Malcolm Rivera
The internet has become an integral part of political campaigns, with candidates and committees utilizing online platforms to reach voters and disseminate information. However, the use of the internet in political campaigns is subject to various regulations and legal considerations. These regulations aim to ensure fair and transparent practices while also protecting the free speech rights of candidates and citizens. The specific rules vary across different countries and jurisdictions, but they generally cover areas such as campaign financing, advertising disclosures, and the protection of personal information. For example, in the United States, the Federal Election Commission (FEC) regulates online political advertisements, requiring disclaimers and authorizing notices. Similarly, Canada's Elections Canada enforces registry requirements for partisan and election advertising on online platforms. These regulations are designed to promote transparency and accountability in the digital realm of political campaigns.
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What You'll Learn
Online political advertising regulations
The regulation of political campaigns is a complex and evolving area of law, with a variety of rules governing online political advertising. In the United States, the Federal Election Commission (FEC) is responsible for implementing federal election laws, including those related to online political advertisements. The FEC's regulations aim to ensure transparency and accountability in campaign financing.
One key requirement for online political advertisements in the US is the inclusion of disclaimers and disclosures. Disclaimers must identify the entity that financed the advertisement, such as a candidate, committee, or other authorized entity. For example, a disclaimer may state, "Paid for by the [Name] for Congress Committee." These disclaimers are necessary for print, television, radio, and internet advertisements. Additionally, disclosures must be included in campaign communications, indicating who authorized or paid for them. The specific requirements for these disclosures vary depending on the state and the type of committee involved.
The format and presentation of disclaimers are also regulated. They should be easily accessible to the recipient with a maximum of one action required to view them. This can be achieved through various means, such as hover-over text, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page.
In addition to disclaimer and disclosure requirements, there are also rules governing the use of robocalls and robotexts in political campaigns. The Telephone Consumer Protection Act (TCPA) sets out specific regulations for these automated communications. Political campaigns are generally exempt from the National Do Not Call Registry requirements. However, prior express consent is required for autodialed or prerecorded voice calls, texts, or voice messages sent to mobile devices. On the other hand, political robocalls to landlines are permitted without prior consent, but they should not exceed three calls to the same number within a 30-day period.
It is important to note that the landscape of online political advertising regulations is constantly evolving, with court rulings and legislative changes occasionally modifying the rules. For example, in 2004, a federal district court ruling prompted the FEC to reconsider its approach to federal election laws regarding internet activity, leading to new regulations in 2006. More recently, in 2022, the US Supreme Court ruled in favor of Senator Ted Cruz, who challenged restrictions on his campaign committee's ability to repay personal loans with post-election contributions, citing free speech concerns.
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Text and email communication rules
Text and email communication have become integral to political campaigns. Here are the rules that govern their usage:
Text Message Communication Rules:
- Political campaign-related autodialed or prerecorded voice calls, including autodialed live calls, autodialed texts, and prerecorded voice messages, are prohibited to cell phones, pagers, or other mobile devices without the called party's prior express consent. This is in accordance with the Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC) regulations.
- Manual text messages sent individually without the use of autodialer software can be sent without prior consent.
- Campaigns must honor opt-out requests if the recipient replies with "STOP".
- Text messages sent to over 500 recipients must contain a disclaimer identifying the committee or individual that financed the communication.
- Text messages must comply with the FEC rules to adhere to US regulations.
- If a text message is used for fundraising, the Federal Election Commission (FEC) has additional regulations, including the requirement for subscribers to opt in.
- If a text message is sent from a 10DLC number (those with a local area code), the organization must first register directly with Campaign Verify and obtain an Authorization Token.
Email Communication Rules:
- Emails sent by a political committee to over 500 recipients must contain a disclaimer identifying the committee or individual that financed the communication.
- If the candidate or campaign authorizes and finances the email communication, the notice must state that it was paid for by the authorized committee.
- If the email is authorized by the candidate or campaign but paid for by another party, the communication must identify the person who paid for it and state that it was authorized by the candidate or campaign.
- Email communications must also adhere to the FEC's advertising and disclaimer requirements.
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Campaign funding and spending rules
In the United States, the FEC's regulations focus on paid internet political advertisements, which are subject to campaign spending limits and other restrictions. These advertisements must carry disclaimers, disclosing that they were paid for by a specific party or candidate. The disclaimers must also include specific information, such as the full name of the paying entity and their contact information. Additionally, the regulations vary depending on the type of committee involved. For example, if a candidate or campaign authorizes and finances a covered communication, the notice must state that it was paid for by the authorized committee. On the other hand, if the communication is authorized by the candidate but paid for by another entity, the notice must identify the payer and state that it was authorized by the candidate.
The FEC's rules also address political text messages and robocalls. While campaign calls and texts are generally exempt from the National Do Not Call Registry requirements, specific rules under the Telephone Consumer Protection Act (TCPA) must be followed. Political robocalls to landlines are permitted without prior consent, but there is a limit of three calls within any consecutive 30-day period. For mobile phones, prior express consent is required for autodialed or prerecorded voice calls and texts.
In Canada, the Canada Elections Act (CEA) defines regulations for partisan advertising and election advertising on online platforms. Online platforms, as defined by the CEA, are required to maintain a digital registry of all regulated ads and the authorizing entity. The timing of the ad transmission is crucial, as issue ads transmitted outside the election period are not regulated. The content of the advertisements must be associated with a specific candidate or registered party, addressing issues such as social, domestic, or foreign policy.
It is important to note that the regulations surrounding campaign funding and spending are complex and dynamic, with ongoing discussions and rulings that clarify and adjust these rules.
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Website and social media rules
Political campaigns have adapted to the digital age, with candidates and committees utilising websites and social media to reach voters. However, this new landscape comes with its own set of regulations that must be followed to ensure fair and transparent practices.
Disclaimers and Authorisation Notices
Websites and online advertisements must include disclaimers and authorisation notices. If a candidate or campaign authorises and finances a communication, the notice must state that it was paid for by the authorised committee. For example, "Paid for by the [Name] for Congress Committee". If the communication is authorised but paid for by an external group, the notice must identify the payer and state authorisation by the candidate.
Online Advertisement Disclosures
Online advertisements, including those on social media, must adhere to specific disclosure requirements. These vary depending on the type of advertisement and the payer. "Online platform-disclosed advertisements" refer to ads on social media or other platforms that allow user engagement and content posting. These have distinct disclosure rules from other electronic media advertisements.
Restrictions on Social Media Use
Grantees and their staff are prohibited from engaging in lobbying or political activities on social media. This includes endorsing candidates, adding reactions, or sharing/reposting political content. The same rules that apply to physical signs also apply to social media posts. Additionally, federal employees are restricted from using email or social media to distribute partisan political content.
Robocalls and Robotexts
Political campaigns often utilise automated calls and texts. While these are exempt from the National Do Not Call Registry, they must comply with the Telephone Consumer Protection Act (TCPA). Prior express consent is required for autodialed or prerecorded voice calls and texts to mobile devices, including cell phones and pagers. However, political robocalls to landlines are generally permitted without prior consent, with a limit of three calls per 30-day period.
Additional Considerations
It is important to note that regulations may vary based on the specific platform or medium used. Additionally, different states may have their own specific requirements for online advertisements and social media usage. Always refer to the relevant government sources for the most up-to-date and comprehensive information.
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Libel and free speech laws
Libel and slander laws are an important consideration for political campaigns, especially with the rise of the internet and social media as key platforms for political discourse. Libel, or written defamation, includes any false and harmful statements made in writing, such as on internet websites, blogs, and message boards. Slander, on the other hand, refers to spoken defamation.
Defamation laws aim to protect individuals from false statements that harm their reputation. To prove defamation, one must show that a false statement of fact was made, which could be proven true or false, and that a reasonable person would understand it as a true statement. However, it's important to note that defamation claims are often balanced against free speech protections guaranteed by the First Amendment, particularly in the context of political speech.
In the United States, the First Amendment strongly protects political speech, and the Supreme Court has set very high standards for imposing defamation liability in this context. Public officials or figures filing defamation suits must prove not only that a statement is false but also that the speaker knew it was false or recklessly disregarded the truth. This standard was established in Sullivan, where the Court held that factual errors or content defamatory of official reputation are insufficient to warrant damages for false statements.
Additionally, the Federal Election Commission (FEC) and Federal Communications Commission (FCC) have regulations governing political advertisements and communications. The FEC requires disclaimers for internet solicitations, including on mobile devices, and specific disclosure requirements for online platform-disclosed advertisements. The FCC, on the other hand, regulates political campaign-related robocalls and robotexts, requiring prior express consent for calls or texts to mobile phones.
While these regulations provide some guidelines for political campaigns using the internet, the line between protecting reputations and upholding free speech remains a delicate balance, and each case must be carefully evaluated to determine whether defamation or free speech takes precedence.
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Frequently asked questions
The Federal Election Commission (FEC) has implemented regulations for online political campaigning, which include restrictions on online paid political advertisements. These regulations ensure that paid political advertisements carry disclaimers, stating which party or candidate funded them.
The Telephone Consumer Protection Act (TCPA) outlines the rules for campaign robocalls and text messages. Political robocalls to landlines do not require prior consent, but there is a limit of three calls within any consecutive 30-day period. For mobile phones, prior express consent is required for both robocalls and text messages.
In Canada, there are two categories of ads: partisan advertising and election advertising. Online platforms that meet the definition of selling, offering, or providing advertising space must maintain a digital registry of all regulated ads and the authorizers.
The regulation of money in politics often implicates First Amendment issues. While contribution limits have been upheld by the Supreme Court to prevent corruption, expenditure limits have been struck down as violations of free speech.
Some notable cases include Citizens United v. Federal Election Commission (2010), which overturned restrictions on corporate spending in campaigns, and Buckley v. Valeo (1976), which upheld contribution limits but struck down expenditure limits.
