Thursday, October 16, 2008

Web Media and Election Results Blackouts

It's election night in Canada. The polls have just closed in Newfoundland and Labrador. The first results come in the CBC anchor desk on live tv, and someone is leading, then another. As you are watching, the phone rings. It's a relative from Alberta calling to chat about the election. They casually ask how it's looking in Newfoundland so far. You tell them what you see. As soon as you hang up you hear a new email alert on the laptop. It's a friend from Vancouver inquiring about how people are voting in Newfoundland and Labrador. You tell them the up to the minute results flashing on live tv.

Thousands of Canadians keep in touch with each other every hour of every day from coast to coast. They talk about anything and everything. But wait a minute, was it unethical to have told your friend or relation what the NL results were at this early juncture? Should you have withheld this innocuous piece of information? There may be a few 'yeses' but I'm guessing No. It's a free country to exchange conversation and discuss current events.

For those who are unaware of it, you might have broken the law by communicating election results to a friend in another Canadian time zone. While we in Newfoundland and Labrador are taking in the election results, people in other parts of Canada are blacked out by media. Media are forbidden to broadcast early eastern election results in places west of NL.

Later, on election night, I was contacted by Janice Neil of Ryerson University who was preparing an article on blackouts and blogging. Ms Neil is Assistant Professor in the School of Journalism at Ryerson and Ideas editor of J-Source. In her article yesterday, "Bloggers flout law", she states, "The Supreme Court of Canada upheld Section 329 of the Canada Elections Act last year, that imposes a blackout to try to prevent the posted results in the eastern time zones from influencing voters in the West."

This is Section 329 of the Canada Elections Act:
329. No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.

In 2000, blogger Paul Bryan deliberately broke that law and was charged for posting election results before polls closed in parts of Canada. He went to court, defended his freedom of expression and was acquitted. But in 2006, the decision was overruled, and the ban was back in place.

The question in today's ever growing sprawl of new technical gadgets and programs of communication is, is the election results blackout ban fair, antiquated, or irrelevant?

Is it fair for someone who is on Facebook to tell their western friends how the early election results are going, but possibly face criminal charges? (they might have 700 friends, and state in their status, "Only 9 Conservatives elected in Atlantic Canada", for all to see). Or is it fair for someone who is relaying the same information by phone, or by email to be charged (you could have 100 people on your email group list)? Is it realistic for even most people to be aware of such a law, especially younger users to know the difference when there are no obvious notices anywhere of Section 329 of the Elections Act? There are no flashing pop-up messages on election night warning users of Section 329 (maybe that's a high tech idea).

For many people election results nights are anticipated with the excitement of say a Stanley Cup hockey final. While you're watching it, a friend who is working late that night calls you up and asks you what the score is. You tell them "5 to 1 for the Maple Leafs" (use your imagination here). So it is easy to appreciate others' shared interest in an event.

On election results night Tuesday, a similar experience occurred with this blogger. An email arrived from someone in central Canada, though I had no idea of where the person was from at the time. They asked if any results came in yet - shortly after polls closed in NL. I obliged with a few early leads in NF ridings. Fifteen to 20 minutes later, the same inquirer asks for an update, and again I gladly supply the numbers as they appeared on tv. This was getting interesting, doing a favor for someone, a good feeling.

All the while my blog stats were rising as if there was something wrong with the counter. A closer look revealed that people from all over Canada were doing searches for NL election, or Atlantic Canada election results. In fact there were so many that it prompted the idea to do a quick new blog post on the very latest results.

Then the floodgates really opened, a barrage of hits, and a bunch of comments asking things only political junkies might. Realizing what a brief window of opportunity this specific time frame of being the information source was, I gave two more updates in the next half hour, about 10 minutes apart.

Any vague memory of hearing about Paul Bryan's case many years ago, was surely in my subconscious. His name would not have rang a bell at all. Even a subconscious memory of that probably did not dictate my actions possibly because it did not seem sensible, with all the forms of online communications - emails, Facebook, Twitter, chat programs, not to mention phones, text messaging, cell phones, etc., for posting a few Atlantic results to be worthy of a criminal act.

One of my response to Professor Neil's inquiry the other night was this: If the SCOC and Elections Canada really mean business and want to totally and fairly blackout all transmission of election results information from east to west, then they will have to cut the modern high tech lines of communication. They will have to contact internet programmers to find ways to block eastern web sites, blogs, email, chatting between east and west on Facebook, and other social networking programs, at specific times along the time zones, and also cut phone communication from people getting early results to those further west.

That's quite the challenge. Certainly anybody can call out east for results, then communicate it to their friends out west, if they really wanted to vote strategically. But maybe the phones could be blacked out, so they will resort to faxes until that becomes off limits.

For the blackout to work it can't penalize one while others communicate election results through other means and escape prosecution. That just isn't fair. With so many ways to communicate today, it seems inherently absurd to single out bloggers to prosecute.

It may be time for Elections Canada to seek other blackout approaches, like blacking out the entire country until all election results are in. Your thoughts or suggestions are welcome.

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