation provides for Division 11 of the Election Act to apply to the referendum; in particular, Section 239 provides that "Subject to subsection (2), an individual or organization who is not registered under this Division must not sponsor election advertising." Section 244(1) states: "Subject to subsection (3), if during a campaign period an individual or organization sponsors election advertising that has a total value of $500 or a higher amount established by regulation, the sponsor must file with the chief electoral officer an election advertising disclosure report in accordance with this section and section 245."

Most Internet blogs cost less than $40 a month to publish. Will the heavy hand of the Campbell government reach out to prosecute Internet blog publishers as "advertisers" or will bloggers be recognized as bona fide periodical publishers? The Campbell government may try to hide behind the independence of Elections BC, but no order in council, no regulation, is proclaimed except by an order of cabinet; in other words, the Campbell government is fully responsible for all aspects of the Electoral Reform Referendum Regulation. It is the responsibility of Premier Campbell and his Attorney General to say whether they will prosecute bloggers for expressing their freedom of speech on the Internet, or whether they will require websites to register under the Campbell government's oppressive legislation for fear of prosecution.

The referendum question that will be put before the voters is biased. With the wording: "Should British Columbia change to the BC-STV electoral system as recommended by the Citizens’ Assembly on Electoral Reform?”, the question encourages voters to express confidence in the Assembly even if they don't know anything about "BC-STV" The referendum question deserves serious debate, and a resounding vote of NO. Elections BC has no business violating basic Charter rights of free speech in its attempt to regulate participation in the referendum debate.