Tuesday, June 9, 2015

Political Astroturfing in Canada: Does it happen? Is it legal? Should it be?

It's now a well-established reality that governments and political parties closely monitor social media.  This isn't surprising, though - as with government advertising - there's often a question as to whether the tax dollars spent on government message monitoring may be partisan in nature.

But when the Canadian government admitted some years ago to monitoring online discussions relating to public policy, there was a small and mostly-overlooked element of the reporting, that the government's involvement included participation in the discussion, by 'correcting misinformation'.

To date, we don't really know what that means.  Did government employees, open about who they were, simply rebut objectively incorrect statements of fact?  Or were they posting under anonymous monikers, and/or promoting the government's position on arguable or contested facts?

Last month, the CBC ran a piece discussing the 'nasty' partisanship exhibiting itself in the comments on news stories.  While noting that there's no evidence of any Canadian political party actually paying or directing the online comments trolls, there's lots of evidence of foreign governments doing so to control the message, and it is undeniable that we're dealing with "our own partisan troll armies, whether they be volunteers or paid".

Along similar lines, a team at the University of Indiana was reported, during the last election campaign, as tracking potential partisan abuses of Twitter.


There's a social media phenomenon known as "Astroturfing" - the attempt to promote a message while concealing who is behind it, to make it appear to originate from 'grassroots'.  There are a number of contexts for it - the 'classic' example would appear to be the posting of fake positive reviews for a business (or the posting of fake negative reviews against a competitor).

Whenever you're reading anything online that isn't from a verifiable source, take it with a very large grain of salt.  And anonymous internet comments are probably the high watermark of unreliable information.

Still, astroturfing has an impact.  It's normal for consumers to look online for product reviews, etc., even knowing that the information they obtain might not be reliable.  And the overall 'consensus' is influential:  If most of the reviewers were satisfied with one product, and reviewers of the competing product found it to be woefully deficient in some way, I'm probably going to be pushed to the former.

And it happens.  The Competition Bureau has published warnings about astroturfing, with a statistic (albeit one that is very poorly cited) that a third of all customer reviews are fake.

Many jurisdictions have prohibited astroturfing of that nature, and in Canada it's probably captured by s.52 of the Competition Act:
No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.
(Other provisions make it clear that 'permitting' a representation to be made is included.  So the fact that you didn't *ask* your underling to post fake reviews doesn't change the fact that, if you were aware your underling was doing so and didn't stop him, you're guilty.)

And it's good that these practices are unlawful:  It totally undermines the public value of customer feedback when we can't tell bona fide feedback from sponsored messages.

Political Astroturfing

At first blush, we might be less concerned about overt political astroturfing.  When an anonymous commenter posts a personal insult directed at Justin Trudeau or Stephen Harper, it is fairly easy for a reader to assess that the message is coming from a political and partisan perspective - paid or not.

But the concern arises in full force surrounding issue-based and fact-based posts.

In recent days, there have been many news stories and columns about the need for Senate Reform.  These stories barely mention the judiciary or Supreme Court, if at all, and yet there are significant numbers of internet commenters voicing cries, with unnerving consistency, of judicial partisanship, that the Supreme Court has overstepped itself in an attempt to thwart the elected government.

(Yes, I read the comments on internet news stories.  Call it masochism.)

Now, these complaints are wrong.  Full stop.  But given that they're only peripherally related to the subject matter of the news articles and columns, it seems surprising that so many choose to drive the discussion in the direction of an attack on the Supreme Court, which makes me wonder:  Is there a driving force behind this discussion?

And that's a dark thought.  It's possible, and even quite plausible, that the people who think the Supreme Court has overstepped its mandate are sincere, albeit wrong.  But what if they aren't?  What if they are, in fact, paid shills of an interested party who simply doesn't want to attach their own names to the criticism?  (Recall the significant bad press the government attracted when it implied that the Chief Justice had acted unethically in advance of the Nadon reference?)  That would be difficult to accept.

Factual misrepresentations, taking controversial or even offensive positions on issues, while the parties behind them get to publicly say "We never said that"...it would bring our already-dirty political discourse to new lows.

Again, it isn't clear that political astroturfing is happening in Canada to any significant degree.  Frankly, knowing how some of our politicians approach message management, I'd be surprised if it wasn't going on.  But let's suppose, for the sake of argument, that it is.

Is it Legal?

I would argue, on a fairly solid basis, that political astroturfing is illegal during an election campaign.  Under the Canada Elections Act, "election advertising" is broadly defined, including any transmission that takes a position on an issue with which a party or candidate is associated.

There are exceptions, including "the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of her or her personal political views".  In other words, an individual making a bona fide post about his own views will probably not be captured within the definition of election advertising.  In the early days of the internet, before that exemption existed, and before the explosion of social media and Web 2.0, there were tales of web hosts being targeted by Elections Canada for putting up political messages on web sites without complying with the CEA.  The exemption serves an important role in today's world.

But if an internet comment is directed by another authority - be it a politician or third party - then it may well be outside the exemption.

In which case...well, you know how all political ads have that note at the end that the message was authorized by whatever party?  Well, that would become legally mandatory.  If I'm a paid shill of one of the political parties, and posting what they've told me to post, then the message would be legally required to include "This message is authorized by the [insert party here]".  Kind of defeats the point of astroturfing, eh?

But only during an election campaign.  (And there may well be different degrees of clarity.  What if I'm taking directions from a political party, but sincerely believe every word I write?  Does that fall within the exemption?  I'd probably argue 'no' - that the external direction prevents it from being my "personal political views" within the meaning of the provision.  But it's arguable.)

In between election periods, I know of no basis for arguing that political astroturfing would be unlawful.  It wouldn't fall under the Competition Act prohibitions, and I doubt it would come within any CRTC guidelines such as those that so many politicians violated with automated diallers.

Should it be Legal?

There are a great many challenges caused by internet anonymity.  It's well known that people will say many things behind the perceived veil of anonymity on the internet to which they would never attach their names - to the extent that the Prime Minister's former Parliamentary Secretary, Dean Del Mastro, argued that Parliament should try to ban internet anonymity.

Of course, that raises a whole host of practical and ethical concerns, but neither one applies to a prohibition on anonymity of political parties online.  Prohibiting them from anonymously financing television or radio ads triggers the same policy concerns as prohibiting anonymous internet advertising - indeed, the latter might present a more compelling case for prohibiting anonymity, given that TV and radio ads are obviously sponsored by somebody, whereas Web 2.0 posts are presumptively created at the instance of 'some guy with an internet connection'.

Permitting parties to distance themselves from their own messages is, simply, not appropriate.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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