Election regulators and social media - oil, meet water.Exploring the Legal Implications of Social Media in the Election Process

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The CBC reports that Quebec's chief electoral officer is studying new rules on "cybercampaigning":

As the internet plays an increasingly important role in political campaigns and elections, rules and laws need to evolve in order to keep the playing field level, said Quebec elections director Marcel Blanchet.

The province's election office is studying how the internet has changed campaigning and electioneering, and will come up with recommendations to modernize current laws, Blanchet told the Canadian Press.

(The original story by La Presse Canadienne is here. By the way, the first new rule should be to ban the term "cybercampaigning". But I digress.)

(TV election coverage) And in the seventh congressional district, it's Chen defeating Tavistock, 29,547 Facebook friends to 25,804.That's one mighty angry hornets' nest Blanchet is poking, and I'll be surprised if the comments on that CBC story don't rapidly fill up with cries of outrage, echoed in the blogosphere. Let me try to channel a few of them in anticipation: "Quel n00b! You can't regulate the Internets!" "Yet another self-important bureaucrat who doesn't get it." "It's censorship! Soon you'll have to register your blog with the government!"

Admittedly, election officials have sometimes been more than a little hamfisted in their initial efforts to come to grips with the web. (That "register your blog" thing isn't as wacky as it might seem, given the experience in B.C.) But that doesn't mean there's no role for oversight and even regulation when it comes to digital campaigning.

For instance, you could make a very strong case for rules that require a campaign to clearly identify any video material they produce as fodder for a supporter-created-media push. Or a prohibition on phony grassroots blogs, purporting to be written by ordinary voters while being underwritten by a campaign. Or a requirement that anyone being paid by a campaign to blog on their behalf to disclose that fact clearly and prominently.

But how about when third parties with deep pockets jump into the pay-per-post arena? Or crank out slick video clips – either as standalone material or as mashup bait? Suppose it's not overtly in support of a particular party or candidate, but advocates a policy stance clearly associated with them? Recent legislation sharply limits that kind of spending in many Canadian jurisdictions when it comes to traditional advertising; it's not a big leap to apply those caps to the online realm.

Then you come to individual bloggers, especially those with significant audiences. We're fond of thinking of blogging as little different from talking to your neighbour over the fence, or writing a letter to the editor. But if you've put, say, Google Ads on your blog, you're in a sense saying that you have an audience whose attention has a tangible value – and that you're willing to market that attention. So if you direct that attention to the promotion of a candidate or party, are you making a donation in kind?

Does this feel like the counting of so many angels on the heads of so many pins? Maybe. But there are real issues underlying these questions... and a real reason for election spending restrictions. Wealth and power tend to walk hand-in-hand; limiting the influence of money helps to avoid magnifying the concentration of political power in the hands of the wealthy.

The ability to reach large audiences has traditionally skewed toward the wealthy and powerful - but social media is eroding that. With audience comes influence... and the interest of regulators. And if the parade of enthusiastic amateurs who are creating so much of social media are unprepared for that interest, well, regulators (and especially their legal environment) are at least as unprepared for dealing with social media.

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