Social Media and Democracy: Challenges for Election Law and Administration in Canada

Abstract

This article considers the challenges posed by social media for election law and administration in the Canadian context, particularly in relation to political advertising. I argue that the widespread use of social media by voters, political parties, and interest groups requires policy responses in order to promote the effectiveness of election administration and to further its underlying values. I use the term “social media” primarily in relation to Facebook and Twitter. Social media is already an important component of politics in Canada, including for political advertising. Three of the basic tools evident in Canadian election law include: (1) transparency/disclosure rules, (2) restrictions on spending, and (3) enforcement measures. The emergence of social media has challenged the capacity of each of these pillars of the legal regime to further their intended goals or the underlying values that motivated their introduction. The existing legal rules that regulate electoral activity off-line appear to be largely inadequate for a world in which social media is an important part of political communication and advertising. Either they do not apply to online politics or, if they do, the law has been under-enforced or exposed as out of date. Compounding these problems has been a series of decisions by Elections Canada to narrowly interpret its authority to regulate online politics, so as to leave large gaps in regulatory oversight of social media. In response, I propose several changes to the Canadian legal regime. They aim to promote effective election administration consistent with the values that inform the legislation. These proposals include enhanced disclosure rules for political advertising on social media, a separate social media spending limit for political parties and interest groups, and enhanced regulation of social media platforms, including by treating them as “broadcasters” for specific purposes under the Elections Act.