PROTECTING ELECTIONS FROM
DISINFORMATION: A MULTIFACETED PUBLICPRIVATE
APPROACH TO SOCIAL MEDIA AND
DEMOCRATIC SPEECH
YASMIN DAWOOD*
CONTENTS
I. INTRODUCTION.............................................................640	
II. ELECTIONS IN CANADA ...............................................642
III. DISCLOSURE AND TRANSPARENCY........................... 645
IV. CONTENT-BASED REGULATION AND SELF
REGULATION ................................................................. 653
V. NORM-BASED INITIATIVES .........................................663
VI. MEDIA LITERACY AND CITIZEN EDUCATION .......... 665
VII. CONCLUSION ................................................................. 667
*
Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and
Associate Professor, University of Toronto Faculty of Law and Department of
Political Science; J.D. Columbia Law School, Ph.D. (Political Science) University of
Chicago. My thanks to Daniel Kreiss, William Marshall, Nathaniel Persily, Guy
Rub, Sean Trende, Daniel Tokaji, Ellen Weintraub, Abby Wood, and the participants
at the Elections in the Era of Technological Threats and Opportunities Symposium
for invigorating discussions. Special thanks as well to Olivia Eng for excellent
research assistance. I am also grateful to the editorial team at the OSTLJ for
organizing a terrific symposium and for their careful work on this Article.
The Ohio State Technology Law Journal
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 640
I. INTRODUCTION
The rise of social media has brought renewed attention to a profound
dilemma confronting democratic theory and practice.1
On the one hand,
social media allows for new and accessible forms of speech, persuasion,
and association, thereby strengthening the discourse that lies at the heart
of a democratic system of government. On the other hand, social media
gives rise to a host of ills, including fake news, polarization, echo
chambers, extremism, radicalization, and fragmentation, which
undermines the long-term health of democracy.2
Russian interference in
the 2016 U.S. election provides the most vivid illustration of the
destabilizing impact of social media on democracy. Domestic
engagement in disinformation likewise poses a significant threat.3
In one sense, the free speech dilemma is hardly new. The freedom of
speech has always been indispensable for, yet potentially detrimental to,
democracy. However, the familiar argument about the truth-revealing
character of the marketplace of ideas has been put to the test in recent
years, particularly in the face of fake news and the emergence of deep
fakes. Moreover, the decline of democracy and the concomitant rise of
populist authoritarianism around the globe has revealed the inherent
1
CASS R. SUNSTEIN, #REPUBLIC: DIVIDED DEMOCRACY IN THE AGE OF SOCIAL
MEDIA 24-25 (2017) (cataloguing the complex issues raised by social media for
freedom of speech); Richard L. Hasen, Cheap Speech and What It Has Done (to
American Democracy), 16 FIRST AMEND. REV. 200, 200 (2018) (observing that the
democratization of speech has a dark side, namely the undermining of mediating and
stabilizing institutions).
2
Nathaniel Persily, Can Democracy Survive the Internet?, 28 J. DEMOCRACY 63
(2017); Richard L. Hasen, Deep Fakes, Bots, and Siloed Justices: American Election
Law in a “Post-Truth” World, 64 ST. LOUIS U. L.J. 535, 535-36 (2020) (manuscript
at 2-3). See generally CASS R. SUNSTEIN, #REPUBLIC: DIVIDED DEMOCRACY IN THE
AGE OF SOCIAL MEDIA (2017).
3
Persily, supra note 2, at 70 (noting that “fake news is a problem because voters may
be manipulated and make important policy and political choices based on dubious
information”); Abby K. Wood & Ann M. Ravel, Fool Me Once: Regulating “Fake
News” and Other Online Advertising, 91 S. CAL. L. REV. 1223, 1237 (2018) (noting
that disinformation damages democracy “by undermining our faith in our
institutions, weakening voter competence, and splintering the electorate”).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 641
fragility of democratic institutions, processes, and norms.4
The dilemma
posed by social media thus presents an urgent issue when considering
the ongoing health and sustainability of a democratic order.5
This Article focuses on Canada’s efforts to confront the challenges of
social media and disinformation. It makes two interrelated claims. First,
it argues for a multifaceted public-private approach that employs a suite
of complementary tactics including: (1) disclosure and transparency
laws; (2) content-based regulation and self-regulation; (3) norm-based
strategies; and (4) civic education and media literacy efforts. It outlines
Canada’s efforts to inoculate the electoral process from the harms of
disinformation, focusing in particular on both public and private
initiatives for each of the four categories. In addition, it argues that the
Canadian approach contains a mix of legal regulation (regulation
imposed by the state), self-regulation (regulation by private actors), and
co-regulation (regulation through cooperation between private actors
and public actors).6
As such, the Canadian approach is multifaceted in
two respects: first, because it employs a suite of tactics; and second,
because it involves a mix of regulatory approaches.
Second, the Article argues that the objective of this multifaceted publicprivate
approach is to optimize the tradeoff between defending against
disinformation and protecting the freedom of speech. Removing all
disinformation would be too costly from a free-speech perspective. The
4
TOM GINSBURG & AZIZ Z. HUQ, HOW TO SAVE A CONSTITUTIONAL DEMOCRACY
163 (2018); STEVEN LEVITSKY & DANIEL ZIBLATT, HOW DEMOCRACIES DIE 5-10
(2018).
5
For an analysis of the harms of the internet, and possible reforms, see NATHANIEL
PERSILY, KOFI ANNAN FOUNDATION THE INTERNET’S CHALLENGE TO DEMOCRACY:
FRAMING THE PROBLEM AND ASSESSING REFORMS (2019). Professor Persily
identifies a number of possible reforms, including deletion, demotion, disclosure,
delay, dilution and divergence, deterrence, and digital literacy.” Id. at 6-7, 36-50.
6
Andreas Busch, Patrick Theiner & Yana Breindl, Internet Censorship in Liberal
Democracies: Learning from Autocracies?, in MANAGING DEMOCRACY IN THE
DIGITAL AGE: INTERNET REGULATION, SOCIAL MEDIA USE, AND ONLINE CIVIC
ENGAGEMENT 16 (Julia Schwanholz, Peter-Tobias Stoll & Todd Graham eds., 2018).
Generally, English-speaking countries (the United States, Canada, the United
Kingdom) have preferred self-regulation, while EU members are more likely to use
co-regulation and legal regulation. Id. at 20.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 642
dilemma posed by social media is in some sense irresolvable and
unavoidable. The Article catalogues the various shortcomings with the
tactics adopted in Canada but it concludes that this multifaceted
approach is preferable to no action at all. Despite the flaws of each
tactic, the combined and interactive effects of a multifaceted approach
provide helpful protections against some of the harms of disinformation
while still protecting the freedom of speech. In addition, Canada’s
multifaceted public-private approach signals the importance of electoral
integrity thereby shoring up the public trust that is indispensable to
sustaining a democratic order.7
Democratic stability depends in no small
measure on citizen trust in the integrity of elections.
This Article is organized in five sections. Part II provides a brief
overview of the electoral system in Canada. Part III turns to disclosure
and transparency laws, focusing in particular on the new legally
mandated political ad registry and industry responses to it. Part IV
addresses content-based regulation and content-based self-regulation. It
claims that narrow content-based regulations prohibiting “false election
speech,”8
as adopted in Canada, help to protect electoral integrity, and
by extension, foster ongoing confidence in the democratic process. Part
V examines two publicly-led initiatives—the Declaration on Electoral
Integrity and the Digital Charter—which I suggest play an important
role establishing and reinforcing democratic norms with respect to the
digital world. Part VI focuses on citizen education and media literacy
initiatives by both public and private entities, which help to build social
resilience to disinformation. The conclusion summarizes the main
themes.
II. ELECTIONS IN CANADA
The right to vote is constitutionally protected in Canada. Section 3 of
the Charter of Rights and Freedoms provides that “every citizen of
Canada has the right to vote in an election of the members of the House
of Commons or of a legislative assembly and to be qualified for
7
Hasen, supra note 1, at 33 (describing confidence in free and fair elections as the
“bedrock of democracy”).
8
Id. at 14.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 643
membership therein.”9
The Charter contains two additional provisions
that protect democratic rights. Section 4 sets a maximum duration of
five years for the life of the House of Commons or a provincial
legislature, although this period can be extended in the event of a
national crisis. Section 5 guarantees a sitting of Parliament and the
legislatures at least once every year. The democratic rights protected
under sections 3, 4 and 5 of the Charter cannot be overridden by the
legislative exercise of the notwithstanding clause in section 33, although
they are subject under section 1 to “such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.”
The Supreme Court of Canada has handed down several significant
election law decisions.10
For example, the court upheld the
constitutionality of campaign finance regulations,11
struck down
restrictions on inmate voting,12
and set a standard for electoral
redistricting.13
Canada has a first-past-the-post electoral system. National elections are
governed by the Canada Elections Act, and administered by Elections
Canada, an independent and non-partisan agency.14
In 2007, Canada
adopted fixed election date legislation which stipulates that a general
election is to take place every four years on the third Monday of
October. Despite the fixed date legislation, the Governor General, on
the advice of the Prime Minister, can still call an election at any time.
Another important feature of the electoral system is the election period
(also known as the writ period), which lasts for a minimum of 36 days
before the date of the election. The Canada Elections Act sets out
campaign finance limits for advertising expenses incurred by political
9
Canadian Charter of Rights and Freedoms, s 3, Part I of the Constitution Act, being
Schedule B to the Canada Act 1982, 1982, c 11 (U.K.).
10
For an overview of the Supreme Court of Canada’s election law decisions, see
Yasmin Dawood, Democratic Rights, in THE OXFORD HANDBOOK OF THE
CANADIAN CONSTITUTION (Peter Oliver, Patrick Macklem & Nathalie Des Rosiers
eds., 2017).
11
Harper v. Canada, [2004] S.C.R. 827 (Can.).
12
Sauvé v. Canada, [2002] S.C.R. 519 (Can.).
13
Reference re Provincial Electoral Boundaries (Sask), [1991] 2 S.C.R. 158 (Can.).
14
For a discussion of the institutional role played by Elections Canada in the larger
electoral ecosystem, see Daniel P. Tokaji, Campaign Finance Regulation in North
America: An Institutional Perspective, 17 ELECTION L.J. 188, 195-96 (2018).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 644
parties, candidates, and third parties during the election period. These
advertising expenses are partially reimbursed subject to various
requirements, thereby providing a significant public dimension to the
campaign finance regime. The Canada Elections Act also establishes
contribution limits for individuals and prohibits donations by
corporations and unions.
In December 2018, the federal government passed the Elections
Modernization Act, Bill C-76 (the “Act”), which ushered in sweeping
amendments to the Canada Elections Act. The Elections Modernization
Act reversed several changes that had been introduced by the Fair
Elections Act, which was enacted by the previous Conservative
government in 2014.15
For example, the Act reintroduced vouching and
allowed voter information cards to be used as proof of identity. The Act
also introduced new rules, such as limiting the election period to 50
days, introducing reporting requirements for third parties, implementing
measures to prevent foreign interference, and requiring that online
platforms maintain a registry of all digital political advertisements.16
The Act also ushered in a new “pre-election period” which begins on
the June 30th before the holding of a general election and ends on the
first day of the election period.17
New campaign finance rules apply to
15
The last major change to Canada’s elections laws was the Fair Elections Act,
passed by the previous Conservative government in 2014. Major changes introduced
by the Fair Elections Act included the elimination of vouching, limitations on what
information the Chief Electoral Officer and Elections Canada could communicate to
the public, moving the Commissioner of Canada Elections out of Elections Canada
and into the office of the Director of Public Prosecutions, and increasing donation
limits. The Fair Elections Act was heavily criticized by experts, in particular by
hundreds of academics who wrote two open letters, which generated considerable
public attention (full disclosure: I was one of the principal authors of the open
letters). See Melissa Williams et al., An Open Letter on the Fair Elections Act,
GLOBE & MAIL (Apr. 23, 2014), https://www.theglobeandmail.com/opinion/an-openletter-from-academics-on-bill-c-23/article18114166/
[https://perma.cc/27KD-
7NQQ].
16
Marco Vigliotti, Elections Bill Gets Royal Assent After Fractious Path Through
Parliament, IPOLITICS (Dec. 14, 2018, 4:30 PM), https://ipolitics.ca/article/elections-
bill-gets-royal-assent-after-fractious-path-through-parliament/
[https://perma.cc/Q9MA-KDYT].
17
The election period often begins on the 37th day before the date of the general
election, which for fixed date elections is the third Monday of October four years
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 645
political parties18
and third parties19
for advertising expenses during the
pre-election period.
III. DISCLOSURE AND TRANSPARENCY
To respond to the problem of disinformation, the Canadian government
has primarily relied on transparency and disclosure requirements for
political advertising. The Election Modernization Act requires third
parties to identify themselves using taglines in all partisan advertising
messages during the pre-election period20
and all election advertising
messages during the election period.21
Third parties must also comply
with new accounting and disclosure requirements.22
In addition,
political parties are now required to add disclaimers for partisan
advertising messages.23
The main mechanism, however, is that online platforms are now
required to publish a digital registry of partisan and election advertising
messages.24
Not every online platform, however, is subject to the
requirement. The registry requirement applies only to online platforms
after the last general election. Elections Modernization Act, S.C. 2018, c 31, s 2(7),
amending Canada Elections Act, S.C. 2000, c 9, s 2(1) (Can.).
18
The limit on partisan advertising expenses during the pre-election period for
registered political parties will be $2,046,800 for 2019 (a base amount of $1.4
million, multiplied by an inflation adjustment factor). ELECTIONS CANADA,
POLITICAL FINANCING HANDBOOK FOR REGISTERED PARTIES AND CHIEF AGENTS 70
(Jun. 2019).
19
ELECTIONS CANADA, POLITICAL FINANCING HANDBOOK FOR THIRD PARTIES,
FINANCIAL AGENTS AND AUDITORS 30 (Jun. 2019).
20
Elections Modernization Act, S.C. 2018, c 31, s 222(3), amending Canada
Elections Act, S.C. 2000, c 9, s 349.5 (Can.).
21
Id. at s 352. The taglines must contain the third party’s name, phone number, civic
or internet address and an indication that it has authorized the message.
22
Awanish Sinha et al., Canada’s Election Laws Are Changing–Here’s What You
Need to Know, MCCARTHY TÉTRAULT LLP (May 10, 2019),
https://www.mccarthy.ca/en/insights/articles/canadas-election-laws-are-changingheres-what-you-need-know
[https://perma.cc/5F5L-7QKS].
23
Elections Modernization Act, S.C. 2018, c 31, s 262, amending Canada Elections
Act, S.C. 2000, c 9, s 429.3 (Can.).
24
Elections Modernization Act, S.C. 2018, c 31, s 208.1, amending Canada Elections
Act, S.C. 2000, c 9, s 325.1(2) (Can.).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 646
that, during a specified time period, had a certain number of monthly
visits by internet users in Canada.25
Online platforms that meet this
threshold must publish a digital registry of partisan advertising
messages (which are displayed during the pre-election period) and
election advertising messages (which are displayed during the election
period) on the platform.26
Partisan advertising messages are basically
the equivalent of express advocacy, while election advertising messages
include express advocacy and issue advertising that is associated with a
party or a candidate.27
As such, the Act requires online platforms to
provide information about issue advertising during the election period
but not during the pre-election period.
In terms of specific requirements, the registry must include an electronic
copy of each partisan or election advertising message published on the
platform and the name of the person who authorized the message.28
The
publication period of the registry is fairly lengthy. For election and
partisan advertising messages, the platform must publish the relevant
information starting on the first day the platform publishes the ad and
ending two years after the end of the election period.29
The online
platform must keep the information included in the registry for five
years after the end of the publication period.30
The person or entity
purchasing the advertisement is responsible for providing the platform
25
Id. An online platform is broadly construed as any website or application that
displays regulated advertising.
26
Id.
27
Election advertising is defined as “the transmission to the public by any means
during an election period of an advertising message that promotes or opposes a
registered party or the election of a candidate, including by taking a position on an
issue with which a registered party or candidate is associated,” while partisan
advertising is defined as “the transmission to the public by any means during a preelection
period of an advertising message that promotes or opposes a registered party
or eligible party or the election of a potential candidate, nomination contestant or
leader of a registered party or eligible party, otherwise than by taking a position on
an issue with which any such party or person is associated.” Canada Elections Act,
S.C. 2000, c 9, s 2(1) (Can.).
28
Elections Modernization Act, S.C. 2018, c 31, s 208.1, amending Canada Elections
Act, S.C. 2000, c 9, s 325 (Can.).
29
Id.
30
Id.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 647
with the necessary information for the online registry.31
Owners and
operators of online platforms could face fines of up to $50,000 if they
intentionally violate the registry requirement, whereas unintentional
violations are subject to fines of up to $2,000, and/or a term of
imprisonment of up to three months.32
The Act’s online ad registry requirements are similar in approach to the
proposed Honest Ads Act in the U.S.33
The objective of the proposed
Honest Ads Act is to expand disclosure rules for online advertisements.
The bill was prompted by concerns over Russian interference in the
2016 U.S. presidential election, as well as the “growing centrality of
online platforms in the lives of Americans.”34
The bill would expand the
definition of “electioneering communication” to include paid internet
and digital advertisements, placing such advertisements within the
ambit of election and campaign finance laws.35
It would require online
platforms that meet a threshold of monthly visitors to keep a publicly
accessible record of all political ad purchases in excess of $500.36
It
would also require “paid for” disclosures on a wide array of online ads.
Media outlets and online platforms would be required to make
“reasonable efforts” to ensure that foreign nationals are not buying
political advertisements, directly or indirectly.37
The bill was
reintroduced in 2019, but it is unlikely to pass in the Republicandominated
Senate.38
31
Id.
32
Elections Modernization Act, S.C. 2018, c 31, s 349, amending Canada Elections
Act, S.C. 2000, c 9, s 505(3) (Can.); Elections Modernization Act, S.C. 2018, c 31, s
346(1), amending Canada Elections Act, S.C. 2000, c 9, s 500(1) (Can.).
33
For a discussion of the Honest Ads Act, see Brian Beyersdorf, Regulating the
“Most Accessible Marketplace of Ideas in History”: Disclosure Requirements in
Online Political Advertisements After the 2016 Election, 107 CALIF. L. REV. 1061,
1089-90 (2019).
34
Honest Ads Act, S. 1356, 116th Cong. § 4 (2019).
35
Maggie Miller, Bipartisan Group of Senators Seeks to Increase Transparency of
Online Political Ads, HILL (May 8, 2019),
https://thehill.com/homenews/senate/442598-bipartisan-group-of-senators-seek-toincrease-transparency-of-online
[https://perma.cc/U37R-HVJ5].
36
Id.
37
Honest Ads Act, S. 1356, 116th Cong. § 9 (2019).
38
Miller, supra note 35. The House previously passed H.R. 1 which included the
Honest Ads Act.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 648
There are advantages and drawbacks to Canada’s online ad registry.39
On the plus side, the registry promises to enhance transparency and
reduce disinformation because both the ad and the name of the person
who authorized the message are made publicly available in the registry.
There are, however, criticisms of the ad registry. First, some critics have
argued that the ads registry does not go far enough because it does not
require platforms to provide information about advertisers’ targeting
strategies, thereby missing an opportunity for the public oversight of
targeted advertising and for gathering data about the effectiveness of
micro-targeting.40
A second drawback to the ads registry is that it is
unlikely to uncover foreign interference. Foreign adversaries engaging
in covert interference will most likely impersonate Canadian citizens
and organizations and will not provide the platforms with genuine
information. In the U.S., for example, employees of the Russian IRA
entity impersonated U.S. individuals and entities in order to buy
political ads on social media.41
A third category of criticism is that online ad registries go too far. These
registries may dampen free speech because online providers will forgo
political advertising in order to avoid the reporting requirements.
Concerns about self-censorship and overreach are mitigated somewhat
by the fact that the registry applies only to paid advertisements, which
Elections Canada has clarified as referring to messages that have or
39
For a discussion of the drawbacks of disclosure as a general matter, see Abby K.
Wood, Campaign Finance Disclosure, 14 ANN. REV. L. & SOC. SCI. 11, 22-24
(2018) (identifying costs of disclosure as chilling speech, harassment, onerous
reporting requirements, and the facilitation of corruption). For an analysis of the
administrative and enforcement challenges connected with regulating political
advertising on social media in Canada, see Michael Pal, Social Media and
Democracy: Challenges for Election Law and Administration in Canada, 19
ELECTION L.J. 200, 204-205 (2020).
40
Jesse Hirsh, Canadian Elections Can’t Side-step Social Media Influence, CTR. FOR
INT’L GOVERNANCE INNOVATION (Nov. 20, 2018),
https://www.cigionline.org/articles/canadian-elections-cant-side-step-social-mediainfluence
[https://perma.cc/9TRU-N4X7].
41
ROBERT S. MUELLER, III, U.S. DEP’T OF JUST., REPORT ON THE INVESTIGATION
INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION 14 (Mar. 2019).
For a similar argument, see Pal, supra note 39, at 204.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 649
would otherwise have a placement cost.42
As a result, many forms of
political communication will escape the requirements.43
For instance,
advertising messages could avoid the registry if they are posted for free
on social media, even if expenses were incurred in their creation. The
regulations also explicitly exclude a number of categories of
communication, including: (1) text messages, e-mails, and other private
messages; (2) user-generated content posted for free on social media;
(3) editorials, columns, or news articles; and (4) messages and content,
including videos, on a political entity’s own website or on free websites,
such as YouTube.44
With respect to self-censorship by online platforms, the experience in
Canada has been mixed. In response to the online registry requirement,
several online platforms, including Microsoft (Bing, MSN), Reddit,
Amazon.ca, and Google banned political ads during the Canadian
election altogether, citing concerns about setting up the registries in the
given time period.45
Google announced in March 2019 that it would be
banning political advertising on its platforms ahead of the 2019 federal
election, on the basis that the new ad registry rules would be too difficult
to comply with in the time frame.46
A 2016 study estimated that Google
accounted for 47.7% of Internet advertising market share in Canada.47
Google’s decision to not accept political advertising could have
42
New Registry Requirements for Political Ads on Online Platforms, ELECTIONS
CAN. [hereinafter New Registry Requirements],
https://elections.ca/content.aspx?section=pol&dir=regifaq&document=index&lang=e
[https://perma.cc/4S2W-5QLP].
43
Joan Bryden, New Registry Law for Online Ads Only Applies to Paid Campaigns:
Elections Canada, GLOBAL NEWS (Apr. 24, 2019, 7:19 PM),
https://globalnews.ca/news/5200262/online-registry-political-adverts/
[https://perma.cc/WR39-3VKD].
44
New Registry Requirements, supra note 42.
45
Elizabeth Thompson, Most of Canada’s Top Websites Won’t Post Federal Election
Ads This Year, CBC NEWS (May 1, 2019, 4:00 AM),
https://www.cbc.ca/news/politics/online-election-advertising-canada-1.5116753
[https://perma.cc/L3JU-7AZA].
46
Tom Cardoso, Google To Ban Political Ads Ahead of Federal Election, Cites New
Transparency Rules, GLOBE & MAIL (Mar. 4, 2019),
https://www.theglobeandmail.com/politics/article-google-to-ban-political-ads-aheadof-federal-election-citing-new/
[https://perma.cc/7DRP-CCRJ].
47
Id.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 650
impacted other websites as well given their reliance on Google for
programmatic ad serving.48
Twitter banned partisan political advertisements during the pre-election
period, which began on June 30, 2019.49
The reason for the ad
prohibition was that Twitter had to build the necessary infrastructure
support.50
Issue advertisements, however, were permitted over the
summer.51
Twitter planned to launch its online ad registry once the
election period began, at which time both partisan and issue
advertisements would be permitted. However, in October 2019, Twitter
adopted a global prohibition of paid political content.52
Elections Canada confirmed that companies were still bound by their
obligations under the law even if they banned political ads on their
platform, and that they could be fined thousands of dollars if regulated
ads appeared on their site without being included in a registry.53
These
fines, however, may not furnish a significant deterrence given the
48
Elizabeth Thompson, Who Authorized That Election Ad? Under New Rules
Website Owners Must Know Before They Display, CBC NEWS (Jun. 30, 2019, 4:00
AM), https://www.cbc.ca/news/politics/election-online-advertising-canada-
1.5195484 [https://perma.cc/D3M2-FKU4].
49
Id.
50
Michele Austin, Providing Clarity on Political Advertising in Canada, TWITTER
(June 26, 2019),
https://blog.twitter.com/en_ca/topics/company/2019/political_advertising_in_canada.
html [https://perma.cc/97SX-33ML].
51
Elizabeth Thompson, Twitter Banning Political Ads in Canada Until Election
Campaign, CBC NEWS (June 26, 2019, 10:06 AM),
https://www.cbc.ca/news/politics/twitter-online-advertising-election-1.5190465
[https://perma.cc/KE8W-RYE2].
52
The Associated Press, Twitter Bans All Political Advertising on its Service,
Diverging From Rival Facebook, CBC NEWS (Oct. 30, 2019, 5:08 PM),
https://www.cbc.ca/news/technology/twitter-bans-political-advertisements-
1.5341655 [https://perma.cc/CQA4-NJZN].
53
Rachel Aiello, Online Platforms Warned of Fines, Charges if They Don’t Comply
with New Political Ad Rules, CTV NEWS (Apr. 24, 2019, 12:17 PM),
https://www.ctvnews.ca/politics/online-platforms-warned-of-fines-charges-if-theydon-t-comply-with-new-political-ad-rules-1.4392884
[https://perma.cc/6VAN-
2TYV].
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 651
revenue generated by online advertising.54
Furthermore, political ad
bans by online platforms may be ineffective because these platforms
could continue to sell advertising space despite the restrictions. In
response to Washington state’s political advertising transparency
regulations, for example, both Google and Facebook announced that
they would no longer sell political ads for local races because they could
not meet the state’s disclosure requirements.55
However, in spite of its
ban on political ads, Google continued to sell ads for Washington state
campaigns, receiving more than $13,000 for ads targeting the November
2018 election.56
While most online platforms in Canada experienced some difficulty
complying with new ad registry legislation, Facebook appeared to have
complied by rolling out several new initiatives. First, Facebook
announced the launch of an Ad Library in June 2019 in order to meet
the ad registry requirements in the Elections Modernization Act.57
Ads
about social issues, elections, or politics will remain in the Ad Library
for 7 years, including demographic information about the ad’s viewers
such as age, gender, and location.58
Facebook had already established a
publicly searchable archive of all political and issue advertisements on
Facebook and Instagram in the United States.59
Second, Facebook
identified Canada-specific issues for the “Ads About Social Issues,
54
Sara Salinas, Alphabet Drops After Revealing Declining Advertising Prices and
Rising Costs, CNBC (Feb. 4, 2019, 3:33 PM),
https://www.cnbc.com/2019/02/04/alphabet-earnings-q4-2018.html
[https://perma.cc/TC5D-DL5P].
55
Eli Sanders, Since Google Banned Political Ads in Washington State, It’s Sold
More Than $13K of Them, STRANGER (Jan. 16, 2019, 8:55 AM),
https://www.thestranger.com/slog/2019/01/16/37975177/google-banned-politicalads-in-washington-state-then-kept-on-selling-them
[https://perma.cc/C6YW-YA9D].
56
Id.
57
Facebook Can., Facebook Launches Ads Transparency Tools In Canada Ahead Of
2019 Federal Election, CISION (June 10, 2019, 4:00 PM),
https://www.newswire.ca/news-releases/facebook-launches-ads-transparency-toolsin-canada-ahead-of-2019-federal-election-807760417.html
[https://perma.cc/X8BH-
FBZJ].
58
Id.
59
Rob Leathern, Shining a Light on Ads With Political Content, FACEBOOK
NEWSROOM (May 24, 2018), https://newsroom.fb.com/news/2018/05/ads-withpolitical-content/
[https://perma.cc/C77Y-SUXU].
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 652
Elections or Politics” policy.”60
Social issues are broadly defined to
include the following topics: civil and social rights, economy,
environmental politics, health, immigration, political values and
governance, security and foreign policy.61
Elections or politics include
political figures, political parties, legislation and “get out the vote”
campaigns.62
Ads about social issues will remain in the Ad Library for
7 years, and will be accompanied by various metrics such as its range of
impressions and the demographic information of the people who saw
the ad.63
Third, Facebook implemented an authorization process for all
advertisers in Canada who are running ads about social issues, elections,
or politics.64
The authorization process requires advertisers to confirm
their identity and location in Canada in addition to disclosing the person
responsible for the ad.65
Fourth, Facebook began offering access to the
Ad Library API, which allows customized keyword searches of the ads
stored in the Ad library.66
Researchers, journalists, and academics can
use the API to study political advertising and social issues. As discussed
in Part IV.B below, however, there are significant concerns about how
digital platforms, including Facebook, engage in self-regulation of fake
news.
In sum, the main drawback to mandatory disclosure such as the political
ad registry requirement is self-censorship. However, once online
platforms have built the necessary infrastructure, the benefits from
disclosure are significant. It should be noted, however, that the ad
registry requirement applies only to paid political content; as such, there
is no regulation of organic content, which can likewise be affected by
disinformation campaigns.
60
Facebook Can., supra note 57.
61
Press Release, Facebook Can., Canada Authorizations Digital One-Sheet: New
Requirements For Ads About Social Issues, Elections Or Politics In Canada (June
10, 2019),
https://www.dropbox.com/s/m184xn0quf68rvj/Facebook%20Canada%20Authorizati
ons%20%20Digital%20One-Sheet%5B3%5D.pdf?dl=0.
62
Id.
63
Facebook Can., supra note 57.
64
Id.
65
Id.
66
Id.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 653
IV. CONTENT-BASED REGULATION AND SELF
REGULATION
Content-based regulations for combatting disinformation raise
significant free speech concerns. France’s fake news law, for example,
has been described as censorship by opposition politicians and the
media.67
Some countries have imposed criminal penalties for the
creation or dissemination of fake news.68
For instance, Singapore has
passed a law requiring online media platforms carry warnings or remove
content the government deems false, with violations carrying a prison
term of up to 10 years.69
Russia has passed several laws targeting fake
news, including a bill that bans the spread of “unreliable sociallyimportant
information” that could endanger public security and order.70
According to Freedom House, the broad wording of the Russian
legislation allows for politically motivated removals in addition to
threatening the freedom of expression.71
Given the need to protect the
freedom of speech, government bans on fake news are not a viable
option in liberal democracies.
67
Ciara Nugent, France Is Voting on a Law Banning Fake News. Here’s How It
Could Work, TIME (June 7, 2018), http://time.com/5304611/france-fake-news-lawmacron/
[https://perma.cc/QB3X-GTBQ].
68
Alana Schetzer, Governments Are Making Fake News a Crime–but It Could Stifle
Free Speech, CONVERSATION (July 7, 2019, 4:10 PM),
https://theconversation.com/governments-are-making-fake-news-a-crime-but-itcould-stifle-free-speech-117654
[https://perma.cc/9WYC-B2Z5].
69
Singapore Fake News Law a ‘Disaster’ for Freedom of Speech, Says Rights
Group, GUARDIAN (May 9, 2019, 12:20 AM),
https://www.theguardian.com/world/2019/may/09/singapore-fake-news-law-adisaster-for-freedom-of-speech-says-rights-group
[https://perma.cc/T9QF-M54J].
70
Vladimir Isachenkov, Russian Bill Aims To Crack Down on ‘Fake News’ and
Disrespect to the Government, GLOBAL NEWS (Mar. 12, 2019, 10:55 AM),
https://globalnews.ca/news/5047214/russian-bill-crack-down-fake-news-disrespectgovernment/
[https://perma.cc/F9SE-LH5G].
71
Freedom on the Net 2018 – Russia Country Report, FREEDOM HOUSE,
https://freedomhouse.org/report/freedom-net/2018/russia [https://perma.cc/E9HG-
JF8G].
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 654
a. Government Restrictions on Misleading Publications
and False Statements
Canada has two narrow content-based restrictions to target “false
election speech,” which Richard Hasen has defined as false speech
about the mechanics of voting.72
The Canadian version covers a broader
category of speech since it also addresses false statements about
candidates and party leaders. These restrictions apply only during the
election period.
With respect to the first mechanism, the prohibition on misleading
publications, the Elections Modernization Act creates an offence of
distributing or publishing any material during an election period that
purports to be “made, distributed, transmitted or published by or under
the authority of the Chief Electoral Officer, or a returning officer,
political party, candidate or prospective candidate” where the material
was not authorized but was published with the intent of misleading the
public into believing that it was so authorized.73
Previously, only the
impersonation of such persons was prohibited under the Canada
Elections Act.74
The restriction also provides factors a court may use to
determine whether the offense has been committed, including whether
the material contained a name, logo, or domain name that is “distinctive
and commonly associated with” the Chief Electoral Officer, political
party, or candidate.75
The prohibition exempts parody and satire.76
The second legal mechanism to combat disinformation is the prohibition
on publishing false statements to affect election results. The Elections
Modernization Act made significant amendments to an existing
prohibition in Section 91 of the Canada Elections Act. As revised by the
Act, Section 91 prohibits a person with the intention of affecting the
72
Hasen, supra note 1, at 14.
73
Canada Elections Act, S.C. 2000, c 9, s 481, as amended by Elections
Modernization Act, S.C. 2018, c 31, s 323 (Can.).
74
Canada Elections Act, S.C. 2000, c 9, s 480.1 (Can.), as it appeared on January 18,
2019.
75
Canada Elections Act, S.C. 2000, c 9, s 481, as amended by Elections
Modernization Act, S.C. 2018, c 31, s 323 (Can.).
76
Canada Elections Act, S.C. 2000, c 9, ss 480.1(2), 481(3) (Can.).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 655
results of an election from making or publishing during the election
period (1) a false statement that a candidate, prospective candidate,
party leader, or public figure associated with a party has committed a
federal or provincial offense (or has been charged with or is under
investigation for an offense) and (2) a false statement about the
“citizenship, place of birth, education, professional qualifications or
membership in a group or association” with respect to a candidate,
prospective candidate, party leader, or public figure associated with a
party.77
The previous version of Section 91 prohibited persons from
knowingly making any false statement of fact relating to a candidate or
prospective candidate’s “personal character or conduct” with the
intention of affecting the results of an election.78
The revised version
removes the word “knowingly” from Section 91, thereby broadening the
scope of the restrictions. The revised version has also been expanded to
include statements about the leader of a political party or a public figure
associated with a political party. At the same time, the revised version
significantly narrows the type of content covered from false statements
about “personal character or conduct” to false statements about an
itemized list of basic facts. The Elections Modernization Act also
revised Section 92, which originally forbade any person from
“knowingly” making false statements that a candidate has withdrawn
but which was revised to exclude the word “knowingly.”79
These two government measures—the prohibition on misleading
publications and the prohibition on false statements—raise
constitutional concerns. In R. v. Zundel, the Supreme Court of Canada
affirmed that false speech is constitutionally protected under section
2(b) of the Charter. The court struck down a provision of the Criminal
Code which prohibited the publication of false information or news.80
The defendant had been convicted for violating this false news provision
77
Elections Modernization Act, S.C. 2018, c 31, s 61, amending Canada Elections
Act, S.C. 2000, c 9, ss 91, 92 (Can.).
78
Canada Elections Act, S.C. 2000, c 9, s 91 (Can.) as it appeared on January 18,
2019.
79
Elections Modernization Act, S.C. 2018, c 31, s 61, amending Canada Elections
Act, S.C. 2000, c 9, s 92 (Can.).
80
R. v. Zundel, [1992] 2 S.C.R. 731 (Can.).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 656
due to his publication of a booklet espousing denial of the Holocaust.81
The court rejected the idea that deliberate lies can never have social
value, and noted the difficulty in determining whether some statements
are true or false.82
Despite the holding in Zundel, the Supreme Court of
Canada has generally been more receptive to restrictions on speech as
compared to the U.S. Supreme Court. For instance, the Supreme Court
of Canada upheld the constitutionality of restrictions on speech such as
pornography, hate speech, and commercial speech. In general, if the
restriction is minimally impairing, and if the salutary effects of the law
outweigh the deleterious effects, a court is likely to find the restriction
on speech to be justified. Crucially, for the two false election speech
measures at issue, the court has also upheld the constitutionality of
campaign finance regulations.83
In addition, the court upheld a
regulation which prohibited the publicizing of election results from
some electoral districts before polls had closed in others.84
While the
court subjects restrictions on the right to vote to rigorous scrutiny, it
tends to be deferential to Parliament when it comes to many of the rules
that govern the electoral process.85
With respect to the restriction on misleading publications, a court is
likely to find that the regulation violates the freedom of expression but
is nonetheless justified under section 1 of the Charter. The ban on
misleading publications applies only to publications which purport to be
published by Elections Canada, a political party, or a candidate. It
applies only during the election period and it exempts parody and satire.
The restriction is narrowly drawn to prevent misinformation that could
mislead voters and undermine public confidence in the integrity of the
electoral process.
81
Id.
82
Id.
83
Harper v. Canada, 2004 SCC 33, [2004] 1 S.C.R. 827 (Can.).
84
R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527 (Can.).
85
See Yasmin Dawood, Democracy and the Right to Vote: Rethinking Democratic
Rights Under the Charter, 51 OSGOODE HALL L.J. 251 (2013); see also Yasmin
Dawood, Electoral Fairness and the Law of Democracy: A Structural Rights
Approach to Judicial Review, 62 U. TORONTO L.J. 499 (2012).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 657
The prohibition on false statements, however, presents a closer case. Its
constitutionality has been recently challenged in court.86
A central
question is whether the Supreme Court’s decision in R. v. Zundel, the
false speech case discussed above, can be distinguished. One important
distinction is that the prohibition at issue in Zundel was very broad since
it banned “false statements deemed likely to injure or cause mischief to
any public interest.”87
By contrast, the revised Section 91 is far narrower
in scope. It only covers, in the context of an election, false statements
about a limited range of topics: citizenship, place of birth, education,
professional qualifications, membership in a group or association, and
the commission of an offense (or being charged with or under
investigation for an offense). It is even narrower than the previous
version of Section 91, which forbade false statements about the
candidate’s personal character or conduct. Indeed, the Commissioner of
Canada Elections Yves Côté, when testifying before the Senate in
November 2018, described the revised version of Section 91 as
“unnecessarily restrictive” because it no longer covered a wide range of
false statements.88
In addition, the restriction only applies during the
election period, further limiting its impact on free expression. That
being said, the revised Section 91 no longer requires that the false
statement be made “knowingly,” thereby broadening the scope of
affected speech. While it is difficult to prove that a person knew a
statement was false, removing the knowledge requirement means that
the innocent replication of a false statement, such as by sharing it over
social media, could also amount to a publication of that statement under
Section 91. Even though it is highly unlikely that Section 91 would be
enforced in such situations, there is no explicit exemption for innocent
86
A Charter challenge has been filed against Section 91 on the basis that it violates the
Charter’s protection of freedom of expression under section 2(b). See Canadian
Constitutional Foundation v. Attorney General of Canada, Notice of Application filed
in the Ontario Superior Court of Justice, Docket CV - 1900627380 (Sept. 13, 2019).
The Ontario Superior Court declined the Canadian Constitution Foundation’s
application to have the issue determined on an urgent basis during the election period
of the 2019 federal election. See Canadian Constitution Foundation v. Canada
(Attorney General), 2019 ONSC 5795, at para. 8. As of this writing, the case has yet
to be heard.
87
Zundel, [1992] 2 S.C.R. at 743.
88
Canada, Parliament, Debates of the Senate, 42nd Parl, 1st Sess, Vol 150, No 244 at
6725 (Nov. 6, 2018) (statement of Comm’r of Can. Elections Yves Côté),
https://sencanada.ca/en/content/sen/chamber/421/debates/244db_2018-11-06-e#52.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 658
errors. The lack of a knowledge requirement is partially offset by the
requirement that the person making the false statement intends to affect
the results of the election. Unlike the ban on misleading publications,
however, the prohibition on false statements lacks exemptions for satire
and parody. In addition, the revised Section 91 includes false statements
made about public figures “associated with” a party, which could in
theory cover any public figure whose political affiliation is a matter of
public record.
On the other hand, a court could be persuaded that the prohibition is a
necessary protection against the harm of false election information.
Electoral disinformation disseminated through social media could
seriously undermine the fairness and integrity of an election, and by
extension, could destabilize public confidence in the election. Like the
ban on misleading publications, the prohibition on false statements is
meant to prohibit a constrained subset of fake news that could mislead
voters about essential information necessary for informed voting. The
measure does not prohibit false statements about the vast majority of
political issues at stake in an election, which mitigates to some degree
concerns about the prohibition’s chilling effect on speech. The fact that
the prior version of section 91, which was broader in its reach, had
already been in operation likewise mitigates such concerns. As revised,
Section 91 focuses on certain basic facts about a candidate, such as
citizenship and place of birth, which are verifiable and therefore raise
fewer thorny questions about the definition of “false” speech. Given
current concerns about disinformation and foreign interference, a court
could find that the main thrust of Section 91 is constitutional but it
would likely only do so while simultaneously reading in exemptions for
innocent errors, and for satire or parody, in addition to excluding the
provision’s application to public figures associated with a party.
Alternatively, a court could issue a suspended declaration of invalidity
to enable the government to include such exemptions and tailor the
scope of the prohibition. Because it is a close constitutional question,
much will ultimately turn on the sufficiency of the government’s
evidence not only with respect to the harm of disinformation in general
but also with respect to the narrower issue of the harm caused by false
statements concerning certain basic facts about candidates and party
leaders.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 659
b. Content-Based Self-Regulation
In many liberal democracies, online platforms engage in the selfregulation
of user-generated content.89
The platforms are incentivized
by statutory limited liability regimes under which intermediaries are not
held responsible for third party content.90
In exchange for the limited
liability, online platforms are asked to cooperate with government
requests to remove illegal content.91
Content removal regulation broadly
follows a notice-and-takedown approach rather than requiring platforms
to monitor content on an ongoing basis. Online platforms, however, are
increasingly seeking out and removing certain types of content.
Typically, content filtering is restricted to extremist and terrorist
speech.92
Facebook is developing technology, including artificial
intelligence, to proactively remove content such as nudity and graphic
violence, hate speech, fake accounts, spam, and terrorist propaganda.93
Online platforms also vet paid political content, although they do so
without significant accountability or transparency.94
However, Mark
Zuckerberg announced in October 2019 that Facebook would not police
89
See Kate Klonick, The New Governors: The People, Rules, and Processes
Governing Online Speech, 131 HARV. L. REV. 1598 (2018) (arguing that private
content platforms are systems of governance); see also Persily, supra note 2, at 74
(arguing that online platforms are the “new intermediary institutions for our present
politics”).
90
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, THE ROLE OF
INTERNET INTERMEDIARIES IN ADVANCING PUBLIC POLICY OBJECTIVES 75 (2011). In
Canada, the Supreme Court upheld the innocent dissemination defense for online
platforms. Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269 (Can.).
91
See Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private
Governance, and New School Speech Regulation, 51 U.C. DAVIS L. REV. 1149, 1179
(2018) (noting that governments “aim at infrastructure providers in order to get them
to censor or regulate the speech of people that governments cannot easily otherwise
control”).
92
Klonick, supra note 89, at 1638.
93
Guy Rosen, F8 2018: Using Technology to Remove the Bad Stuff Before It’s Even
Reported, FACEBOOK NEWSROOM (May 2, 2018),
https://newsroom.fb.com/news/2018/05/removing-content-using-ai/
[https://perma.cc/BNZ9-47HK].
94
Daniel Kreiss & Shannon C. McGregor, The “Arbiters of What Our Voters See”:
Facebook and Google’s Struggle with Policy, Process, and Enforcement Around
Political Advertising, 36 POL. COMM. 499, 500 (2019).
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 660
political advertising on the grounds that tech companies should not be
monitoring political content, even if the content contains false claims.95
Although online platforms initially resisted the idea that misinformation
spread through their platforms could sway election results, they have
since taken steps to address election interference.96
As discussed above,
Facebook established an Ad Library to comply with the digital registry
requirements of the Elections Modernization Act.97
In 2017, Facebook
launched the Canadian Election Integrity Initiative.98
The initiative
includes a digital news literacy campaign, a crisis hotline for politicians
and political parties whose accounts are hacked, and a “cyber hygiene”
guide for Canadian politicians.99
The objective of the cyber hygiene
guide is to provide politicians with information on cyber threats and
social media security management.100
In June 2018, Facebook launched
third-party fact-checking with an international certified fact-checker,
Agence France-Presse (AFP).101
AFP fact-checkers review news
stories, photos, and videos and rate them for accuracy.102
Facebook
reduces the distribution of stories that are rated “false” and it also
informs those who have already shared the false story that there is
95
Facebook Has No Business Policing Political Speech, Zuckerberg Argues, CBC
NEWS (Oct. 17, 2019, 12:35 PM), https://www.cbc.ca/news/technology/zuckerbergfacebook-free-speech-1.5324440
[https://perma.cc/7D45-LDU5].
96
Persily, supra note 2, at 73.
97
Facebook Launches Ads Transparency Tools in Canada Ahead of 2019 Federal
Election, CISION, (June 10, 2019), https://www.newswire.ca/news-releases/facebook-
launches-ads-transparency-tools-in-canada-ahead-of-2019-federal-election-
807760417.html [https://perma.cc/F9G4-3FDJ].
98
Rahul Kalvapalle, Facebook Canada Unveils Plan to Fight Fake News, Hacking in
Lead-up to 2019 Election, GLOBAL NEWS (Oct. 19, 2017),
https://globalnews.ca/news/3814648/facebook-canadian-election-integrity-initiative/
[https://perma.cc/R245-UK9E].
99
Id.
100
Cyber Hygiene Guide: Politicians and Political Parties, FACEBOOK CANADA
(2017), http://facebookcanadianelectionintegrityinitiative.com/files/Cyber-HygieneReport-en-ca.pdf
[https://perma.cc/4QTY-GTC5].
101
About This Project, FACEBOOK CANADIAN ELECTION INTEGRITY INITIATIVE,
http://facebookcanadianelectionintegrityinitiative.com/about.html
[https://perma.cc/CL66-7KJU].
102
Id.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 661
additional reporting.103
If a Facebook page is a repeat offender,
Facebook will reduce the distribution of the page as a whole, and will
also prevent it from advertising or making money on the site.104
One
fact-checking AFP journalist has revealed that between 300 to 2,000
posts are flagged in Canada every day.105
A common category is fake
news about immigration, religion, or the current government.106
The impact of fact-checking is questionable. For example, Facebook’s
fact-checking program debunked a false story which claimed that 200
soldiers from Mali were sent to Canada and then disappeared.107
Although the false post was flagged by AFP’s Canada bureau, it
received 14,600 engagements on Facebook as compared to only 109
engagements for AFP’s fact-checking post.108
Facebook claims,
however, that false articles have dropped by 80% thanks to the factchecking
program.109
However, there is no independent verification
process. Critics have argued that Facebook should make its data
103
Aaron Wherry, Facebook’s Fake News Squad Comes to Canada – Just in Time
for 2019, CBC NEWS (June 27, 2018, 6:00 AM),
https://www.cbc.ca/news/politics/facebook-fact-check-canada-1.4722349
[https://perma.cc/8WBJ-RZXV].
104
Tessa Lyons, Hard Questions: How Is Facebook’s Fact-Checking Program
Working?, FACEBOOK NEWSROOM (June 14, 2018),
https://newsroom.fb.com/news/2018/06/hard-questions-fact-checking/
[https://perma.cc/66TG-58LM].
105
Meet the Montreal-Based Journalist Fact-Checking False News on Facebook,
CBC NEWS (Oct. 10, 2018, 2:16 PM),
https://www.cbc.ca/news/canada/montreal/fake-news-fact-checker-louis-baudoinlaarman-1.4857159
[https://perma.cc/58GA-T3LZ].
106
Id.
107
Louis Baudoin-Laarman, Non, 200 soldats maliens ne se sont pas “volatilisés
dans la nature” au Canada [No, 200 Malian Soldiers Did Not “Vanish into the
Wild” in Canada], AFP FACTUEL (Jan. 15, 2019, 1:59 PM),
https://factuel.afp.com/non-200-soldats-maliens-ne-se-sont-pas-volatilises-dans-lanature-au-canada
[https://perma.cc/XJ7Y-ASBN].
108
Daniel Funke, This Hoax Got 250 Times More Facebook Engagement Than Two
Fact Checks Combined, POYNTER (Jan. 23, 2019), https://www.poynter.org/fact-
checking/2019/this-hoax-got-250-times-more-facebook-engagements-than-two-factchecks-combined/
[https://perma.cc/KFB9-F968].
109
Wherry, supra note 103.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 662
publicly available so that there can be an independent assessment of the
impact of fact-checking on the prevalence of fake news.110
In addition to complying with the ad registry requirements, Twitter set
up a site integrity team to monitor the platform on a daily basis, and to
ensure the authenticity of tweets during the election period.111
In July
2019, Twitter announced that it was rolling out a pilot project in Canada
that would allow users to hide some responses on their tweets, with
readers needing to click on a feature to reveal them. While the hidden
replies would be available, they would not be included in the original
tweet thread.112
The objective of this feature is to give users greater
control over the debates prompted by their tweets.113
Twitter took other
steps to prevent disruption of the election, such as cracking down on
bots, and working with Elections Canada and the Commissioner of
Canada Elections.114
Critics contend, however, that Twitter had not
done enough to prevent abuse on its platform, including the use of
automated bots.115
While there are benefits to content-based self-regulation, a certain
amount of skepticism is warranted. It must be kept in mind, as Abby
Wood and Ann Ravel observe, that there is a conflict of interest at work
because online platforms are primarily motivated by a profit motive,
rendering them unreliable as self-regulators due to the revenue streams
generated by disinformation.116
Nor are online platforms reliable
defenders of democracy. As Nathaniel Persily argues, online platforms
“were not created principally to serve democratic values and do not have
as their lodestar the fostering of a well-informed and critically minded
electorate.”117
110
Id.
111
Thompson, supra note 51.
112
Elizabeth Thompson, Twitter Pilot Project Will Allow Canadians to Hide Replies
to Posts – to a Point, CBC NEWS (July 11, 2019, 10:34 AM),
https://www.cbc.ca/news/politics/twitter-canada-hiding-posts-1.5207923
[https://perma.cc/LAV2-MLCG].
113
Id.
114
Id.
115
Id.
116
Wood & Ravel, supra note 3, at 1237, 1245.
117
Persily, supra note 2, at 74.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 663
V. NORM-BASED INITIATIVES
The Canadian government has launched two norm-based initiatives to
address disinformation. These public-led initiatives identify standards,
best practices, and objectives to govern the digital world. The first
initiative is the Declaration on Election Integrity, a non-binding
document issued by the (now-abolished) Ministry of Democratic
Institutions and signed by several major online companies. The second
initiative, the Digital Charter, which was issued by the Ministry of
Innovation, Science and Economic Development, sets out ten principles
that will be used by the government to guide innovation and regulation.
The first initiative, The Declaration on Electoral Integrity, was
announced by the government in May 2018. It was designed “to help
combat the spread of misinformation in the run-up to the fall federal
election . . . .”118
Major companies, including Facebook, Microsoft,
Google, and Twitter, signed on to the Declaration.119
The Declaration
acknowledged the dilemma posed by social media, noting that while
social media plays “a meaningful role in promoting a healthy and
resilient democracy,” online platforms have also been “used to spread
disinformation in an attempt to undermine free and fair elections and
core democratic institutions and aggravate existing societal tensions.”120
The Declaration also stated that the government and online platforms
would work together to protect the upcoming election and “to support
healthy political discourse.”121
To this end, the Declaration identified
three pillars—integrity, transparency, and authenticity—with
corresponding objectives for each pillar.122
118
Josh O’Kane, Ottawa Asks Social Media Platforms to Combat Misinformation
Ahead of Election, GLOBE & MAIL (May 27, 2019),
https://www.theglobeandmail.com/business/article-ottawa-asks-social-media-tocombat-misinformation-ahead-of-election/
[https://perma.cc/22CM-7MB4].
119
Id.
120
Canada Declaration on Electoral Integrity Online, GOV’T CAN. (May 27, 2019),
https://www.canada.ca/en/democratic-institutions/services/protectingdemocracy/declaration-electoral-integrity.html
[https://perma.cc/C43S-CHRV].
121
Id.
122
Id.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 664
With respect to integrity, online platforms committed to intensify their
efforts to combat disinformation and promote transparency while
keeping Canadians informed about their “efforts to safeguard the
Internet ecosystem.”123
They would also apply their most effective tools
to protect democratic processes and institutions, in particular with
respect to cybersecurity incidents, the protection of privacy, and the
protection against the misrepresentation of candidates, parties, and
electoral officials.124
With respect to transparency, online platforms
committed to ensure transparency for regulated political advertising,
and to ensure that their terms and conditions are easily accessible and
fairly enforced. As for authenticity, online platforms pledged to remove
fake accounts and inauthentic content on their platforms, block and
remove malicious bots, and help users understand the sources of
information.125
For its part, the government committed to provide online
platforms with points-of-contact for election-related matters, and the
public with clear and impartial information on any cyber incidents. It
also pledged to promote information sharing that could help to identify
and thwart malicious actors.126
Both the government and online
platforms committed to work with civil society and educational
institutions to support efforts to improve digital literacy and
cybersecurity practices.127
A year later, in May 2019, the federal government announced a second
initiative, the Digital Charter.128
The purpose of the Digital Charter is to
modernize the regulatory framework for the digital sphere while
rehabilitating citizens’ trust in the digital landscape. The Charter
identifies ten principles which will provide a framework for harnessing
the power of digital transformation while protecting citizens’ privacy.129
123
Id.
124
Id.
125
Id.
126
Id.
127
Id.
128
Press Release, Innovation, Sci. & Econ. Dev. Can., Gov’t Can., Minister Bains
Announces Canada’s Digital Charter (May 21, 2019),
https://www.canada.ca/en/innovation-science-economic-
development/news/2019/05/minister-bains-announces-canadas-digital-charter.html
[https://perma.cc/9KNN-4FQ8].
129
Id.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 665
The ten principles of the Charter are: universal access; safety and
security; control and consent; transparency, portability and
interoperability; open and modern digital government; a level playing
field; data and digital for good; strong democracy; freedom from hate
and violent extremism; and strong enforcement and real
accountability.130
Although the Digital Charter does not have legal
force, the government indicated that it would aim to introduce new
legislation after the 2019 federal election.131
While both the Declaration on Electoral Integrity and the Digital Charter
are publicly-led initiatives, the Declaration on Electoral Integrity has the
advantage of also being privately endorsed by online platforms. The
main drawback to a norms-based approach, however, is that it relies on
large social media platforms to do the right thing rather than requiring
them to do so. That being said, there is value to the Declaration on
Electoral Integrity and the Digital Charter because they establish
democracy-enhancing norms which will help to guide actions or at the
very least will provide a standard by which to judge actions taken or not
taken. Not only do norms play a crucial role in regulating democratic
practices, they also have the potential of being adopted at some point as
mandatory regulations.
VI. MEDIA LITERACY AND CITIZEN EDUCATION
Prior to the 2019 federal election, the Canadian government announced
funding of $7 million under the auspices of the Digital Citizen Initiative
to promote digital media literacy.132
The literacy program would be
130
Canada’s Digital Charter: Trust in a Digital World, GOV’T CAN.: INNOVATION,
SCI. & ECON. DEV. CAN., https://www.ic.gc.ca/eic/site/062.nsf/eng/h_00108.html
[https://perma.cc/8VKP-5TNL] (last modified June 25, 2019).
131
Josh O’Kane & Tamsin McMahon, Ottawa Launches Data Strategy, Eyes Fines
Tied to Tech Giants’ Revenue, GLOBE & MAIL (May 21, 2019),
https://www.theglobeandmail.com/business/technology/article-ottawa-launches-newdigital-charter-to-protect-canadians-personal/
[https://perma.cc/6CLS-YY9S].
132
Press Release, Canadian Heritage, Gov’t of Can., Helping Citizens Critically
Assess and Become Resilient Against Harmful Online Disinformation (July 2, 2019),
https://www.canada.ca/en/canadian-heritage/news/2019/07/helping-citizens-
critically-assess-and-become-resilient-against-harmful-online-disinformation.html
[https://perma.cc/4UWQ-9ZW2].
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 666
provided through third-party educational activities. The objective is to
enhance the resilience of citizens against online harms by giving them
the tools to critically assess online information, to recognize malicious
interference, to avoid online manipulation, and to engage effectively in
public debate.133
A second investment of almost $20 million has been
earmarked for a new Digital Citizen Research Program to address online
disinformation and its impact on society.134
Elections Canada also took steps to ensure that Canadians have access
to reliable information in the lead-up to the 2019 federal election. It
provided information on how to register, vote and be a candidate
through a multimedia information campaign. Elections Canada also
monitored the information environment to keep tabs on incidents that
could undermine the administration of the election and on inaccurate
information that could confuse people or prevent them from voting. In
addition, the agency committed to take active steps to correct any false
information about the electoral process, in particular with respect to fake
accounts impersonating Elections Canada.135
Various jurisdictions have invested in media literacy. For example,
Finland, Sweden and the Netherlands teach school children digital
literacy and fact-checking methods to detect misinformation.136
California passed a law in 2018 that requires the Department of
Education to provide media literacy resources on its website.137
133
Id.
134
Id.
135
How Elections Canada Contributes to Election Security, ELECTIONS CAN. (Apr. 9,
2019),
https://elections.ca/content.aspx?section=vot&dir=bkg/sec&document=legal&lang=e
[https://perma.cc/56Y4-EWJ7].
136
Emma Charlton, How Finland Is Fighting Fake News – in the Classroom, WORLD
ECON. F. (May 21, 2019), https://www.weforum.org/agenda/2019/05/how-finland-isfighting-fake-news-in-the-classroom/
[https://perma.cc/W3UR-ES4D].
137
Marissa Melton, California Joins Other States in Passing New Media Literacy
Law, VOICE AMERICA (Sept. 23, 2018, 6:30 AM),
https://www.voanews.com/usa/california-joins-other-states-passing-new-medialiteracy-law
[https://perma.cc/69Y8-PNBC].
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 667
Connecticut, Rhode Island, New Mexico, and Washington state have
also passed legislation relating to media literacy education in schools.138
In addition, online platforms have adopted media literacy programs. In
2017, Google announced that it would be providing $500,000 for media
literacy training aimed at Canadian elementary and high school
students.139
The program was further expanded in May 2019.140
For the
2019 election, Google launched a dedicated channel on its YouTube
platform to highlight “authoritative” news coverage of the campaign.141
It pledged that it would not attempt to balance stories in terms of their
political leanings or coverage of the parties.142
Facebook recently
launched a two-year partnership with MediaSmarts in order to promote
media literacy.143
The main drawback to citizen education and media literacy initiatives is
that they are not on their own sufficient to address the problem of
disinformation. Furthermore, these efforts do not lead to the education
of the majority of the population. That being said, these educational
efforts are preferable to a state of affairs in which neither the
government nor online platforms make media literacy a priority.
VII. CONCLUSION
This Article has argued for a multifaceted public-private approach to the
challenge of protecting the electoral process from the harms of
disinformation. Such an approach employs a suite of complementary
strategies—including disclosure rules, political ad registries, narrow
138
Id.
139
Is It Fake News? A New Program Aims to Enhance Media Literacy Among
Canadian Students, CBC NEWS (Sept. 19, 2017, 4:48 AM),
https://www.cbc.ca/news/canada/toronto/fake-news-students-media-literacy-
1.4297256 [https://perma.cc/QE7Z-QKAN].
140
Bill Curry, Google Sticking with Election Ad Ban, Will Launch Youtube Channel
to Highlight ‘Authoritative’ News Coverage of Campaign, GLOBE & MAIL (May 2,
2019), https://www.theglobeandmail.com/politics/article-google-sticking-withelection-ad-ban-will-launch-youtube-channel-to/
[https://perma.cc/G8HB-3NEB].
141
Id.
142
Id.
143
See About this Project, supra note 101.
Electronic copy available at: https://ssrn.com/abstract=3589714
2020] DAWOOD 668
content-based regulations against false election speech, self-regulation
by online platforms, norm-based initiatives, civic education, and media
literacy. It also deploys a mix of regulatory styles, including legal
regulation, self-regulation, and co-regulation. This Article has shown
how the approach in Canada is multifaceted in both of these respects. In
addition to incorporating a wide range of tactics by both public and
private actors, the Canadian approach has adopted a mix of regulatory
styles. The Article also canvasses the advantages and drawbacks of each
individual tactic.
In addition, this Article has focused on the dilemma posed by protecting
the democratic process from disinformation while also protecting the
freedom of speech. It has argued that a multifaceted public-private
approach allows for the trade-off between disinformation and free
speech to be optimized. The combined and interactive effects of a
multifaceted approach provide helpful protections against some of the
harms of disinformation. More importantly, the adoption of these
multifaceted public-private strategies signals the importance of electoral
integrity to citizens thereby bolstering public trust in elections, a key
ingredient of long-term democratic stability.144
144
Wood & Ravel, supra note 3, at 1247 (noting that government regulation is
“symbolically important”).
Electronic copy available at: https://ssrn.com/abstract=3589714