Political speech is seemingly under attack from the last place we might expect: Canadian media broadcasters. CBC, Radio Canada, CTV, Rogers, and Shaw (which owns Global TV) announced last month that they would no longer air political advertisements that include material taken from their airwaves without express authorization.
“As news organizations, the use of our content in political advertisements without our express consent may compromise our journalistic independence and call into question our journalistic ethics, standards and objectivity,” they wrote.
According to the CRTC, “during an election campaign, broadcasters play an important role in informing Canadians about the issues, political parties and candidates involved.” Under section 335(1) of the Canada Elections Act, every broadcaster is required to provide prime-time advertising to all registered political parties. The Act also appoints a Broadcasting Arbitrator, who issues specific guidelines on the content of messages, as well as to deal with disputes between political parties and broadcasters.
Under the guidelines issued by the Broadcasting Arbitrator, the political messaging must accord with the federal Broadcasting Act and to the conditions of the broadcasters’ licences under the Act. A broadcaster can refuse to publish an advertisement that is obscene or profane, exposes individuals or groups to hatred, or is in contravention of the law. These criteria are strict and reflect the importance our society places on protecting political discourse. Furthermore, a broadcaster is not allowed to censor a political ad “unless the political ad contravenes the regulations or the licence conditions.” The rationale provided by the broadcasters appears not to meet this criteria.
The Supreme Court noted in Libman that “political expression is at the very heart of the values sought to be protected by freedom of expression [under the Charter].” Ironically, last year, the Liberal Democratic Reform Critic, Stéphane Dion, wrote to the Commissioner of Canada Elections to protest a Conservative ad that contained footage owned by the Huffington Post and CTV. Dion cited copyright infringement and concocted a farfetched challenge that the unpaid use of copyrighted material constituted a “non-monetary contribution” from the media outlets to the Conservative Party, violating the prohibition on corporate donations to political parties.
Copyright is not always absolute, and there are times when others are allowed to use the creator’s original work. According to Thomas Rose:
Article 29.1 provides for example that fair dealing for the purpose of criticism or review does not infringe copyright as long as the source of the material is clearly identified in the ad. This means that as long as the ad clearly identifies for example CTV’s Power Play as the source of the clip it contains, then presumably it would be alright to use the material.
Protecting copyright is not an illegitimate purpose, but this approach is less than ideal for political advertisements. Ads are often the easiest and most effective way for political parties to communicate their message to the electorate. Often, to back up a claim, a quotation is taken from an article or interview and cited. While the broadcasters’ motivation is understandable, an interview may contain information that should be in the public domain.
For instance, Justin Trudeau made his ill-advised comments on the perpetrators of the Boston Marathon bombings in a televised CBC interview: “There’s no question this happened because there’s someone who feels completely excluded.” A Conservative attack ad featured the interview, along with the citation “CBC, April 16, 2013” and a voiceover. Every political party should have the right to include excerpts of the interviews or quotations of their opponents in an advertisement.
Political parties rely on election advertising to persuade the electorate to vote for them. This political expression is a significantly important aspect of public discourse and should be accorded the highest priority and protection. This censorship should be challenged by all political parties, and the Guidelines preventing the censorship of political advertisements should be upheld by the Broadcasting Arbitrator.