LESSONS FOR REGULATING CAMPAIGNING ON SOCIAL MEDIA investigation or legal processes. Although there is a need to balance this issue with the protection of personal data, this case raises the importance of considering obligations for platforms to preserve and provide information as evidence when content may violate local laws. 29 “But I’m not a politician!”: What if the poster isn’t a political player? When applying campaign regulations to social media content, judges have an important role to play in protecting an individual’s right to free speech and political expression. 30 This can be particularly challenging as legislatures aim to regulate online speech which does not always fit into clearly defined categories, and when changes in the social media environment can quickly outpace legislative processes. Balancing fundamental rights—freedom of speech, the equal treatment of candidates, and the protection of voters from undue influence and intimidation—can also be particularly challenging when applying the law to the broad range of actors that are active online. From the review of cases on ElectionJudgments.org, public officials emerged as one category of user whose online activity can raise legal questions about the balance between free speech protections and preventing the abuse of state resources – including the use of official accounts or online content – in election campaigns. For instance, in Kosovo, the Prime Minister was accused of using a photo of the Director of Kosovo Police, without their permission, in a Facebook video promoting his campaign for public office. 31 In this case, the Election Complaints and Appeals Panel found that the candidate took advantage of a public employee to advance his political campaign. In a case brought in South Korea, a public-school teacher, considered a “public official” under the country’s Public Official Election Act, was charged with violating election campaign laws by posting a news article that asserted that a particular candidate was lying. 32 The Constitutional Court suspended the prosecution in this case, finding that posting political content alone was not enough to establish that a public official was illegally campaigning. In the South Korea case, the Constitutional Court stated that the contents of the post as well as other circumstances must be examined to determine whether there was intent and strategy to help a certain candidate win or lose in the election or simply spontaneous political speech. In making this determination, some of the circumstances examined by the Court included the volume of related posts on the social media account, whether the account was created close to election day, and whether an excessive number of people were added as friends during the period that political content was being posted. Identifying standard legal criteria regarding the circumstances of online speech in 29 Lisa Reppell, supra note 2, https://counteringdisinformation.org/topics/legal/6-enforcement. 30 Article 19 of the Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression; this right includes “the freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Freedom of expression is especially important in the context of elections, along with the right to freedom of association with others, and the right and opportunity to be elected in genuine, periodic elections. UN High Commissioner for Human Rights, International Covenant on Civil and Political Rights C/21/ Rev.1/Add.7s, 7 December 1996, General Comment No. 25, arts. 22 and 25. 31 Kosovo Police v. Mustafa (A.nr. 216/2019) (May 10, 2019) (Kosovo), available at https://electionjudgments.org/en/entity/tom4gelcafa. 32 Case on Election Campaign by Teacher via Social Networking (2016Hun-Ma1071) (Feb. 27, 2020) (South Korea), available at https://electionjudgments.org/en/entity/9y5ojpp06du. 8