Legal and Regulatory Responses to Disinformation

1. Definitions

1.1 What Constitutes Social or Digital Media?

The online media environment continues to evolve, and regulations that are crafted today to address specific elements of that environment may quickly become out of date. Regulators must consider the full range of internet-enabled communication tools to determine how broadly or narrowly to craft their guidance.

Writing in 2014, International IDEA defined social media as “web or mobile-based platforms that allow for two-way interactions through user-generated content (UGC) and communication. Social media are therefore not media that originate only from one source or are broadcast from a static website. Rather, they are media on specific platforms designed to allow users to create (‘generate’) content and to interact with the information and its source.”

In the intervening years, the social web has continued to evolve and definitions such as the above may no longer sufficiently capture the range of online activities that regulators wish to address. Analysis by the Knight First Amendment Institute at Columbia University of the 100 most popular social media platforms articulates the definitional complexities of classifying social media.  Capturing campaign activity that takes place on digital messaging applications, such as WhatsApp, Telegram, or Signal, or on subculture internet forums, for example, may require a broader definition than the one above. The role of search engines, online advertisement distributors, or ad-based streaming internet television in campaigning may also require greater definitional breadth.

Germany’s 2020 Interstate Media Treaty (Medienstaatsvertrag – “MStV”) Law provides one of the more comprehensive definitions of the range of activities it seeks to govern. The law introduces “comprehensive media-specific regulations… for those providers that act as gatekeepers for media content or services to disseminate it” such as "search engines, smart TVs, language assistants, app stores, [and] social media." The law attempts to provide detailed definitions under the categories of media platforms, user interfaces, and media intermediaries.

Rather than referring to social or digital media, the electoral code of Canada refers to “online platforms,” defining them based on the salient feature being regulated by the code, namely that they sell advertising. Canadian law defines an online platform as “an Internet site or Internet application whose owner or operator, in the course of their commercial activities, sells, directly or indirectly, advertising space on the site or application to persons or groups.”2

Other jurisdictions will further restrict the social media or online platforms obligated to comply with a new law or regulation based on a specific criterion, such as the number of users. Germany’s Netzwerkdurchsetzungsgesetz (NetzDG) law, for example, which requires companies to expeditiously remove illegal content from their platforms, applies only to internet platforms with at least 2 million users.3

 

In defining social media or digital media, drafters will want to consider:

  • What array of online behavior does this law address? Does it include all websites that allow paid advertising or public comments, such as online news sites or blogs? Does it apply to digital messaging applications (i.e. WhatsApp)? Search engines? Internet advertising distributors? 
  • Is the intent of the law purely to regulate online paid activities taking place on social media? If so, should the definition be focused on online entities that run paid advertising? 
  • Are the obligations created in this law too burdensome for small social media companies in ways that will stifle competition due to the high costs of compliance? As such, should the law be limited to platforms that exceed a certain number of daily users or have a certain amount of revenue or market value?

1.2 What is online campaigning? (organic vs. paid content)

Legal and regulatory frameworks may wish to distinguish between “organic” and “paid” activities are undertaken by the actor being regulated. Organic campaign content, for example, would be material shared by a party or candidate with their established social media audience who may or may not engage with or further disseminate that material. The reach of organic content is determined by the size of a candidate or campaign’s social media audience – i.e. those entities that have chosen to follow or engage with the social media actor in question – as well as the quality and appeal of the content that is being shared. 

“Paid content” on the other hand is material for which the actor being regulated has paid to bring added visibility among audiences that may not have chosen to engage with that material. Different social media and digital platforms have different paid features to expand the reach of content, including but not limited to, the placement of advertisements or payment to prioritize content in users’ social media feeds

or search engine results. If a party pays for the development of campaign messages or materials, even if they are then distributed through organic channels, that too may qualify as an expense that must be reported, as discussed in the following definitional section on “What constitutes a digital or social media advertising expenditure?”

This distinction is particularly pertinent in instances where there are restrictions on campaigning outside of a designated period. For example, a clear definition is needed to delineate what online behaviors are permissible before a campaign period begins or during an electoral silence period directly prior to the election.

Regulators in different countries have chosen to answer this question in different ways, with some determining that both paid and unpaid social media content constitutes online campaigning, while others determine that regulation pertains only to paid advertising. 

    Venezuela’s electoral legal framework, for example, stipulates that unpaid political expression on social media by candidates or parties is not considered campaigning.4 The Canadian framework acknowledges the complexity of enforcing campaign silence online by exempting “the transmission of a message that was transmitted to the public on what is commonly known as the Internet before the blackout period … that was not changed during that period.”5 Similarly, 2010 guidelines from the National Electoral Commission of Poland prohibit any online activity that constitutes campaigning during the election silence period but allows content that was posted online before the start of the silence period to remain visible.6

    In defining online campaigning, regulators will want to consider:

    • Do they wish to distinguish between content that is disseminated through paid and unpaid means? 
    • Is only content shared by parties and candidates subject to regulation, or do stipulations pertain to a broader array of internet users that may post political content or purchase political or issue advertisements?
    • What is the regulatory body’s capacity to monitor and enforce campaign violations, and does this impact how narrowly or broadly online campaigning is defined?

    1.3  How does the law define political advertising, campaign advertising, and issue advertising?

    Domestic law may take a broad or narrow approach to define the types of advertising that are subject to scrutiny. Clearly delineating the criteria by which online paid advertisements will be deemed to fall into a regulated category is essential for any regulation that, for example, attempts to place guardrails around permissible political advertising or requires specific disclosures related to online political advertising. 

    Electoral codes and social media platforms use varying definitions for “political advertising,” “campaign advertising,” “election advertising,” and “issue advertising.” These phrases do not have universal definitions, and establishing the definitional distinctions among these concepts is a familiar challenge from the regulation of offline campaigning as well. For both online and offline campaigning, subtle distinctions within these definitions can significantly alter the scope and impact of a law. 

    For countries that have designated campaign periods, “campaign advertising” and “campaign finance” are terms used to delineate activities and expenditures that occur during that designated period, while “political advertising” and “political finance” would include the activities and expenditures of a party that take place outside of the campaign period or relate to the general operations of the party. 

    For the purposes of this section of the guidebook, “political advertising” will be used as an overarching term to refer to advertising that is placed by political parties, candidates, or third parties acting on their behalf, as well as any advertisements (regardless of who has placed the ad) that explicitly reference a political party, candidate, or election or that encourages a particular electoral choice. “Campaign advertising” will only be used when referencing measures that apply specifically to a designated campaign period. 

    The distinction is important, as some party expenditures – for example the placement of advertisements that serve a voter education purpose – might be considered political advertisements or campaign advertisements depending on the definitions used. If the definitions are indistinct, candidates and parties that conduct voter education outside of the campaign period may argue such messages are part of their normal course of business and not part of a campaign, opening a pathway for parties to circumvent campaign regulations.7 

    The phrase “issue advertising” is used in this section to capture a wider array of advertisements that reference social or political issues but do not explicitly reference a party, candidate, or election. Issue advertisements can be placed by any entity, whether they are expressly political or not. Countries that subject a broader array of online issue advertising to regulation may choose to do so in order to deter clandestine advertising with political, social, or financial goals, but which do not specifically name candidates or parties in an attempt to skirt regulation. A broad definition significantly expands the array of advertising that must then be subject to rules or review. Facebook notes that for countries tracking issue advertisements, these can come from an array of advertisers including “activists, brands, non-profit groups, and political organizations.” 

    Attempts to regulate issue advertisements also raise freedom of expression considerations for civil society and advocacy groups. In Ireland for example, regulated activities include those “…to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome in relation to a policy or policies or functions of the Government or any public authority.”8 The debate over this provision highlighted concerns that such a broad definition could impact the advocacy and campaigning work of civil society organizations.9

    New Zealand and Canada have also crafted sufficiently broad definitions of election advertising to make possible the sanction of online political advertising disguised as issue-based advertising.

    • New Zealand10 
      • In this Act, election advertisement— 
        • (a) means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to do either or both of the following: 
        • (i) to vote, or not to vote, for a type of candidate described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate is stated): 
        • (ii) to vote, or not to vote, for a type of party described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party is stated);
    • Canada11 
      • election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated.

    Both New Zealand and Canada’s definitions further distinguish election advertising from an editorial or opinion content.

    Whether national law provides that advertisements about political or social issues are subject to additional transparency or oversight measures may impact the information that is collected and cataloged by Facebook, and possibly by other online platforms. For example, as of early 2021, Facebook captured a greater range of advertisements in its Ad Library for Canada, the European Union, Singapore, Taiwan, the United Kingdom, and the United States than for other countries.12 Among the 34 countries that gained access to the Facebook Ad Library in July and August of 2020, only New Zealand and Myanmar required added disclosure for social issue advertising in addition to political and electoral ads (which applied for all of the remaining countries). In New Zealand’s case, this may have been in response to a national-level legal provision requiring broader disclosures from the platform related to issue advertising, though Myanmar’s legal code is silent on the topic.

    In defining political, campaign, election or issue advertising, regulators will want to consider:

    • Are there definitions of political, campaign, electoral, or issue advertising in the current electoral legal framework? If so, do they apply to social media advertising?
    • If there is no definition, or it does not apply to social media, or it includes a narrow definition of political advertising, would it be beneficial to expand or revise the definition?
    • Does the legal framework require activists, brands, non-profit groups and political organizations to disclose issue advertisements?
    • In each instance, is this a reasonable burden to place on these entities that will not suppress their ability to reach intended audiences due to overly-onerous requirements?
    • What are the implications of any proposed changes on freedom of expression, particularly for civil society organizations engaged in advocacy?

    1.4 Who are the payers and paid entities in online campaigning?

    If regulators are attempting to use existing legal mechanisms at their disposal – including the legal framework regulating political finance, public corruption, or the use of state resources – then definitions that acknowledge the complexity of the information ecosystem need to be considered. The creation of disinformation at scale by a domestic or foreign actor will likely necessitate the outlay of funds to secure the personnel, expertise, and materials needed to create and maintain a sustained online campaign. Regulation that seeks to bring transparency through disclosure requirements or regulate paid campaign activities must therefore acknowledge the multitude of financial relationships that might constitute an expenditure.

    Social MediaDigital and social media campaigning increases the opportunities to obscure the origins of content by acting through third parties. Measures that seek to bring transparency into these financial flows will want to consider not only who is the payer and beneficiary, but also who is the paid entity -- the social media platform itself? Influencers who operate pages or feeds on respective platforms and may be paid to promote political content? Public employees, who engage in campaigning via social media while at work? Public relations firms or content creation entities (such as content farms or troll farms) that produce and disseminate content on behalf of a political entity?

    Additionally, are those entities operating from within the country or extraterritorially? 

    Canada, for instance, exempts social media posts from its definition of “advertising” if it falls within the following parameters: “the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views” (emphasis added).13 This can be interpreted to require the payment of social media intermediaries or influencers by political entities to be disclosed as advertising. Without this consideration, candidates and political parties can circumvent regulations by paying third-party entities to promote content or place advertisements on their behalf. The nature of social media makes it comparatively easy for a political entity to engage the services of a third party to perform otherwise regulated or prohibited activities on social media while circumventing disclosure requirements. Laws should include clear definitions of terms to capture this reality and close loopholes.

    Conversely, measures that sanction or place obligations on the disseminators of unlawful content – without seeking to identify the funders of that content – are unlikely to deter the actors that are the ultimate beneficiaries of disinformation campaigns.

    In defining who the payer and paid entities are, regulators will want to consider:

    • If a certain action is prohibited or subject to disclosure requirements, does the legal and regulatory framework also apply to the hiring or instruction of third parties to perform that action?
    • How does the legal or regulatory provision under consideration impact the disseminator of content versus the funder of the activity?

    There is no regulation to catch the funder, only the one who spread[s the content].” — Indonesian Civil Society Representative

    1.5 What constitutes a digital or social media advertising expenditure?

    If a legal or regulatory approach includes disclosure or transparency requirements, it is important to define the types of expenditures on digital advertisements or digital campaigns that must be disclosed. These requirements may also need to be reviewed at regular intervals to ensure that they suit the rapidly evolving tactics of digital campaigning.

    Robust disclosure requirements will provide insights into the sources of funding, the amount of funding provided by each source, and detailed information on how funding was used. Full disclosure is necessary to make it possible to judge if funds are coming from legally allowable sources and being used for legitimate party and campaign purposes. Minimal disclosure requirements make it easy for political actors to comply with the letter of the law while concealing questionable behaviors that violate the intent of disclosure requirements.

    Analysis by the UK Electoral Commission notes that digital advertising expenditures can be easily hidden under different reporting categories. The Commission notes that they are unable to capture an accurate picture of how much has been spent on social media advertising because data is limited to payments made directly by the reporting entity to identifiable social media providers, such as Facebook or YouTube. This does not account for the reality that a significant amount of digital spending happens via consultancies or intermediary advertising agencies.14 For example, the Labour Party reported digital advertising expenditures of £16,000 in the 2015 Parliamentary Elections in the UK, when later calculations showed the total to be closer to £130,000 via intermediary advertising agencies. Practices such as this led the Electoral Commission to conclude that more detailed expenditure requirements were needed.15

    In defining what information to include in disclosure requirements, regulators will want to consider:

    • What constitutes an expenditure? For example:
      • Only the cost to place an ad? 
      • The payment of digital advertising or public relations firms to design and deploy ad campaigns? 
      • The cost to produce an ad? 
      • The cost to profile target audiences? 
      • The cost to develop and deploy chatbots (or other bots) to engage with users on social media platforms? 
      • The direct or third-party payment of content (or troll) farms to disseminate designated social media content or messages in large numbers? 
      • The cost of obtaining influencer endorsements?

    1.6 Is there a timeframe during which expenditures must be disclosed?

    For countries that have defined campaign periods outlined in law or regulation, a loophole opens if regulators require detailed disclosure of social media advertising expenditure only during the campaign period. Though such spending may still be captured in regular party financial reporting, figures might only be captured annually and, depending on reporting requirements, may contain less detail than what may be required during campaign periods. Additionally, whether an expense is defined as an agreement to make a payment or a payment itself can impact reporting. If imprecisely defined, a political contestant could, for example, delay payment to a social media intermediary until after Election Day to skirt reporting requirements.

     

    In defining a timeframe for disclosure, regulators will want to consider:

    • How are disclosure requirements already outlined in the law for traditional media or political finance? 
    • Is the timeline crafted in a way that aligns with when digital or social media expenditures are likely to take place in the electoral cycle? For example, the cost to profile target audiences or pay for an influencer endorsement could occur well in advance of the electoral event, or payment could happen after Election Day as a way to avoid disclosure requirements that cover only the immediate campaign period.

    Campaign finance limits to expenditure only apply during the campaign period – but there are campaign expenditures also outside of the official campaign period... We have to redefine campaign finance coverage to be more comprehensive. — Indonesian Civil Society Representative

    1.7 Why are definitions of fake news and disinformation problematic?

    Legal and regulatory interventions that attempt to ban or sanction “fake news” or disinformation have been widespread in recent years. However, the difficulty defining these terms is one of the reasons such measures are frequently criticized by those who fear their implications for fundamental rights. As discussed in the introduction to this guidebook, precise definitions of disinformation are elusive, and what is commonly referred to as disinformation encompasses a wide range of deceptive and problematic behaviors.

    If the success of a legal or regulatory intervention relies on a precise, comprehensive, and universally applicable definition of “fake news,” “false information,” “misinformation,” “disinformation,” or a similar term, it is likely that the intervention will either result in collateral damage to freedom of expression or be too vague to be reliably enforceable. It also holds a high risk of being selectively enforced, for example, against political opponents or to restrict press freedoms. 

    Some jurisdictions have chosen to leave the issue of determining what content constitutes “fake news” to judicial review. French law, for example, stipulates that whether an item is “fake news,” and thus subject to removal or containment, is up to the determination of a judge. The ruling shall be made according to three criteria: the fake news must be manifest, disseminated deliberately on a massive scale, and lead to a disturbance of the peace or compromise the outcome of an election.16 The proportionate application of such a law is dependent on an independent judiciary insulated from political pressure, well-trained judges capable of understanding the digital information ecosystem, and a well-resourced judiciary capable of expediting the review of such claims, including any appeals.

    Lawmakers and regulators should consider the range of approaches outlined in this text before resorting to the blunt-force instrument of a ban on or criminalization of fake news or disinformation. In instances where content and speech circulated on social media run afoul of existing criminal law, the referral of violating content for investigation and prosecution under such existing provisions – such as those covering defamation, hate speech, fraud, or identity theft -- is recommended over the adoption of additional criminal sanctions for the dissemination fake news or disinformation.

     

    Footnotes

    2. Canada Elections Act, S.C. 2000, c. 9 (amended 2019): Part 16, Election Advertising.

    3. Network Enforcement Act, Federal Law Gazette I, p. 3352 ff. (2017): art. 1 (1.2).

    4. General Regulation of the Organic Law of Electoral Processes, n ° 130118-0005 (2013):  art. 210. 

    5. Canada Elections Act, art. 324 (a). 

    6. Magdalena Musial-Karg, “The Election Silence in contemporary democracies. Questions about the sense of election silence in the Age of Internet.” (2013): 104-105.

    7. The UK Electoral Commission’s purpose test provides a useful framework for drawing distinctions between different types of campaign activities. 

    8. Explanatory Note for Third Parties,” Standards in Public Office Commission (2015): 11. (emphasis added)

    9. Magnus Ohman, “Note on Third Party Regulations in the OSCE Region.” (2020): 29 – 31.

    10. New Zealand Electoral Act, n ° 87 (amended 2020): § 3A (1).

    11. Canada Elections Act, Definitions: 3

    12. See Facebook Business Help Center, “About Social Issues” for more details on how Facebook defines and tracks social issues, and the key social issues tracked for each of the covered countries. 

    13. Canada Elections Act, art. 349.01 (1)(e). 

    14. UK Parliamentary General Election 2015: Campaign spending report,” The UK Electoral Commission (2016): 55-56.

    15. Internet and electoral campaigns: Study on the use of internet in electoral campaigns,” Council of Europe (2018): 17. The issue is not that the remaining £114,000 went unreported, but that it was not reported as digital advertising expenditure. 

    16. Against information manipulation,” Government of France (2018).