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Legislation or binding regulations related to electoral events may include measures to protect the information landscape around the electoral process. The design of such policies should take into careful consideration human rights commitments, the broader democratic environment in the country and the nature of regulatory bodies and other institutions in place. As with the design of other electoral legislation, the process by which it is designed and adopted is key to its effectiveness and credibility. Where they impose restrictions, they should meet a high threshold of legality, legitimacy, necessity and proportionality. In many circumstances, it may be more appropriate to identify other mechanisms to curtail the actions of various actors, such as codes of practice or codes of conduct.
Advising the responsible bodies regarding the design of information integrity measures within legislation or regulations related to electoral processes. These are intended to be binding measures, which may address a number of features. Along with working on the specific provisions, a key part of the advisory task is to provide recommendations on the process used to design the articles, seeking an inclusive and meaningful consultation.
Fundamentally, advice would be best centred on human rights, seeking to prevent undue burdens of freedom of expression, taking into consideration legality, necessity and proportionality. A broader understanding is needed on related legislation and its effectiveness—such as data protection, online safety, defamation and harassment—to recognize where existing statutes may already provide responses and to identify gaps.
There is a debate around who should be targeted, and what is the most efficient avenue for regulating the information environment—the creators of content or the technology firms that act as intermediaries. Broadly, relevant legislation is concerned with the activities of platforms, political contestants, media and the regulatory bodies.
Another debate considers how best to frame an approach to legislating content moderation requirements upon platforms. One view focuses on the rules around items of content, while others highlight measures to enforce process rights for recourse for individual users. An emerging approach believes that neither are satisfactory, and instead legislators should approach content moderation from a systems perspective, considering how to design processes and institutions that can help to shape content moderation decisions.
While we do not provide recommendations, some key areas that current or prospective legislative efforts attempt to prescribe include:
Content-Related Provisions – approaches that are concerned with what is appropriate, for example:
Process-related provisions – Approaches that are concerned with mechanisms that provide recourse around content moderation decisions, for example:
Political advertising provisions – Cross-cutting rules that govern what the various actors are allowed to do related to political advertising, in particular around an election campaign, for example:
Systemic provisions – Approaches that attempt to address information integrity concerns outside of specific content items:
There are a number of ways by which legislatures may seek or obtain advice on the design of laws to support electoral information integrity. For example, they may seek the counsel of national experts, academics or international organizations. They may also receive recommendations from relevant national organizations working in the field.
Given that much information pollution in the election space is gendered, specific protections may be called for. Attention to the impact of the provisions on various components of society is vital. In particular, attention should be paid to how provisions will impact the voices of minorities of all forms or new political positions.
As with other legislative provisions and amendments, ensuring wide coverage of the process is essential to building confidence in the eventual outcome. Announcements of the key legislative steps, provisions and consultations are possible basic avenues.
Consideration should be given to commitments that exceed a single election and the resource impositions related to them. Given the nascent nature of this field, and the fast-changing field of technology, advice should recognize that provisions may need to change between elections and that mechanisms should be established to monitor the success of the measures. One way of contributing to this is grounding approaches in fundamental rights and transparency provisions. Another consideration is to assign an appropriate flexibility to the regulatory body.
The legislative support around electoral activities is often a subset of a broader legislative review, potentially of electoral or general information integrity legislation. Alternatively, it may be conducted separately to enhance existing legislation. While it is difficult to truly advise upon costings without a clear vision of a particular project, some factors to consider include:
Experts – The availability and rates of appropriate advisory expertise is one factor. Identifying appropriate experts may be complex in this emerging field, and potentially outside of the more traditional pools of legal specialists. The duration of the engagement and the concentration of the activity will also play a role in how support is offered. Legislative processes will vary in timeframe and structure.
Research – Typically, the work would be initiated by a review of the broader review of the relevant legislation, which may be commissioned.
Activities – Depending upon the design of the activity, support to public consultations may be required. Here, consideration should be given to expert inputs from organizations—local, regional and international—who are involved in the information landscape of the country. Beyond the identification and recruitment of appropriate facilitators, the organization of such activities must be provided for.
Technology – The nature and extent of consultations will influence the requirements and costs. In-person consultations are possible; however, digital consultations are increasingly being pursued, at least for some cohorts. These may include online meetings, electronic surveys or online collaboration. These digital approaches require particular technological and organizational capacities, including software licenses.
United Nations key documents and guiding principles
UN Electoral Policy Directives and Guidelines
The Digital Services Act is part of a package that seeks to improve online safety, protect fundamental user rights, and address some commercial competition concerns. Specifically, with regards to information integrity, the DSA intends to enhance the mechanisms for public oversight of platforms, the removal of illegal content and protection of users’ rights online.
Essentially, it is an ambitious overhaul of EU law to harmonize existing approaches and introduce newly devised requirements. It targets various types of intermediaries, looking beyond just social media companies, but also providers of hosting services, search engines and internet infrastructure. Obligations range from various transparency requirements to due process for challenging content removal, from, cooperation with national authorities, to a broadening of content moderation.
While the provisions of the new regulation are considerable, the process by which they were designed is illustrative of the need for inclusion and deliberation. Before proposals were submitted in December 2020, there had been a long consultation (see examples section) period that commenced in June 2020, involving thousands of participants from varying walks of life. And while the DSA finally came into force on 16 November 2022, not all provisions will be in place until 17 February 2024 to allow reasonable accommodation of the new requirements.
Overview – Legal and Regulatory Responses | Countering Disinformation
This resource combines the collective experience of the organizations belonging to the Consortium for Elections and Political Process Strengthening (CEPPS), namely IFES, IRI and NDI. This living project provides an outline of what’s being done to address the challenge in key areas and a searchable inventory of the organizations around the world engaged in making the digital landscape safe for democracy.
EU Consultative Process for the Digital Services Act Package
The EU set out a consultative process as part of its evidence-gathering exercise to feed into the Digital Services Act Package. This consultation covered a series of topics related to the environment of digital service and online platforms.
UK government consultative process and coordination mechanism
The UK government set out the results of the formal consultation and clarified its direction of travel in the Online Harms White Paper – Initial government response, published in February 2020. Furthermore, given that tackling online harms is a global problem and that legislation and regulation in the UK, and elsewhere, forms only part of the response required, the government has been working closely with many international partners to address this shared challenge in order to work towards common approaches to tackling online harms.
A Digital Regulation Cooperation Forum was created in the United Kingdom as a coordination mechanism amongst multiple bodies and agencies sharing responsibility for oversight.
Canadian consultative process
One component of the multi-year Digital Democracy Project is an annual Citizens’ Assembly on Democratic Expression that considers the impacts of digital technologies on Canadian society. The Assembly is selected using a civic lottery, a process which employs random selection while ensuring that it broadly represents the diversity of the Canadian population.
The latest Assembly took place between June 15-19 in Ottawa and focused on Online Safety. Participants heard views from a representative group of citizens on the core elements of a successful legislative and regulatory framework for Online Safety. For more information, see the report detailing the Assembly’s recommendations to the federal government, and the Canadian public.
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