The robocall rules (III)

by Aaron Wherry

In regards to the matter of the Valeriote campaign’s call, it is the Liberal side’s contention that robocalls do not qualify as advertising (and thus are not covered by Section 320 of the Elections Act). Here is how the Liberals explained the matter in an email bulletin this evening.

It is clear that so-called “robocalls” do not constitute “advertising”.

Elections Canada agreed with this assessment during the last election and posted this interpretation on its website:

“Elections Canada has taken the position that the prohibition (against Election Day advertising) does not extend to messages, whether live or automated, which are sent to a specific telephone or e-mail address.”

So while “advertising” is something that is broadcast, “robocalls” are targeted and are not subject to the same rules. While we don’t dispute that the Liberal automated call in Guelph should have more clearly identified its origin, it should not be used by the Conservatives or anyone else to muddy the waters and further confuse Canadians.




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The robocall rules (III)

  1. Ahhh good…an anti-mouse ruling.

    • Still haven’t heared from the CRTC which has its own rules requiring calls be identified.

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  2. George Bush ~ He can’t take the high horse and then claim the low road

    • George Bush ~ Is our children learnin.

      • No, they aren’t. They are getting stupider.

        “It is wonderful to be back in Oregon,” Obama said. “Over the last 15 months, we’ve traveled to every corner of the United States. I’ve now been in 57 states? I think one left to go. Alaska and Hawaii, I was not allowed to go to even though I really wanted to visit, but my staff would not justify it.”

        • The state of denial?  The state of exhaustion?  The state of delusion?  Come on, we can get it up to sixty, easy.

  3. Heh. Good luck with that hair-splitting.

  4. Interesting.  If it’s an accurate representation have to admit I would like to see this rule altered so that robocalls cannot be used on election day.

    • They really need to change that section of the Elections Act, if this is true.  It’s pretty clear to any fair-minded individual that robocalls from a campaigning politician are advertising, no matter what legal gymnastics are applied.

  5. Andrew Coyne has some suggestions:
     
    “As I say, we’ve all grown used to this, conditioned to think of it as part of the political game. Reporters write admiring profiles of the strategists behind the campaigns, who modestly boast of their prowess at “moving the numbers.” The voting public are invariably described in such logistical terms, as if we were so many packages to be delivered.
     
    I get why the parties think this way. What I don’t get is why the rest of us should: why we should consent to being treated in this condescending, manipulative way — still less why we should help the parties do it. Yet the reality is that this sort of campaigning could not be conducted without the collusion of the state, of the government that belongs to us. It is time it stopped.
     
    The parties could not conduct these massive phone campaigns, for starters, if Elections Canada did not make available to them its list of registered voters. It did not always do so. It should stop.
     
    They could not do so, likewise, had they not arranged to exempt themselves from the “do not call” lists to which private telemarketers are subject. Neither could the parties maintain quite such sophisticated voter databases had they not also exempted themselves from the relevant privacy laws. Both of these privileges should be withdrawn.”
     
    http://fullcomment.nationalpost.com/2012/03/12/andrew-coyne-robocalls-arent-the-problem-the-way-parties-treat-voters-as-prey-is/ 

    •  “The parties could not conduct these massive phone campaigns, for starters, if…”

      I can’t figure out if Coyne is deliberately throwing out a red herring, or if he really believes that the issue here is political communications delivered by telephone.

      For those who have lost track, the problem here is that some people tried to trick thousands of Canadians and deprive them of their opportunity to vote. This was accomplished by telephone in many cases, but also by mail (see the testimony regarding counterfeit Elections Canada notice claiming a change in polling location).

      As long as we have an organized national campaign of fraud and voter suppression, I don’t have moment’s patience for people who would rather change the topic.

      • Yes, TJ, the important thing is getting out the message that Conservatives are Evil.  Everything else is irrelevant and must be ignored.

        • Read my post again – I didn’t say anything about the Conservatives. We don’t have all the information yet and can’t jump to conclusions about who has committed this fraud.

          Nice try. Actually no – that was a lame try.

          • Right – here you say “we don’t have all the information yet”, as though you’re just some well meaning civic-minded person who just wants to get to the bottom of the facts.  Then in your post above, you talk about “an organized national campaign of fraud and voter suppession”, as though that’s a proven fact.  Fact is, there is no proof yet of that.  Especially the “national” part.  So you show yourself for the sheer partisan that you are.  Spare me.

          • So now it’s not enough not to jump to conclusions. Simply describing the crime is sufficient to make me a “sheer partisan.”

            It’s hard to accept that I’m the partisan here as long as you’re up on the cross wailing about Conservative blood on the floor.

            Get a grip. We have reports from all over the country of voters being contacted and lied to about their polling location. The script is consistent, the tactics are consistent. It defies belief that this fraud took place in dozens of ridings with no coordination.

            Proof? I’ve heard recordings of phony Elections Canada calls, and so have you. And I’ve heard/seen/read the testimony of Canadians all over the country describing the same experience. And so have you.

            But you demand that nobody point out what has already been demonstrated – because it makes the Cons look bad, and is therefore a left-wing lie.

            Look, I’m willing to wait and see how much coordination happened, and at what level. And I’m not racing to assign blame. But don’t expect me to deny what’s right in front of my eyes, and don’t insult me because I’m pissed off that somebody is f*cking with the fundamental fairness of our democracy.

          • TJ, to be fair, I suppose all the noise and hyperbole has made me tune out to a fair extent.  It’s not like I’ve carefully catalogued all the allegations, etc.

            I absolutely agree with you that there’s no doubt something bad, unethical and illegal went on somewhere.  On the “where there’s smoke there’s fire” principle, you have to believe that.

            I’m suspending judgement, though, on the degree of coordination and scope.  All we have are allegations at this point.  I agree that that could be the case.  We could have something national in scope, with significant coordination.  But I’m going to wait until we have a real smoking gun there, or an actual set of charges/allegations from Elections Canada to that effect.  To my knowledge, we don’t have that yet.

            I honestly don’t believe that it’s been helpful that there’s been so much exaggeration & hyperbole.  That kind of stuff makes people tune out.

          • Orson has trouble dealing with what people say, so he likes to engage in fantasy debate where he not only makes up what he’s going to say, but what you’ve said as well.

        • For goodness sake turn that old record over, you’ve just about worn out.

          Although i suppose Coyne has a point – remove the temptation and maybe you remove the problem? But judging by the noises coming out of the Manning conference that’s going to happen over someone’s dead body.
          But TJ also has a point. If the intent is there to game the system in a systematic manner in order to suppress the vote that should be thoroughly investigated; it is not as if our polity was rife with this stuff prior to the arrival of SH on the scene. 

          • I agree it should be thoroughly investigated, and any guilty parties charged and convicted.  That’s what I want.

            What the partisan Liberal hacks on this board want is Conservative blood on the floor, and they couldn’t care less about the facts.

          • I’ll take that as a complement; but i too want to see some CPC blood on the foor, but not at any price. Certainly not at the cost of my principles or the eventual truth such as it is.

          • Harper.  by using Dean Del Mastro set the tone for this – have you not seen his performances?

        • So, you are fine with suppressing the vote?

  6. So because there’s no prohibition on calls being made on election day (one can understand such a rule as it is a “get out the vote initiative”) the section regarding identifying one’s party need not apply?

    My how weak.  Indeed, it is more than weak, but laughable when one considers the actual wording in section 320 as requiring that the parties:

    “ shall mention in or on the message that its transmission”…is by that party. 

    “Transmitting” a “message” by robocall doesn’t require identification by that party?  An honest proviso to that exception would be ….”where the robocall is made by the Liberal party”. 

     What’s particularly galling is how, after weeks of lambasting the Conservatives where there was precious little evidence the party was guilty of anything, we now have those same people doing gymnastic contortions of interpretation in an effort to explain away what is clearly a direct violation of the Elections Act.

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    • “So because there’s no prohibition on calls being made on election day (one can understand such a rule as it is a “get out the vote initiative”)…

      … the section regarding identifying one’s party need not apply?”

      Complete and utter BS. The statement that it was wrong of the LPC is clearly there in the press release.[ not that is really an adequate excuse from what i've heard so far].

      “While we don’t dispute that the Liberal automated call in Guelph should have more clearly identified its origin,…”

      As for the evidence… PierrePoutine’s a start, no?

      up to your pld tricks again Kody/Biff…what’s your price this time?

  7. Well I’m glad Wherry has finally resorted to just posting LPC talking points now. Re-writing them must have been a terribly daunting task. I wonder if he had to take a class in Copying and Pasting in Journalism School.

    I’d love to hear Bob Rae try to explain to Canadians that those annoying phone calls aren’t advertisements at all. I’m thinking outside of the usual trolls here, not a single free thinking Canadian would buy this flimsy explanation.

  8. So I found where EC talks about this on its website. It’s here. See section 3.5.3, almost 1/2 way down the page. Emphasis is mine.

    During the election, Elections Canada considered the extent to which section 323 of the Canada Elections Act
    prohibits election advertising on election day.
    Among the other
    exceptions to the prohibition in subsection 323(1) that are set out in
    subsection 323(2) and section 324 of the Act, this prohibition does not
    extend to messages, whether live or automated, that are sent to a
    specific telephone or e-mail address.

    I don’t think the Liberal explanation applies. The EC ruling is talking only about exceptions to the blackout of election day advertising (section 323 of the act). It makes no mention of section 320, nor does it claim anywhere that telephone messages do not count as “advertising”. All it says is that the only type of advertising you are allowed to do on Election Day is phone calls and emails to a single address.

    The explanation doesn’t apply because these robocalls were sent before Election Day, as per the twitter feed of Andrew Prescott who was tweeting about these calls a few days before election day. Therefore, section 323 does not apply.

    This is what the Elections Act describes as “advertising”, in section 319 of the Act. There is no exception for telephone calls.

    “election advertising” means 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 one that takes a position on an
    issue with which a registered party or candidate is associated. For greater certainty,
    it does not include

    (a) the transmission to the public of an editorial, a debate, a speech,
    an interview, a column, a letter, a commentary or news;(b) the distribution of a book, or the promotion of the sale of a book,
    for no less than its commercial value, if the book was planned to be made available
    to the public regardless of whether there was to be an election;(c) the transmission of a document directly by a person or a group to their
    members, employees or shareholders, as the case may be; or(d) the transmission by an individual, on a non-commercial basis on what
    is commonly known as the Internet, of his or her personal political views.

    Aaron, you can expect a bill to be forthcoming for my research services.

    • hmmm, did you find the rider that allowed Harper to campaign on election day by any chance? [Not that i know one way or the other, but it did come up on the other blog earlier today].

      • Sorry kcm2, I don’t know what you’re talking about.

        • You were right there.[ i was being facetious]

          usedtobecatherineCollapse

          And what would that be? Stephen Harper personally campaigning on election day and asking, on national radio, people to vote for his party was also illegal and against the law. Maybe Stephen Harper should also accept the appropriate penalty along with Valeriote. I can assure you that whatever penalties those are, they do not involve a prison term or the need for new elections, as the illegal robocalls that people have been focussing on could.

          Basically, I’m giving Stephen Harper a personal pass (and I don’t even like the guy, don’t respect him and don’t trust him) because there are much bigger, much more important, election fraud issues relevant to the 2011 election and I’d like to see those addressed. I wish we lived in a country where all we had to worry about was whether our Prime Minister made made a last minute, but illegal, solicitation for votes for his party and whether an MP didn’t identify his campaign on an issue based robocall. Sadly, we do not live in that type of country. We live in a much, much worse one.

          • Ah, OK…well, there is no advertising allowed on election day…but in the list of exceptions as to what constitutes “advertising” (see above) you’ll note that speeches and interviews don’t count as advertising. So if Harper is being interviewed on the radio, I don’t know of any EC law that prevents that, even on election day. Not saying there isn’t one, but the ones we’re talking about w.r.t. advertising don’t apply there.

      • Here’s the youtube, where at the end Harper asks Canadians to vote for the Conservative Party and then there is a discussion of how this breaks the law.

        http://www.youtube.com/watch?v=KrT8K49fyuo

        This is a very minor offence compared to the illegal robocalls in multiple ridings trying to suppress the vote of Liberals and NDP.

        • I watched the video. Nobody identifies a single illegal thing Harper did. The radio guy said “we only don’t broadcast partisan advertising on election day”. And as shown above, “interviews”, which this clearly was, are explicitly exempt from being called advertising.

          If you can find another section of the Elections Act that this election day interview violates, I invite you to try. But I can pretty much categorically state that there was no violation of section 323 here because an interview does not count as advertising, as stated in section 319 of the Act. And you’ll forgive if I don’t take the word of Michael Byers on this.

          “election advertising” means 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 one that takes a position on an issue with which a registered party or candidate is associated. For greater certainty, it does not include

          (a) the transmission to the public of an editorial, a debate, a speech,
          an interview, a column, a letter, a commentary or news;

    • What specifically did Prescott report about those tweets? Did he make specific reference to the content?

      • No. He just called them “voter suppression robocalls”. His twitter handle is @Christianconsrv:disqus …you can see for yourself.

        His tweets from late April until election day are actually recommended reading for anyone looking for a full picture of the overall dirtiness of the Guelph campaign. Notably, he put on his twitter feed that on election day conservative supporters were being heavily targetted by fake polling station change robocalls and that they had to get out a message to their supporters that the calls were fake. Does making this kind of information public sound like the actions of a campaign knowingly trying to hide voter suppression activity?

        I don’t agree that these Liberal robocalls rise to the level of “voter suppression”, they are just not sufficiently identified, so I’m in agreement with you that a fine should be paid and case closed. But it’s clear that these are the calls he’s referring to, as he recently thanked Valeriote in his twitter feed for owning up to the robocalls he had been referring to.

        • In answer to your question “yes”.  That doesn’t mean he is guilty, but it does raise suspicion.  He seems to have been quick out of the gate in identifying voter suppression robocalls, before or as they were first happening, and his claim that they spoofed his own campaign’s phone is not backed up with any evidence, but again, suggests he was trying to cover any voter suppression phone calls that might be traced to his campaign.  NOTE:  there is a phone number attached to Valeriote’s calls and it definitely is not Prescott’s campaign number.  There is no way Valeriote’s calls match the information given in Prescott’s tweets and him now trying to imply they do just makes him look much more suspicious.  Add to this the fact that his Racknine expenses were never reported and only discovered through EC’s investigation into the illegal robocalls, it does not look good.  Then, Prescott appears to have stopped cooperating with EC.

          Furthermore, just as things were heating up for Prescott and he was taking a lot of heat on the above, Meier throws in this leak about an IP address, some mysterious source announced PP will come forward, and now a “senior Conservative” is pointing the finger at Sona all while Sona is denying and sources close to Sona saying the CPC is trying to pin it on Sona and he is not going to take it.  The CPC has been in overdrive trying to change the message away from Prescott’s suspicious tweets and absence of Racknine reporting.

          • Well, hang on. You’re not making much sense. Remember that Prescott is talking about 2 different types of calls:

            1) The ones failing to identify themselves with the abortion message
            2) Fake polling station changes

            It’s the second of these calls that he claims is using spoofed caller ID to finger the Conservatives, not the first.

            As to not being backed up with evidence…c’mon. Nothing in this whole sordid affair is backed up with evidence. It’s fair to take his word with a grain of salt but you should be prepared to do so for every unsubstantiated report.

            He didn’t stop cooperating with EC…he stopped cooperating with McMaher, who he (I would say correctly) believes is trying to pin the whole thing on him.

            And if they were really trying to draw attention away from Andrew’s twitter feed…don’t you think they’d have had Andrew delete the offending tweets at the first sign of trouble heading their way?

          • I thought he spoke to EC by phone, but then refused to meet with the investigator on the advice of his lawyer.  Are you saying he has now met with EC?

          •  @JanBC:disqus

            That doesn’t ring a bell, but you may be right. I stand to be corrected. Got a source?

        • It is equally possible that if the Cons were sending out voter supression calls claiming to be Liberals, sending out these tweets would be clever, no? 

  9. I would like to remind everyone that this baiting of other commentors will not be tolerated. I will be deleting entire threads and wasting all of your precious commenting time if I see people targeting and attacking other commentors.

    If you see someone being a jerk, flag the post and I’ll try and delete it as soon as I can, thanks.

    • Like * 10000 (have to outbid Matlock)

      • Haha, I’ll let you have it.

    • Like * 2000.

    • How do you define baiting?

      • Baiting, Trolling, Name calling. If you want to argue against someone else’s opinion that’s fine, but do it with facts. I don’t want to see a back and forth thread that sounds like an argument I would hear out of an old married couple. We’re all adults here, lets act like it.

  10. Seems like a tenuous defense. 

    Section 319 of the Elections Act defines “advertising” as ”the transmission to the public BY ANY MEANS [emphasis added] during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.”

    On it’s face that’s very broad language and would appear to catch mass robocalls to the public.  There may be a distinction if you’re sending out a message to a smaller subset of people, say party members, or campaign workers, who you might be able to say aren’t “the public”.   But a broad-based robocall to the public at large seems to be caught both by the language and spirit of this provision.    

    That said, failing to tag a message with your campaign name is a pretty mickey-mouse violation of the Election Act, still people in glass houses… 

  11. Elections Canada has rejected the Liberal’s explanation.

    The Liberals argued Elections Canada had decided robocalls don’t
    constitute advertising, but a  spokesman for Elections Canada said
    Tuesday they do count. The exclusion for direct calls and emails was to allow the parties to
    contact voters on election day, but “it does not affect the  provisions
    under Sec. 319 or 320,” which mandate that advertising must include a
    tag that identifies which campaign paid for it. “Therefore while automated or live calls would be permitted on e-day,
    if they meet the definition of election advertising, the messages must
    nevertheless be tagged and reported in the election expenses reports,”
    John Enright said in an email to CBC News.

     

    • That makes sense, although the Elections Canada statement is less definitive than it seems, since it says that the rules apply if calls “meet the definition of advertising”, without concluding that they do.  Since that’s at the heart of the question, the Elections Canada statement is a non-statement.  Still, I think you’re right that the law is fairly clear on the point

      John, I note that the quote from Elections Canada that you citedearlier which suggested that there was an exemption for telephone calls on election day, appears to have related to the 2006 election.  That the statement doesn’t appear more recently, suggests that Elections Canada may have changed their mind on the intepretation (rightly so). 

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