LESSONS FOR REGULATING CAMPAIGNING ON SOCIAL MEDIA frameworks have been adapted to regulate campaigning online and via social media platforms. 2 Some states have reformed their legal frameworks to directly regulate social media. In 2020, Germany drafted new definitions of media to include different modes of digital media; for example, broadcast-like mediums, media platforms, user interfaces, and “. . . search engines, smart TVs, language assistants, [and] app stores.” 3 In June of 2021, the House of Commons in Canada passed Bill C-10, a sweeping new law to regulate social media companies like Facebook and YouTube. 4 Other jurisdictions have introduced broad new legislation prohibiting “fake news” that present concerning implications for free speech and expression. 5 However, most countries have not updated their legal and regulatory frameworks to account for the increasingly sophisticated digital tactics used by campaigns. 6 Some of the challenges in regulating digital conduct stem from the conflict of competing rights familiar to other parts of the electoral framework – balancing protection from harms or electoral equity against the freedom of expression, for example. Social and digital media also alter the modes of campaigning in unique ways. There is no legal consensus around fundamental definitional considerations, such as what range of technologies constitute digital or social media; how to define the boundaries between organic and paid engagement on social media; or what constitutes an online advertising expenditure. The development of regulation moves at a slower pace than the evolution of technology, creating a bias toward regulation that addresses well-understood challenges of yesterday rather than anticipating the challenges of tomorrow. Enforcement is also difficult, given the challenges of monitoring online content and advertisements, as well as insufficient transparency around, for example, the use of personal data or undisclosed paid relationships between political actors and online content created or posted by third parties. “We sympathise with the Commission, which has a difficult mandate and must work with patchwork legislation that is difficult to make sense of and only partly adapted to the disruptive, unruly and increasingly powerful medium of communication that is the internet. We will take interpretation so far as we can, acknowledging … that there comes a point where the legislature must be left to change the law if it thinks fit.” 2 Lisa Reppell, Legal and Regulatory Responses to Disinformation in Countering Disinformation: A guide to promoting information integrity. CEPPS (updated Apr. 1, 2021), available at https://counteringdisinformation.org/node/2704/. 3 Id. at https://counteringdisinformation.org/topics/legal/1-definitions#DigitalSocialMedia. See Osborne Clark, New State Treaty on Media to replace Treaty on Broadcasting and to create legal framework for a changed media landscape (June 24, 2020), available at https://www.lexology.com/library/detail.aspx?g=e50f9bb5-95bb-4293-b3d5-3fc4d0b3e84c. 4 Bill C-10 (June 21, 2021) (Canada), available at https://parl.ca/DocumentViewer/en/43-2/bill/C-10/third-reading#ID0E0CC0AA. 5Reuters, Factbox: ‘Fake News’ laws around the world (Apr. 2, 2019), available at https://www.reuters.com/article/us-singapore-politics-fakenews- factbox/factbox-fake-news-laws-around-the-world-idUSKCN1RE0XN; Research Office, Legislative Council Secretariat of Hong Kong, Information Note: Measures to tackle disinformation in selected places (2021), available at https://www.legco.gov.hk/research-publications/english/2021in14measures-to-tackle-disinformation-in-selected-places-20210623-e.pdf; Lisa Reppell, Beata Martin-Rozumiłowicz & Vasu Mohan, Preserving Electoral Integrity During and Infodemic, IFES COVID-19 Briefing Series (2020), p. 15, available at https://www.ifes.org/sites/default/files/ifes_covid19_briefing_series_preserving_electoral_integrity_during_an_infodemic_june_2020.pdf. 6 Lisa Reppell, supra note 2, https://counteringdisinformation.org/node/2704/. 2