LESSONS FOR REGULATING CAMPAIGNING ON SOCIAL MEDIA post constituted false or misleading information that dissuaded voters from voting, the Council of State upheld the lower Court’s ling that the content of the message was not false and cannot be considered as dissuading voters from casting their vote. The impact of this criminal provision is however limited by the jurisprudence in France, which requires to prove the impact on the sincerity of the election. 23 As more jurisdictions adopt legislation to combat the corrosive impact of misinformation and disinformation on elections, the implementation of provisions like these that give judges a central role in determining what should be considered “fake news” will need to be closely examined to determine the potential for negative impacts on judicial independence – or the public perception of independence – as they are asked to wade deeper into issues that have the potential to be deeply political and divisive. In these cases, it will be especially important that courts are equipped with clear legal criteria to make these determinations. As noted in the Countering Disinformation Guide, “The proportionate application of such law[s] [are] 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.” 24 Additionally, in many instances, countries that lack adequate democratic safeguards are mimicking measures adopted by European democracies, representing a high risk of selective enforcement that could be used to silence political opposition and the press. For instance, this has been the case with Germany’s Network Enforcement Act, which establishes “intermediary liability” for social media platforms of a certain size to remove “manifestly unlawful” content within 24 hours and other unlawful content within seven days with penalties of up to 50 million Euros for failing to comply. 25 While the Network Enforcement Act itself is accused of violating international human rights standards, it has been used as a model for similar laws in at least 13 other countries, including Venezuela, Vietnam, India, Russia, Malaysia, and Kenya, which have expanded the scope of content from unlawful to other vague categories, such as “fake news” or “anti-government propaganda.” 26 Finally, another French case highlights the significant challenges in capturing online content as evidence to substantiate electoral complaints or allegations of criminal conduct. 27 In this case, a mayoral candidate purchased an advertisement on Facebook for the candidate’s official profile, hoping to reach current and new subscribers. 28 The advertisement commenced forty days before election day, which was before the designated campaign period began, and was to continue throughout the election period. However, Facebook took the advertisement down a few days later after it was posted. Due to Facebook taking down the advertisement, the Court of Nîmes was not able to establish the likelihood that it reached enough voters to have had an impact on the results of the election. As a result, the court dismissed the complaint. As this case illustrates, when social media platforms detect wrongdoing, they often remove the accounts or content. While this is a positive development, often the evidence of the accounts or posted contents are not preserved once they are removed, which can stifle efforts at enforcing existing regulations through 23 Romain Rambaud. Droit des Elections et des Référendums politiques, para.1317, p.702. (2020). 24 Lisa Reppell, supra note 2, https://counteringdisinformation.org/topics/legal/1-definitions. 25 Jacob Mchangama & Joelle Fiss, Germany’s Online Crackdowns Inspire the World’s Dictators, Foreign Policy (Nov. 6, 2019), available at https://foreignpolicy.com/2019/11/06/germany-online-crackdowns-inspired-the-worlds-dictators-russia-venezuela-india/. 26 Id. 27 Lisa Reppell, supra note 2, https://counteringdisinformation.org/topics/legal/6-enforcement. 28 Conseil d'État (CE), 4ème chambre, 31 May 2021, N° 441849 (unpublished in Lebon collection) (France), available at https://electionjudgments.org/en/entity/ivjl9exegc. 7