0. Overview - Legal and Regulatory Responses

Updated On
Apr 01, 2021

Written by Lisa Reppell, Global Social Media and Disinformation Specialist at the International Foundation for Electoral Systems Center for Applied Research and Learning

The legal and regulatory frameworks governing elections vary significantly in how comprehensively they have adapted to the widespread use of the internet and social media in campaigning. While lawmakers in some countries have made strides to bring their legal and regulatory frameworks in step with an evolving information environment, other frameworks are largely silent on the topic of digital media. As the tactics of social media and technology-enabled information operations are increasingly adopted by political actors as standard campaign practices, the absence of legal and regulatory guidance that sets bounds on permissible campaigning behaviors becomes increasingly problematic.

Carefully crafted laws and regulations can inhibit political actors from using disinformation and other harmful or deceptive online practices for personal and political gain in ways that erode the health of the democratic information environment. At the same time, the adoption of overly broad legislation can have chilling implications for political and electoral rights. While legal and regulatory reform to adapt to the ways social media and technology have changed elections is essential, grounding that reform in comparative, global good practice can aid regulators in considering the challenges of regulating this area.

Though most countries have established norms and rules to govern the flow of information via print and broadcast media during campaigns and elections, the democratic principles that inform these laws and regulations – freedom of expression, transparency, equity, and the promotion of democratic information – have not been consistently extended to social media and online campaigning. Regulation, however, must do more than simply extend existing media oversight mechanisms to the digital world. Social media and the internet have altered the ways in which individuals encounter, interact with, and create political and electoral information, requiring lawmakers and regulators to adopt approaches consistent with this changed reality.

“[Our organization] look[s] at media content in the run up to elections – we look at print, broadcast, traditional media – all of which are clearly covered by electoral guidelines and processes. If we see something on radio or TV, there would be a means of recourse in our electoral commission to deal with that appropriately. What we saw with digital media… [it wasn’t] covered by anything or anyone. It was a huge gap.” — William Bird, Director of Media Monitoring Africa (South Africa)

Highlight

Regulation that would change the behavior of foreign adversaries or significantly alter the global business practices of social media platforms is unrealistic goals for legal reform processes at the national level.1 However, regulating the actions of domestic actors during electoral periods or discrete laws that create pressure on the ways platforms operate within a country are viable areas for reform. Such regulation also builds on the existing mandate of regulatory or judicial bodies to oversee the behavior of domestic actors during elections, including candidates and political parties.

National legislation governing the use of digital media during elections and campaigns has the potential to close loopholes currently being exploited by domestic actors to manipulate the information environment around elections. The use of disinformation for a political advantage during campaign periods constitutes more than the dissemination of false or misleading information. Disinformation campaigns are often directed by actors that leverage deceptive and coordinated behaviors online to distort public understanding, heighten social polarization and undermine trust in elections and democratic institutions. These campaigns are supercharged by the nature, scale, and networked capacity of new online systems and can have an outsized impact on the political participation, societal perception, and safety of women and other marginalized groups. To construct a network that deploys disinformation at scale often requires financial resources to not only develop and test messages but also finance the amplification of those messages. In the absence of specific political and campaign finance guidelines for the use of social media in campaigning, few limitations exist on what behaviors are permissible, even in instances where those behaviors would seem to constitute a clear violation of principles that exist elsewhere in the law.

Some countries are developing novel approaches for dealing with the use of social media in campaigns and elections, sometimes in ways that lack international precedent. The intent of this topical section is to detail, categorize, and discuss the implications of these emerging national-level legal, regulatory, and judicial decisions. This section draws from an analysis of the electoral legal frameworks of more than forty countries across six continents. Many of the laws and policies collected in this topical section have not yet been tested extensively in election contexts, so it may not always be clear which will succeed in advancing their intended goals.

Explore: Definitions, Comparative Examples, and Enforcement Considerations

This section of the guidebook is intended to be a resource for lawmakers contemplating the regulation of digital and social media in their own electoral legal frameworks, as well as for international donors and implementers that may be providing comparative examples in the process.

  1. DEFINITIONS: The content in this section begins with a discussion of key definitional considerations that lawmakers must address in the regulation of social media during elections and campaigns, as well as examples of how different countries have chosen to define these concepts. Depending on how these concepts are defined, they have the potential to significantly alter the scope and enforceability of law. 

  2. COMPARATIVE EXAMPLES: The text then proceeds with comparative examples and analysis of measures taken in national-level law, regulation, and jurisprudence. It looks at measures to restrict online content and behaviors during campaigning and elections, as well as measures to promote transparency, equity, and democratic information. The examples that are included can be explored individually according to interest and need not be read consecutively. Examples are intended to provide comparative perspectives to inform legal and regulatory reform discussions, though the inclusion of an example does not constitute an endorsement of that approach.

  3. ENFORCEMENT: Thoughtful regulation means little if it is not accompanied by meaningful consideration of how that regulation will be enforced. A lack of realism about enforcement threatens to undercut the authority of the regulatory bodies enacting reforms and may establish unrealistic expectations of what is achievable through regulation alone.

Footnotes

1. The guidebook section on norms and standards addresses global policy approaches to alter the behavior and business practices of social media and technology companies.