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Civil Litigation

Bill C-76 a poor solution to election tampering: Winkler

Recently enacted federal laws aimed at curbing the misuse of online platforms during elections do not address the real problem, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

Bill C-76 needs to be put into context,” says Winkler, principal and founder of Winkler Dispute Resolution. “The bill does not really relate to the type of election tampering that the media, government and public have been concerned with. It is wrong to think it will serve as a cure-all  to prevent undue influence in the electoral process.”

He says the legislation requires online platforms to keep a registry of all paid political and partisan ads they carry. Google has responded by “banning political advertising on its platforms ahead of the Canadian federal election "because of new ad transparency rules it says would be too challenging to comply with,” the Globe and Mail reports.

Even if the search engine company were to comply with the legislation, Winkler says that would not be a solution to the manipulation of our political system during elections, since the bill only focuses on paid online advertising, and ignores social media.

“Anyone intent on influencing an election won’t use paid advertising,” he says. “They will use social media, which is much more difficult to track. The kind of improper influence that Russia was said to have in the last U.S. election was mostly through social media, and that does not fall within the parameters of this legislation.”

Winkler says the Canada Elections Act already requires those who are engaged in political advertising to register. That includes political parties, associations, candidates and certain third parties comprised of individuals or groups.

“The kind of transparency that is being discussed, to some extent, already exists,” he says. “There is a means of accountability, as anyone who spends more than $500 has to register with Elections Canada.”

The new tracking requirements in Bill C-76 will assist the government in the enforcement of these registration obligations, Winkler says, as the federal government will be able to compare the reports of the online platforms to its own registration database, ensuring that everyone who has purchased political advertising is registered with Elections Canada.

“It seems that the whole purpose of this legislation is to assist the federal government in enforcing provisions that are already there,” he says.

Canada could look south of the border for another solution, Winkler says, explaining that when any person or group in the U.S. registers as a third party, they are given a registration number by the U.S. Federal Election Commission, which they must provide when they purchase advertising.

“If Canada implemented the same type of system, Google and Twitter and others could demand the registration number before processing the advertising order, ensuring that anyone who is advertising is registered,” he says.

If the government wanted to regulate and monitor social media platforms, that would “raise really tricky issues,” Winkler says.

“How do we limit or control what people say on Facebook or Twitter while respecting their right to free expression and speech?” he asks.

If anyone attempted to control or regulate what is said on these online platforms, that would be viewed as censorship, Winkler says.

“The question then becomes, who will be the censor?” he says. “Should a private business determine what content should or should not be on its site? Do we want the government to be the censor of what is communicated to the public through these platforms?”

Winkler says the solution starts with clearly identifying who is behind any social media post dealing with politics.

“Where there is political speech, we should demand that the maker of the speech be properly identified,” he says. “Let’s not permit anonymous speech, but require those who want to disseminate opinions to do so with their real identities.”

When people are publicly held accountable, “what they say will be more tempered and well considered,” Winkler says. “Freedom of expression should also come with accountability.”

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