Canada: Twitter Users Face Jailtime, Fines For Tweeting Election Results

In Canada, a tweet is worth $25,000. Or, at least it is if you're tweeting on election night, when posting the results of the election before polls have closed is illegal and could land you in jail for five years.

The ban on broadcasting election results, which dates back to 1938, is found in section 329 of the Canada Elections Act which states, "No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district."

Of course in 1938, there was no Internet. The law, meant to keep media from unduly influencing the voters on the West Coast four hours behind the East, seems futile in an age where anybody with web access can act as a broadcaster. As has become fairly obvious in the past five years, you don't have to be a news organization to spread information to a huge number of people anymore.

"We're not blind to the fact that social media has taken on its own dimension, especially among youth," said John Enright, a spokesperson for Elections Canada, the agency responsible for conducting elections. "As it stands now, 329 is still on the books. People should act in consequence to 329 and the possible repercussions."

The law makes a key distinction between transmission and communication: transmission is illegal, communication is not.

"Results disseminated by Facebook email to an individual friend wiould not be considered transmission," said Enright. "Results posted on a Facebook wall could be. 329 applies equally to all transmissions no matter what means is used."

What, then, would be the difference between a tweet from someone with ten followers as opposed to a tweet from someone with 10,000 followers? Both tweets, across a public network, seem to qualify as transmission, rather than private communication--but how much could the former really influence the broad population of voters?

Enright acknowledged that the 73-year-old law was originally developed to target "major broadcasters" rather than the new class of citizen voices populating the web. But the penalties of violating the law are more manageable for those big broadcasters than for ordinary people: up to $25,000 in fines, and up to five years in jail.

"Elections Canada is an old outdated organization," said Peter Coleman, the president of the National Citizens Coalition, a conservative lobbying group once led by current Prime Minister Stephen Harper. "It's pretty naive to think someone's going to go on Twitter and say, 'Guess what, my candidate won' and have that affect someone who's voting on the West Coast. We can't shut down the Internet, nor should we. This is about free speech."

Just last week, Canadian news organizations CBC and CTV went to court to try to declare Section 329 unconstitutional, but the court declined to hear the case before election day on May 2.

Before that, the last challenge to the law was in 2000, when blogger Paul Bryan deliberately broke the law, arguing that technology had rendered it obsolete. In 2007, the Supreme Court of Canada ruled against Bryan in a 5-4 decision and fined him $1,000--though his legal fees entered six figures.

Justice Rosalie Abella wrote the dissenting opinion, saying, "There is only speculative and unpersuasive evidence to support the government's claim that the information imbalance is of sufficient harm to voter behaviour or perceptions of electoral unfairness that it outweighs any damage done to a fundamental and constitutionally protected right."

Ironically enough, one of Bryan's staunchest defenders at the time was current Prime Minister Stephen Harper, one-time president of the National Citizens Coalition, which helped pay for Bryan's legal fees.

"These jackasses at Elections Canada are out of control," Harper said. "The government's law is outdated and just plain wrong."

Elections Canada doesn't monitor the Internet to find violations. Instead, the group acts on complaints they receive. According to them, there has been no violation in the past five years of the law, although evidence exists that numerous violations have certainly occurred. In 2008, Globe and Mail writer Matthew Ingram tweeted, "I'm going to willingly violate Canada's election law and let you know that early results show the 'keep everything the same' party winning."

This year, dissenters plan a much more public flouting of the law with a nationwide Tweet-in, rallying around the hashtag #tweettheresults. The origin of the tweet-rally has been attributed to Peter Raaymakers, who tweeted, "I wonder how many people we could get to take part in a 'tweet-in' protest against the election-night Twitter ban."

Since then, hundreds of people, Canadian and otherwise, have joined hands across the Twittersphere to show their solidarity and #tweettheresults. Tweets range from sardonic to the serious.

User @missmyla_ tweeted, "On May 2nd, Canadians will be tweeting like it's 1938. Oh, wait...."

Another, @BRinYEG, wrote, "I think free speech and democracy shouldn't be opposing forces. #tweettheresults."

It's unclear what the consequences could be for people who decide to tweet on Election Night, violating the law.

"The commissioner will consider the facts as identified by investigation and consider the public interests in enforcement," Enright said of the threatened revolt, which could potentially result in thousands of citizens openly violating the law. "We don't know what's going to happen right now. 329 is still on the books."

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