The long-awaited decision of the Supreme Court of Canada on election result embargos has just been handed down. R v Bryan is the case.
Brief background: Canada being a big place, it stretches across 5 and a half timezones. (The half is Newfoundland; that’s what you get when you allow people from Waterford to build a province). It’s illegal to publish election results until the polls have closed in all time zones – section 329 of the Canada Elections Act. Easy enough to enforce in ye olde days, but more difficult with Web media. And this case involves a website. And the intrepid reporter lost (5-4 at this, final level).
The Attorney General’s argument is based around ‘informational equality’ (which seems to pay homage to the ‘free and balanced flow of information’ favoured by 1970s UNESCO and others). And this convinces the judges. The reason for the restriction (and indeed for the other feature of electoral law that is relevant – staggered voting hours) is to ensure, in particular, that the election is not ‘over’ before the West finishes polling, which would dampen turnout in the Western provinces. The Lortie Commission in the early 90s discussed these matters in detail. The dissenters argue that the restriction isn’t proportionate, and also takes apart some of the political science / opinion poll work on the impact of early results on turnout.
Interestingly, Fish J says at para 79 (the report is a single HTML page, so I’m not linking directly to opinions):
I recognize, of course, that modern communications technology diminishes the delay’s effectiveness and thereby its salutary effects. Section 329 cannot and does not entirely prevent voters in central or western Canada who are determined to learn before casting their ballots what has transpired in the Atlantic Provinces from obtaining that information by telephone or e-mail, for example. But it does, at the very least, curb widespread dissemination of this information and it contributes materially in this way to its objective — information equality between voters in different parts of the country
A fairly good explanation of the way that courts and legislators are recognising that you can regulate ‘the Internet’ without requiring 100% effectiveness…and an interesting approach to the pleading of the technological issue.