Regulating Misinformation in Canadian Elections – Is it Possible?

Madeleine Robert- April 5th, 2023

In recent years, non-partisan Canadian election officials have begun expressing concerns regarding the impacts of misinformation on elections, namely the Chief Electoral Officer, Stéphane Perrault. In a report to the House of Commons regarding the 2019 and 2021 elections, Perrault recommended amending the Canada Elections Act to ensure that misinformation cannot undermine the legitimacy of Canadian elections (Perrault, 2022, s.4.1). While many concerns have been raised about misinformation, there is currently a lack of effective solutions implemented to dispel the harmful impacts of the spread of election misinformation online. This paper will argue that regulation efforts can be developed to effectively combat the spread of misinformation in Canadian elections. Misinformation entails the spread of false or inaccurate information that is presented as factual information. A misinformed person bases their 'factual' beliefs and conception of the truth upon false information (Jerit & Zhao, 2020, p.78). A recent report by The Media Ecosystem Observatory found that while widespread misinformation was identified during the 2021 election, the misinformation had minimal impacts overall (Bridgman et. al., 2022, p.3). Most of the identified misinformation pertained to COVID-19 and pushback against covid regulations, and election fraud, a topic popularized after the 2020 American election. The most concerning finding from this report was "an emerging set of Canadians who are deeply distrustful of Canadian democratic institutions" (Bridgman et. al., 2022, p.4-5).

Social media platforms are largely responsible for regulating the actions and posts of their users, usually through an established code of conduct. The most popular social media platforms, such as Twitter, Facebook, and Instagram, exist as non-governmental corporate entities. It is important to clarify that while social media platforms regulate the content on their websites, they are not required to regulate on behalf of the government. For this reason, statements made on social media platforms are not protected by the right to freedom of expression.  As non-governmental entities, social media platforms can regulate in any way they see fit and are not accountable to anybody but their users and shareholders. Despite this, efforts to appease governments, specifically the United States government, have been made by popular social media platforms in recent years. A congressional hearing was held in 2021 by the Members of the House Subcommittee on Antitrust, Commercial and Administrative law to interrogate CEO's of large media companies (Rosalsky, 2020). Since the hearing, further efforts were made by these platforms to combat COVID-19 misinformation, as Facebook and Twitter both engaged in "adding warning labels to content considered as false or misleading" (Niemiec, 2020, p.2). In seeking an effective and realistic solution to the spread of election misinformation in Canada, this paper will begin by considering the solution proposed by Chief Electoral Officer, Stéphane Perrault, to amend the Canada Elections Act. In his official report to the House of Commons, Perrault recommends "amending the Act to prohibit a person or entity... from knowingly making false statements about the voting process... in order to disrupt the conduct of the election or to undermine the legitimacy of the election or its results" (Perrault, 2022, s.4.1.1). In practice, bringing this amendment to fruition may prove to be exceedingly difficult. For one, the freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms explicitly protects "the expression of both truths and falsehoods", which means that spreading misinformation is constitutionally protected (Government of Canada, 2022). In order to override this protection, lawmakers would have to invoke section 1 of the Charter which allows the prescription of reasonable limitations on Charter rights, if those limitations can be justified in a free and democratic society. This process formally involves a decision made by the courts to determine if an infringement of a Charter right can be considered justifiable (Walker, 2018, p.3). Thus, it would be up to the courts to determine the validity of an amendment to the Canada Elections Act that intends on prohibiting disinformation. 

Government regulation of social media platforms in the manner recommended by Perrault could also prove to be significantly difficult due to the privatized nature of social media companies. As previously discussed, regulation procedures on social media platforms usually do not entail due process. If the government got officially involved in regulatory practices, there is a chance that platform regulation would be subject to the Charter-protected right to freedom of expression and an unjustified post-removal or user-ban could result in a violation of the Charter. Overall, it seems as though it would be an inconceivable task to successfully pass the amendment to the Canada Elections Act and to regulate in a manner that adheres to Charter protections.

While the Canadian government may not seek to impose direct regulations upon social media platforms through legal means, it is still possible to influence companies to act in the
government's interest. Political scientist Emma Ricknell explains that "while governments may not immediately threaten a social media platform for allowing fake news, governments can persuade and in other ways...if profit is more stable by cooperating with governments, measures might be taken to block users or remove content " (Ricknell, 2020, p.112). While no hearings like the aforementioned congressional hearing regarding misinformation have been held in Canada, the Elections Canada Commissioner, Yves Côté, told CBC that he "has negotiated agreements with companies like Twitter, Google and Facebook that help to streamline the process of obtaining information when his office has to investigate a complaint" (Thompson, 2022). The agreements made between Côté and these companies indicate a possibility that they would be willing to negotiate further with Elections Canada regarding the regulation of dis- and misinformation.

This paper has analyzed the implications and effects of misinformation in Canadian elections and has led to the conclusion that Stéphane Perrault's recommendation to amend the Canada Elections Act is largely unfeasible. Perhaps more Elections Canada resources should be allocated to building a stronger anti-misinformation strategy, with a focus on working alongside social media platforms to build stronger regulation measures. 

Bibliography

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