Summary: In the week prior to the election, the media portrayed Politics Canada as the only website in Canada that would be defying a ban on polling information. An investigation revealed that most major sites also violated the ban, even though they knew about the ban, and said they would not. Mariner Systems Services Inc., operator of the Politics Canada website, has filed nine formal, written complaints with Elections Canada in an effort to debunk the myth that major media sites complied with the ban, and in order to secure the support of major media organizations to defeat the elections law.
Last week the mainstream media learned that our website, Politics Canada, contained polling information, and that the Politics Canada website would remain available to the public, intact, throughout the elections blackout period between midnight last Friday, and the official poll closings for the federal election, 8:30pm MDT June 2.
We did this because we considered the polling information ban to be an unreasonable restriction on freedom of speech, not just as applied to the media generally, but particularly as applied to websites.
Under Elections Canada's operating interpretation of the law there is no distinction between stories and polling information published in the past, present, or future. For newspapers, television, and radio, this interpretion is not especially onerous - they can simply write stories about other subjects during blackout periods.
But for website operators, this interpretation is onerous. Websites can and often do maintain thousands of stories going back in time to when the website was created, or even before. Any one of those historical stories could contain polling information. All of those that do, must be removed from a website in order to avoid violating federal election laws.
For many websites, we believe the only practical way to comply with this ban would be to shut down those websites completely. Only by shutting down a website can its operator be certain that polling information will not be available to voters. This is the equivalent to shutting down a radio station, television, or newspaper completely for three days, simply because viewers, listeners, or readers, have access to stories created sometime in the past, that refer to polling information.
We cannot believe that this was the intent of the law, nor we do believe this would be considered a "reasonable" limitation of free speech. So when we learned of the law in the few days prior to the blackout period we had to decide what to do with the Politics Canada website: redesign it, shut it down, or leave it up and fight it out in court. As you know, we chose the third option, and the Politics Canada website remained up, with polling information, throughout the blackout period.
But Politics Canada is far from the only website that contains polling information. In fact the contrary is true: there are many websites that provide polling information, often much more comprehensive polling information even than is found at Politics Canada.
Some of these sites are operated by smaller organizations such as ourselves. Others though, are operated by a number of the much larger organizations that make up the mainstream media. These are often major sites that can cost hundreds of thousands of dollars to construct and may contain hundreds or even thousands of news-related documents, a number of which will refer to polls.
It was our view that the polling ban was also onerous and unreasonable for operators of those websites, and we looked forward to seeing how they would respond to the polling information ban.
That mainstream media website operators were aware of the ban was apparent both from coverage of our situation in the radio, television, and newspapers last week, and the content of the websites themselves. In most cases media websites contained some type of disclaimer indicating that a ban was in effect, and that stories with polling information had been removed for the duration of the blackout period. The Canadian Broadcasting Corporation's election website even pulled the entire audio recordings of six news conferences in order to avoid the publication of polling information.
But in almost every major media site we visited, we found that the effort to remove stories with polling information appeared to be largely superficial. The disclaimers were printed and a few token stories were pulled but in most cases, there appeared to have been little attempt to comply with the ban by removing stories written before the ban took effect.
As an example, the CBC interviewed the operators of the Politics Canada website several times last week, and was very vocal in news stories about the distinction between the CBC, which they said would comply with the ban, and Politics Canada which they said would not. The implication, made repeatedly, was that as good corporate citizens, the CBC would comply with federal law however unreasonable. Politics Canada on the other hand, was portrayed as a rogue, scofflaw site.
But the CBC did not remove the vast majority of polling information from its website and therefore, was in violation of the very same law. During the polling information blackout period operators of Politics Canada visited the CBC site and printed two news stories that reported or referred to poll results. One story was an editorial commentary. The second was a transcript for the show "The National".
While we read and printed just these two stories, many more stories were available on the CBC website. The site contains transcripts for "The National" going back more than a year, and many of these transcripts contain or refer to opinion poll results. So to be clear: we believe that the CBC violated the very same ban that it claimed to so well understand, and to be in compliance with.
Nor was the CBC the only major media site to apparently violate federal election law. Operators of Politics Canada visited the website for "The Globe and Mail" during the blackout period. There, in spite of the fact that the Globe and Mail had written several stories referring to Politics Canada, calling Politics Canada one of only two "scofflaw" sites in Canada, we were able again to print two stories containing opinion poll results. One of these was even available on the front page of the election coverage section of the Globe and Mail website.
So to be clear: we believe that The Globe and Mail has violated the federal election law with respect to the ban on polling information.
We checked other sites as well. Operators of Politics Canada found and printed a story containing polling information from the CANOE website, operated by, or affiliated with, the Edmonton, Toronto, and various other Sun newspapers.
We were able to access several stories, and printed one, from the Edmonton Journal, a newspaper operated by the Southam chain. We also printed a poll results bearing story from the McClean's magazine site, as well as the Montreal Gazette, the Ottawa Citizen, and Southam's elections site, called Canada Votes Election 97.
Nor were media firms the only violators. Angus Reid is a major polling firm that has a website. During the blackout period we visited their website and found complete polling results from recent opinion polls, available from their front page.
Environics is also a major polling firm. We did not visit the Environics website, but we note that a radio story ran during the blackout period, in which an executive from Environics claimed that their website, running at the time, was legal, because polling information was accessible only from website servers physically located in London, England. Unfortunately for Environics, geography is not a defence to this law. We believe that both Angus Reid and Environics were in blatant violation of federal election law.
For all these websites, Politics Canada was able to retrieve polling information that appeared to violate federal law. In all cases except Environics, we printed the stories, partly so we could more effectively refute the media contention from last week that Politics Canada was the only website that would not be complying with the ban.
We at Politics Canada believe that this apparent, massive violation of federal law by the media and other organizations proves our point: that the ban means one thing in the conventional media, which can easily comply, and quite another for many website operators who cannot effectively comply with the ban without shutting down their websites.
Last week, the mainstream media painted Politics Canada as a renegade site, and one of only two websites that would violate federal election law. As a consequence, the public who heard this story, now believe that we may be criminals, even if the cause is just and the law unreasonable. They have been told that the mainstream media complied with the law, while Politics Canada, representing some fictional outlaw community running rampant on the Internet did not.
As well, we believe that Elections Canada may be actively investigating the Politics Canada website, while ignoring these many other sites that also appear to have violated the law, in exactly the same way, for largely the same reasons.
Today, Politics Canada aims to take steps necessary to repair its reputation, and to push the effort to change this law forward.
It is Elections Canada policy not to monitor websites for content, but to rely on self enforcement. Furthermore, Election Canada's stated policy is that, if a written complaint is filed with the agency, that complaint will be investigated and charges could then be laid.
Accordingly, Mariner Systems Services Inc., operators of the Politics Canada website, will today file nine formal, written complaints with Elections Canada. In each case, we have included a printed copy of a webpage, containing polling information, taken from a website during the blackout period. In each case, we have indicated to Elections Canada that we have at least two witnesses who are willing to testify as to how the documents were obtained - i.e. from a website covered under the polling ban.
This action is supported by Electronic Frontier Canada. "We support the submission of formal, written complaints to Elections Canada," said David Jones, President of the organization. "It's time for Elections Canada to either enforce the laws or admit they don't make sense. It's time for Elections Canada to put up or shut up."
With this irrefutable evidence of violations of federal law, we expect Elections Canada to fulfil its purpose and policy, and to investigate and to file charges against each of these organizations. The maximum penalty for violating federal elections law is $5,000 or five years in prison, or $1,000 or one year in prison, depending on the type of offense.
It is certainly not our hope that someone from the CBC, for example, will go to prison for five years over this issue. Instead, we hope these organizations will defend themselves as we would - by challenging the law as an unreasonable restriction on freedom of speech. We believe that they will be successful in this effort.
As well, we hope that by filing so many complaints, against so many otherwise reputable organizations, that both Elections Canada and the Canadian public will become aware that federal election law as currently constructed, is to all intents and purposes, impossible to comply with in the context of the Internet and the World Wide Web.
In conclusion, we believe that the Politics Canada website, run by a small private company, should not be the only party defending website operators against the election polling ban, particularly when so many, so much larger organizations have also failed to comply with its terms. By filing complaints against these organizations, it is our hope that they will accept a portion of the responsibility to defend their interests in developing websites. We also hope that they will stop portraying smaller companies, more dependent on their websites, as the only lawbreakers in this issue.
Founded in 1993, Mariner Systems Services Inc. is the Canadian company behind the Politics Canada website. With Politics Canada, the company seeks to use the Internet to provide Canadians with the means not just to observe in Canadian politics, but to actively engage in the political process.
Founded in 1994, Electronic Frontier Canada is a Canadian nonprofit corporation with hundreds of members drawn from all Canadian provinces and territories. EFC is devoted to the protection of the rights enshrined in the Charter of Rights and Freedoms as new communications technologies are introduced into Canadian society.
Terry O'Neill, firstname.lastname@example.org
Phone: (403) 426-7780, Fax: (403) 429-4695
Dr. David Jones, email@example.com
Phone: (905) 525-9140 ext.24689, Fax: (905) 546-9995