Just when I thought the situation with BC’s third party advertising rules couldn’t get any more ridiculous, this comes in from the “Are You Kidding Me?!” department:
According to The Tyee, a three page advertorial for the Canadian Coal Association “extolling the virtues of BC’s coal industry” in last week’s Globe and Mail has been deemed by Elections BC to not be third party election advertising.
For those who haven’t followed the third party election advertising issue and don’t realize at first glance why this is making my head explode, you can get a feel for how broad, confusing, and problematic the rules are here or here.
According to The Tyee story, Elections BC determined the 3-page spread — which looks like regular news content but is really one of those sneaky propaganda inserts — is not election advertising because the coal association apparently didn’t pay for the space. Setting aside the fact that this strains credulity,* I think Elections BC’s interpretation is plain wrong.
Section 228 of BC’s Election Act defines the value of election advertising as,
(a) the price paid for preparing and conducting the election advertising, or
(b) the market value of preparing and conducting the election advertising, if no price is paid or if the price paid is lower than the market value.
Section 229.1 further states,
The sponsor of election advertising is whichever of the following is applicable:
(a) the individual or organization who pays for the election advertising to be conducted;
(b) if the services of conducting the advertising are provided without charge as a contribution, the individual or organization to whom the services are provided as a contribution;
So it doesn’t matter whether the Canadian Coal Association paid for that 3-page spread or not. They received the services, and the fair market value of those services is what counts.
In the meantime, the election advertising rules are chilling many citizen-based groups and other small spenders engaged in public interest education and communication. These groups have difficulty interpreting the extremely broad and confusing definition of advertising, and many err on the side of caution in trying to comply with the rules. Charities also have to deal with the possibility that registering as an election advertiser could put their charitable status at risk. For more on this how plays out, see these recent stories in The Georgia Straight and The Tyee, or the study I co-authored documenting the impacts of the rules during the 2009 election.
To give you a sense of how perverse third party rules are in practice, here are a few scenarios to consider:
- A group of seniors in an assisted living facility feels their rents are being hiked unreasonably. They get together and create a flyer talking about the fact that BC’s Residential Tenancy Act doesn’t cover assisted living facilities. They distribute the flyer to other residents and their family members. Before they distribute the flyer, they are supposed to register as an advertising sponsor with Elections BC.
- An environmental NGO with an annual budget of $50,000 tweets the statement, “BC needs green jobs, not more fracking and LNG.” The NGO isn’t registered as an election advertising sponsor. They’ve just engaged in illegal advertising, the penalties for which can include fines and jail time.
- A registered charity that provides services to vulnerable children and youth wants to make sure the issue of child poverty gets some attention during the election campaign. It puts out word through its network that it needs some volunteers to help get the job done. A few people respond, and the volunteers donate their time creating and circulating some basic online resources about child poverty and what could be done about it by the next provincial government. The resources are posted on the organization’s website and Facebook page. Not only do these resources count as advertising, but the time these volunteers spend helping out counts as an election advertising expense. That’s because volunteer labour is not excluded from the definition of a third party election advertising expense in the Election Act (see above) — unlike the definition that applies to advertising by political parties and candidates, which does explicitly exclude volunteer labour. The charity is supposed to assign a market value to these volunteers’ time, and report it to Elections BC as money spent on advertising.
But hey, if you can convince a major national daily newspaper to front you a few pages of news-y content, you’re all clear. Who do I call at the Globe to get some of that free space anyways?
* As my friend Vince Gogolek over at FIPA pointed out, it’s not like the newspaper industry is doing so great these days. If the Globe did “give” the space to the Canadian Coal Association, I can only assume it was part of an arrangement to create coal industry-friendly content that would attract coal industry advertisers. Which it did.