LESSONS FOR REGULATING CAMPAIGNING ON SOCIAL MEDIA posts, while the Mexican candidate spoke more broadly of opinions on a variety of social issues (even if some seemed to overlap with his policy platform). As part of its analysis, the Federal Election Tribunal of Mexico differentiated online content from traditional broadcast media, explaining that audiences on the internet must have intent and take action to seek out information based on their interests, while on radio or television, advertisements are presented spontaneously without the explicit will or interest of the consumer. In the Court’s analysis, this evidence pointed to the fact that the posts at issue would not be considered an anticipated campaign act by Mexican legal standards, but rather personal ideas and opinions shared with an interested audience that had signed up to receive the content. However, the Superior Electoral Court of Brazil came to the opposite conclusion in response to a similar argument made by an appellant, who asserted that because access to content on Twitter depends on users actively seeking it out, it cannot be considered campaigning. The Court disagreed, noting that content posted on Twitter can reach any internet user that accesses the site, extending even beyond the poster’s direct followers given the ability to “retweet” content and the interconnected nature of social media services and internet communication tools, particularly when there was no effort made to make content private. The lower Court’s decision (which was affirmed by the Superior Electoral Court of Brazil) also distinguished social media posts from content that might be provided in interviews on traditional media by emphasizing that while traditional media outlets report on information that they determine is of interest to society, on Twitter, “the user selects what he considers to be interesting and makes its messages known to society.” In emphasizing that social media platforms lack the editorial processes of traditional media, the Court hits on an important function of social media—that of dissemination, rather than social interaction and debate—which has unique utility when it comes to campaigning. While these two cases are now nearly a decade old, the different conclusions reached by the courts highlight the importance of adopting tailored approaches to effectively regulate online campaigning 9 as well the need for the judiciary to understand how different social media platforms function in practice so they can render meaningful judgments. While the former represents an ongoing challenge for the field, training and resources designed to help judges understand the functional underpinnings of social media platforms and the strategies that political actors use to campaign online could be one way to help courts bridge the gap while good practice emerges for regulation in 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.” – Lisa Reppell in the Countering Disinformation Guide 9 Lisa Reppell, supra note 2, https://counteringdisinformation.org/node/2704/. 4