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Restrictions on Communications During the Election for Post-Secondary Institutions
Post-Secondary Alert

Alberta post-secondary institutions are subject to new election laws restricting public communications during the 2019 election period.

Bill 32, An Act to Strengthen and Protect Democracy, passed on December 12, 2017, introduces restrictions on advertising and publishing that apply to the majority of post-secondary institutions during the election period - the 28 day period commencing when the writ for a general election is issued and ending when polling day is over. If the restrictions are contravened, the Election Commissioner may remove the publication/advertisement, impose a letter of reprimand, issue an administrative penalty requiring the payment of a fine up to $5,000.00, or commence a public prosecution that could result in a fine up to $5,000.00 and/or up to one year of imprisonment.

Section 134.1(2) of the Election Act prohibits government departments and Provincial corporations - a term that includes all Alberta comprehensive academic and research universities, comprehensive community colleges, polytechnic institutions, and undergraduate universities - from advertising or publishing any information about their programs or activities during the 28 day election period.

The restriction is not limited to paid advertisements and includes any publication of information about programs or activities unless an exemption applies. Institutions are prohibited from drawing attention to an event, product, service, or idea in a public medium during the election period unless an exemption applies. As a consequence, websites, social media, and print publications are all affected.

Section 134.1(4) of the Election Act also prohibits institutions from using the name, voice, or image of a candidate who was a member of the Legislative Assembly immediately before the issuance of the writ in any advertising or publication about programs or activities. The name, voice or image cannot be used in any publication, including those publications that are otherwise permissible during the election period as a result of an exemption. Accordingly, both existing and new publications about programs or activities that include photographs or the name of past MLAs seeking re-election, including the Minister of Advanced Education Marlin Schmidt, are prohibited.

Four kinds of publications and advertisements are exempt from the restriction on publishing information about programs or activities during the election period:                          

  1. Advertisements or publications that are a continuation of earlier publications or advertisements and that are required for ongoing programs.
  2. Publications required to solicit proposals, tenders for contracts, or applications for employment.
  3. Publications required by law (e.g. information as required by the Freedom of Information and Protection of Privacy Act).
  4. Publications relating to important matters of public health and safety (e.g. information about emergency situations).

The extent of the restrictions placed on advertisements and publications is unclear. A publication containing information about the “programs or activities” of a post-secondary institution may include all activities of an institution such as alumni events, sporting activities, fundraising ventures and other day-to-day activities. Uncertainly exists about what it means for a publication to be both a continuation of an earlier publication and required for ongoing programs, including how restrictive “required” is and whether “programs” means the entire institutional mandate or only specific learning programs.

Given the uncertainty and issues that may arise during the election period, post-secondary institutions may wish to seek advice about what publications and advertisements will be permitted and what actions should be taken to ensure compliance with the new restrictions.