MICHAEL GEIST
Thursday, November 23, 2000
The maxim that "information wants to be free" suggests, wrongly, that attempts to regulate content on the Internet are ultimately bound to fail. A free-for-all environment is particularly problematic in an electoral context, where Web sites may post false or misleading information that could influence voters.
While the Web can play an important role in the dissemination of official and legitimate information (the official Elections Canada site at http://www.elections.ca will supply customized, real-time election results on election night), the Internet can also be a source of dubious information.
Its borderless nature and the ease with which information can be transferred from one jurisdiction to another makes applying traditional laws to the Internet difficult at best.
Recent amendments to the Canada Elections Act specifically address this concern by requiring Web sites to disclose the methodology of the election opinion surveys they publish.
While off-line surveys must post information such as the name of the sponsor, the size and date of the poll, and the margin of error, the act includes two additional requirements for Web-based publishers.
On-line survey results must include the actual wording of the survey questions as well as instructions on how to obtain the written report of the results.
Information posted on election day is also addressed by the legislation. Exit polling and other advertising can have a major impact on voter turnout. Many observers fear that West Coast voters might not bother heading to the polling station if they already know the results tabulated from the East Coast.
Government concern over this issue has led to a ban on both election advertising and the publication of new opinion polls on election day.
The ban applies both off-line and on-line, with the Internet explicitly referenced in the legislation. Importantly, the one-day ban does not apply to unaltered survey results and election advertising posted on the Internet before election day.
The restrictions are controversial, with some people saying that this limit on free speech is unconstitutional. In fact, B.C. resident Paul Bryan claims that he plans to post election and polling results on his Web site on election day as soon as that information becomes available.
The Supreme Court considered this banning issue in 1998 when a group of media publishers challenged a restriction that prohibited the publication of survey results during the last three days of an election period. The court struck down that provision as an excessive restriction on free expression, leading to the recent amendment that whittles down the restriction to just election day.
The issue of the power of the Internet is not limited to polling data and the premature release of electoral results. Of more serious concern is the use of the Internet to sell or auction votes to the highest bidder. During the recent U.S. election, courts forced several Web sites to shut down after they were found to facilitate vote selling, which is a criminal offence.
The same trend has emerged in Canada. A site called the Edible Ballot (edibleballot.tao.ca/cgi/auction.cgi) is facilitating vote selling for the coming federal election. While there is nothing in the Elections Act specifically about vote selling, the legislation contains provisions that prohibit obstructing the electoral process.
However, shutting down a Web site during a short election campaign is not easy.
The domain names of some political sites have also become a source of concern. The owner of Canadianallianceparty.net was hit with a lawyer's letter demanding that the anti-Stockwell Day site be shut down. The site now features a disclaimer at the top.
Meantime, sites such as liberalpartyofcanada.com were deceiving visitors by forwarding them to the official Canadian Alliance party site. Now, the Web address leads you to http://www.identityrealtors.com, a domain warehouser.
Domain name dispute resolution might result in the transfer of these domains, but not before the election is over.
Although many people fear government regulation of Internet content, free speech must always be balanced with other freedoms cherished in a free and democratic society, such as the democratic process.
Encouraging voter participation by placing a modest limit on information dissemination or by shutting down vote-selling sites seems like a sensible compromise.
Michael Geist is a law professor at the University of Ottawa Law School, and director of e-commerce law at the law firm Goodman Phillips & Vineberg. He can be reached through his Web site, http://www.lawbytes.com, or by e-mail at mgeist@uottawa.ca.
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