Dear Canada: Your Election Law Is No Match For Twitter

Updated. We know that TV networks black out sporting events, but can you black out an entire election? In Canada you can — or at least the government there is trying to do that, for the national election on Monday. According to an ancient provision in the country’s Election Act, the results of the polls can’t be reported in any way until all of the polls across the entire nation are closed. That even extends to posting or re-posting results on blogs, Twitter and Facebook. If this strikes you as ridiculous and/or unachievable, then you know something Canadian officials are trying to ignore: information technology has moved far beyond the law’s ability to deter it.

Coincidentally, we’ve just had a powerful lesson in how news of all kinds is disseminated now, with the death Sunday night of Al Qaeda leader Osama bin Laden in a U.S. military strike in Pakistan. Within minutes of the announcement that President Barack Obama would be making an address to the American public, hundreds of people were retweeting the fact that bin Laden had been killed — and it wasn’t just a rumor, but a reliable report from the former chief of staff to Secretary of Defense Donald Rumsfeld. By the time it was confirmed by The New York Times and CNN, it seemed almost anti-climactic. That is what news is like now, as Emily Bell at the Columbia Journalism School notes.

The reality is that before social media came along, it was relatively easy to control the flow of information — about election results or pretty much anything else — because (in Canada at least) there were only a few major TV networks and a few major news entities. Tell them not to report something, and they would obey. Problem solved! But the tens of millions of people using Twitter and Facebook aren’t likely to bow to those kinds of constraints quite so easily, if they even know about them at all. Many of them may not even be located in Canada, and are therefore beyond the reach of the law (full disclosure: I am Canadian).

Some Twitter users have said they plan to defy the ban. There’s even a website called Tweet the Results, which plans to aggregate any tweets that use the hashtag #tweettheresults — regardless of whether those tweets contain early poll information or not. The site, created by social-media consultants Alexandra Samuel and Darren Barefoot, says that as far as it is concerned “We are not publishing the results ourselves, we’re just collecting what others have said.” It remains to be seen what Elections Canada thinks of this behavior.

Update: Tweet The Results has taken down the page where it was aggregating tweets, and replaced it with a notice that says it did so “rather than face a potential fine or protracted legal battle.” It also says:

We never imagined a day when Canadians would have to use a foreign website to participate in a conversation about our own country. We never imagined that we, Canadian citizens, would potentially face legal penalties for our role in supporting an online conversation.

The Canada Election Act provision in question has been around since 1938, when state-of-the-art communications technology consisted of the telephone, the telegraph and the carrier pigeon. But it’s not just some dusty sub-clause no one pays any attention to: in 2000, a blogger was charged with an offense for reporting early results on his blog in the Maritimes (the Atlantic time zone) before the polls had closed in the Pacific time zone, and fined $1,000. The case was fought all the way to the Supreme Court of Canada in 2007, at which point the blogger lost in a split decision (the clause in question actually provides for maximum fines of up to $25,000 and up to five years in prison).

Elections Canada, the department in charge of running the actual polls, has taken pains to warn bloggers and anyone using Twitter and Facebook that they could be liable for these penalties, even if all they do is re-tweet someone else who mentions the early poll results.

And how will they enforce this? Has Elections Canada set up a NASA-style command center with hawk-eyed operatives scanning dozens of screens and filtering the social media-sphere for illicit conversations? Well, no. The department says that it will be relying on complaints from the public in order to pursue any legal actions. But it does plan to pursue them. Meanwhile, the law is in the process of being challenged by several media outlets in Canada, and a number of experts have testified about how ludicrous it is — including law professor Michael Geist, whose affidavit to the court is here (PDF link).

Eventually, one hopes, the law will either be removed or simply never be enforced — like the one that requires every British male over the age of 14 to engage in two hours of long-bow practice every day.

Thumbnail photo courtesy of Flickr user Jennifer Moo