LESSONS FOR REGULATING CAMPAIGNING ON SOCIAL MEDIA on the results – something that might consolidate through the evolution of case law or be clarified as regulations are further adapted to common campaign practices on social media. When jurisdictions do establish regulations for online campaigning, courts may be called on to determine their constitutionality. This can be especially critical when regulations place restrictions on online speech. For example, in South Korea, the Constitutional Court was called on to rule on the constitutionality of a legal provision that prohibited candidates from publishing a column, comment, contribution, or writing on online media within 90 days of the election. 16 In this case, the Court acknowledged that while the restriction was intended to avoid unfairness in election news reporting online and the circumvention of campaign rules, it was overly broad since it prohibited the online publication of information that may not necessarily be political speech or otherwise tied to an election campaign. Thus, the Court found that the provision was an unconstitutional restriction on the complainant’s freedom of speech. In 2018, France took a unique approach to regulating misinformation and disinformation around elections, adopting a new law aimed at combatting fake news during campaign periods that gives judges the responsibility to determine whether content should be blocked if it meets three criteria – is manifestly fake, disseminated deliberately on a massive scale, and disrupts public order or affect the outcome of an election. 17 It also requires news and social media platforms to establish transparent mechanisms for users to report disinformation and to disclose sources of funding of sponsored content in the 90 days ahead of an election and inform users about how their information is being used to promote sponsored content. 18 The adoption of this law was highly controversial, with many criticizing the 48-hour time frame for judicial decisions to be insufficient and highlighting risks to the freedom of the press. 19 Critics also fear that it may create incentives for platforms to block more content than necessary to avoid liability, eroding freedom of expression. 20 A similar provision in the Electoral Code targeted at political parties and candidates was raised in a recent case in France. 21 This provision makes it an electoral offense subject to a 15,000 Euro penalty and a year in prison for “those who, with the help of false news, slanderous rumors or other fraudulent maneuvers, have caused one or more voters to abstain from voting.” 22 A candidate on the party list for the 2020 municipal elections was accused of publishing fake news when they posted on Facebook to inform voters of the special measures of voting under COVID-19 (proxy voting) and encourage voters to take their ballot to the polling station in person. While the complainant argued the 16 Case on Restricting Online Media from Publishing Columns, etc. Written by Candidates for Public Official Election (016Hun-Ma90) (Nov. 28, 2019) (South Korea), available at https://electionjudgments.org/en/entity/6q3j67x1phf. 17 France, Organic Law no. 2018-1201 and Law no. 2018-1202 of 22 December 2018 relating to the fight against disinformation. These laws led to the insertion of two new articles in the French Electoral Code: Article 163-1 and 163-2. 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/researchpublications/english/2021in14-measures-to-tackle-disinformation-in-selected-places-20210623-e.pdf 18 Id. 19 Adam Nossiter, Macron Pushes Bill Aimed at ‘Fake News’ as Critics Warn of Dangers, The New York Times (June 6, 2018), available at https://www.nytimes.com/2018/06/06/world/europe/macron-france-fake-news.html. 20 Research Office, Legislative Council Secretariat of Hong Kong, supra note 15. 21 Conseil d'État (CE), 6ème chambre, 28 May 2021, N° 445567 (unpublished in Lebon collection) (France), available at https://electionjudgments.org/en/entity/fgurl25x98d. Article 97 of Electoral Code. 6