Update on Third Party Advertising violation

The Town of Pelham received several inquiries regarding alleged non-compliant third party advertising on behalf of a local print media publication.

The Municipal Elections Act, 1996 (the “Act”) sets rules for advertising during elections, including rules with respect to third party advertising. The Act defines third party advertising as a message in any medium (online, sign, billboard, newspaper, radio, television, etc.) that supports or opposes a candidate or supports a yes or no vote on a question on a ballot. Section 88.4 of the Act prohibits any individual, corporation, or trade union (a “third party advertiser”) from incurring any expense for a third party advertisement from May 1, 2018 to the close of voting on October 22, 2018 (the “restricted period”), unless they have registered as a third party advertiser in accordance with the Act.

The local print media publication in question is a corporation, and it chose not to register as a third party advertiser in accordance with the Act.

Section 88.5 of the Act prohibits any registered third party advertiser from causing a third party advertisement to appear during the restricted period unless the advertisement contains (1) the name of the registered third party; (2) the municipality where the registered third party is registered; and (3) a telephone number, mailing address or email at which the registered third party may be contacted regarding the advertisement (collectively, the “required information”). Section 88.5 also prohibits broadcasters and publishers from causing a third party advertisement to appear during the restricted period if the required information has not been provided.

The Act is clear that activities that do not involve spending money, such as discussions or expressing an opinion about a candidate or an answer to a question on a ballot, are not considered to be third party advertising.

One advertisement that the Town has been receiving complaints about is a paid social media post that supports or opposes a candidate or supports a yes or no vote on a question on a ballot published by a corporation that is not registered as a third party advertiser pursuant to the Act. The current image in the paid advertisement does not include the required information. Accordingly, it is the Town’s position that the advertisement in question contravened the third party advertising rules as outlined in section 88.4 and 88.5 of the Act. Pursuant to section 88.7 of the Act, the Town Clerk asked that the third party advertisement be removed, citing the contravention, however the media publication has responded that in their opinion, it was the Clerk who misinterpreted the Act. The Town disagrees.

Information about third party advertising can be found on the Town of Pelham website, www.pelham.ca/election under the heading “Third Party Campaigns”.

In an effort to provide information for new regulations – such as third party advertising – Niagara’s 12 municipalities formed www.niagaravotes.ca which produces regular press releases, updates, and information to be sent to publishers, broadcasters, and other forms of media, in addition to the general public. Information, specifically about third party advertising, was sent to local media in Niagara in April of this year.

The Town has also been made aware that a local print media publication has allegedly been providing advice to at least one candidate. That candidate advised that the advice received was based on the Election Act, 1990 and publications of Elections Ontario concerning the provincial election. It is important to note that the Election Act, 1990 governs the Ontario provincial election, and Elections Ontario directs questions relating to the municipal elections to the applicable municipality. The Municipal Elections Act, 1996, governs municipal elections.