File:Julia Kalinina - Challenges in Political Advertising Law in the Digital Age.pdf

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political advertising law the age social media challenges updating “analog” laws digital 21st century cases canada and international transnational intensive program osgoode hall school final research paper april julia kalinina word count 7,839 words not including cover page footnotes bibliography) introduction common theme conversations about online “fake news” that misinformation disinformation1 have always existed however nature internet compared 20th century's print broadcast mass – such age's opaque system filters algorithms its communication speed interactivity information unprecedented data collection changed playing field which takes place turn way disinformation happens american first amendment scholar jack balkin suggested “in studying ask ‘what genuinely new here?’ wrong question.”2 what matters how contemporary technologies change conditions people communicate3 “and whether makes more salient has already been present some degree.”4 done created opportunities for mis disinformation,5 exploited actors gain especially over past several years there dramatic shift communications aiming persuade voters example electoral commission reported uk's general election campaigners spent nearly their total budgets advertising; figure was double share took federal (23.9 parliamentary investigations number countries house commons culture sport committee dcms recommended july interim report “disinformation fake news'” british government avoid using term referring problem reasoned “developed own, loaded meaning,” “content reader might dislike disagree with.” see sports report” 2018) fifth session 2017-2019 para available at: https /www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport- committee/inquiries/parliament-2017/fake-news-17-19 president donald trump described certain outlets “the news media” true enemy people.” applying reasoning this instead apply method reports use “misinformation” refer “inadvertent sharing false information” “disinformation” “deliberate creation and/or manipulate intended deceive mislead audiences either purposes causing harm personal financial gain.” also accepted committee, (18 february /publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/179104.htm. “commentary speech democratic theory freedom expression society” nyu rev /papers.ssrn.com/sol3/papers.cfm? abstract_id=470842 supra note nabiha syed “real talk towards better platform governance” yale lj. /www.yalelawjournal.org/forum/real-talk-about-fake-news “digital campaigning improving transparency voters” june concluded registered third parties had used advance goals ran contrary traditional campaigned brexit referendum fined maximum statutory fines breaking laws7 companies faced equally strong sanctions well.8 but despite space most regulate paid remain pre-digital when them were drafted reform society put “[s]o much yet our campaign rules remained analog age.”9 considers relates argues need urgently updated account digitization public life legislation will require regulation content however, rather than imposing restrictions argue process extension existing recognition landscape incentives tech giants well lack expertise balancing areas diverse privacy human rights may preclude reliability legal arbiters space. structured four parts part outlines almost all discusses differ from generally regulates context elections compares legislative initiatives /www.electoralcommission.org.uk _data/assets/pdf_file/0010/244594/digital-campaigning-improving- transparency-for-voters.pdf these figures show tends less costly henk kox “targeted competition privacy” (2017 econ mgmt strategy /papers.ssrn.com/sol3/papers.cfm?abstract_id=3021392. emma graham-harrison “vote leave broke democracy shaken” guardian /www.theguardian.com/politics/2018/jul/17/vote-leave-broke-electoral-law-and- british-democracy-is-shaken matthew weaver jim waterson “leave.eu ₤70,000 breaches law” /www.theguardian.com/politics/2018/may/11/leaveeu- fined-70k-breaches-of-electoral-law-eu-referendum. bbc “facebook ₤500,000 cambridge analytica scandal” october /www.bbc.com/news/technology-45976300 consideration repercussions violations during ewan mcgaughey “could void?” king's /papers.ssrn.com/sol3/papers.cfm?abstract_id=3232632. “reining wild west century” /www.electoral-reform.org.uk/latest-news-and-research/publications/reining-in-the-political-wild- west-campaign-rules-for-the-21st-century aim address gaps proposed honest ads act10 recently-enacted modernization act11 canada. iii misses organic reach is, unpaid “political content” section defining standards around acceptable builds balkin's argument exist elections.12 although carry risk unjustifiable infringement requires similar exists finally conclude because central become deliberation re- establishing confidence institutions independent regulator capable competing interests between accountability expression. challenge purpose maintain level among candidates party prevent usurping where deliberations happens.13 regulations found with respect include temporal limits campaigns traditionally expensive donations spending requirements disclosures printed advertisements bear source ad's funding reporting expenses.14 wood ravel's definition defines any can seen heard, act 115th congress 2017-2018 “free algorithmic big private governance regulation” davis /lawreview.law.ucdavis.edu/issues/51/3/essays/51-3_balkin.pdf application varies three states. read promoting opposing candidate.15 provide overview functioned set coming discussion fail capture era campaigning. act16 (cea governs contains many control cea s.319 “transmission period message promotes opposes candidate one position issue associated.” does mention medium transmitted therefore sections specify “broadcasting” “periodical publication[s]” only, under s.348 person charge rate broadcasting periodical publication “exceeds lowest charged equal amount equivalent space” specifies only publication” included provision. cea's 359(1 every third-party actor file within months must contain “a list expenses” time “of expenses related” s.359(2 again requirement extend clear covered third-parties non- advertisers communicate regulated submit they contribute adjusted yearly inflation post-election foreign electioneering abby ann ravel “fool once regulating other advertising,” southern california review /papers.ssrn.com/sol3/papers.cfm?abstract_id=3137311 commissioner commission. buy advertisements. december after parliament recognized passed act17 (ema due into force ahead expected provisions compel publish store amendments further discussed ii. united kingdom referendums (ppera representation rpa establishes guidelines messages responsibilities organizations are restrictive canadian prohibit both aims influence opinion “matters controversy.” non-broadcast forms subject regulation.19 ppera materials required who behind imprints media.20 six four-month turnaround register spend above amount.22 categorized according /www.legislation.gov.uk/ukpga/2000/41/contents. centre “levelling partisan world” unpublished manuscript upon request 7-11. 15-16. thresholds higher £20,000 england £10,000 scotland categories broad specific category campaigning.23 result details directed prohibits campaigns. unique feature applies protection gdpr hold privileged terms collecting authorizes access corresponding collated gathered binds alike includes stronger commissioner's office ico) invoked fine facebook breach scandal allowable drop ocean” facebook's revenues ico said would undoubtedly applied breach.25 (the below declare collect otherwise restrict individuals states feca bipartisan bcra least perhaps role plays culture. primarily fundraising fec disclosure called disclaimers 2016/679 /eur-lex.europa.eu/legal- content/en/txt/pdf uri=celex:32016r0679 “uk failing protect user data” online. /www.theguardian.com/technology/2018/oct/25/facebook-fined-uk-privacy-access-user-data- cambridge-analytica. communications” regarding authorized implements disclaimer made committees “electioneering communications,” defined expressly advocate defeat means “public communication” “any cable satellite newspaper magazine outdoor facility mailing telephone bank advertising.” breadth provision fact ruled largely encompass communicated exception placed fee another person's website.26 interpreted sites successfully petitioned exemptions served claiming technical limitations google asked advisory “text generated users google's search engine perform searches.” model works conducts text display indicating ad; appears “clicks through” majority “under circumstances conduct did violate [feca regulations.”28 similarly site's small characters exempt items impracticability exceptions “bumper stickers, pins buttons pens cannot conveniently printed.”29 split deadlock unable arrive decision gave “loophole” allowed complying online.30 same while ftc discretion pursue “unfair deceptive trade practices claims” against publisher defendants increasing success raising ellen goodman won't end it's start” november /papers.ssrn.com/sol3/papers.cfm?abstract_id=3064451 “faq rules” /transition.fec.gov/pages/brochures/bcra_brochure.pdf shays supp ddc “cultural amendment” northwestern /scholarlycommons.law.northwestern.edu/nulr/vol110/iss5/3 defences criminal regulatory claims involving deliberately misleading speech.31 contributions expenditures nationals campaigns,32 bans corporations directly supporting practice firm candidates.33 town square last moved dramatically particular out european adults surveyed got statistics dollar cents money election, rose important consider particularly differs constantly evolving platforms developed widely-cited as: networks allow “(1 construct semi-public profile bounded (2) articulate whom connection view traverse connections those others system.”37 defamation david klein joshua wueller perspective” (april journal enacted 11-12 “since supreme court ruling citizens effectively bypassed channeling through 'independent action super pacs effect little transparency, oversight financing outlier approach benefits deep pockets able take advantage unregulated loopholes ” service “polarisation technology march panel future science http /www.europarl.europa.eu/regdata/etudes/stud/2019/634414/eprs_stu(2019)634414_en.pdf. danah boyd nicole ellison “social network history scholarship” computer-mediated /academic.oup.com/jcmc/article/13/1/210/4583062. themes emerge academic studies broadcasting.38 characteristics identified voter campaigner know targeted messages39 far too consume creates premium attention40 gatekeepers longer decide publicize chosen suggests work “with eye toward maximizing users’] attention platform”41 (with potentially tendency suggest “become extreme”42 “dark ads” pieces displayed groups specified ad-buyer inaccessible others.44 publicly visible audible sender receiver ever aware existence traceable hoping speak audience.45 facilitates adversing easy post “boosting” promotion “boosted” indicate comes administrator anonymous advertiser office, “investigation analytics parliament” /ico.org.uk/media/action-weve-taken/2260271/investigation-into-the-use-of-data-analytics-in-political- campaigns-final-20181105.pdf. 10-11. “platforms serve individual user’s evan williams co-founded twitter describes follows you glance car crash interprets your glancing desire crashes attempts accordingly supply engaging article hillary clinton’s health feed filter extreme clicking designated republican national convention, buzzfeed reporter ryan broderick learned led “suggested pages” recommend white power memes vladimir putin fan neo-nazi website.” /www.europarl.europa.eu/regdata/etudes/stud/2019/634414/eprs_stu(2019)634414_en.pdf 42-43. “several manipulation techniques mechanisms well-established mainstream misuse harvested micro- targeting psychographic profiling second attention-driven economic ecosystems automated bots.” recipient advertisement “almost being promoted users.”46 “human emerged limited resource succeed commanding leverage gain.”47 kind messaging circulating why, quality engagement decreased trust system.48 top interactive academics features distinguish syed's “five newly conspicuous shape ecosystem online” communities amplification (4) profit incentives.49 bubbles indeed, tend naturally ideas support reinforce points “community” travels established relationships built affinity ideology hobbies, etc.50 element compensate fact-checking shared syed’s fourth characterizations enable amplified quickly travel widely rapidly profit-making puts “[s]ocial make uniquely lucrative exchanges basis clicks incentive generate possible effort sensation wholly fabricated fits straightforward incentives.”51 tess townsend “why isn't” inc.com. /www.inc.com/tess-townsend/facebook-fake-news-political-ads.html. identify relevant understanding likely disguised informational “native” authenticated trusted cheaper produce print. 346-351. she persuasive “even anchor obama’s birth certificate community composed members alternative perspectives certificate.” point difference sources conduits vast constituted audience products.”52 produced own backed professional reputation published creative artists often staked delivered public.53 hand business induce speak, each allows sell even “[i]deally like earth incessantly check feeds unlike movie studio television station enough large audience. needs perpetually content.”54 fit now play implications numbers daily percentage get indicative debates desirability “i voted” button indicated increased turnout half percent swing election.55 status entities, publishers etc56 remains uncertain.57 director policy hannes grassegger says ‘voter button’ good should giant nudging all?” /www.theguardian.com/technology/2018/apr/15/facebook-says- it-voter-button-is-good-for-turn-but-should-the-tech-giant-be-nudging-us-at-all critique public/private dichotomy analyses efforts justify absence michelle castillo “zuckerberg tells company” /www.cnbc.com/2018/04/11/mark-zuckerberg-facebook-is-a-technology-company-not- media-company.html lawyers contradicted statement argued company protections sam levin “is yes” “tech liability based raises jurisdictional enforcement concerns external agencies increasingly involved analysis outside periods extent involvement hard ascertain.”58 practicalities that, cheap offers shifted low-cost year-round law.59 amounts ways scale contained sparked potential nefarious infiltrate year-long investigation written newspapers “not purpose” age.60 uk, considered current relate scratch responded opening draft move less-transparent provides advertising” /www.theguardian.com/technology/2018/jul/02/facebook-mark-zuckerberg-platform-publisher-lawsuit. century,” charles hymas “britain's combat say mps” (february telegraph /www.telegraph.co.uk/politics/2019/02/17/britains- electoral-laws-not-fit-purpose-combat-disinformation country until iii. proposals adapting conducting third-party, official unofficial target year authorities complicated” undertaken released results bodies urged legislate greater sphere ensure seeing why sent them. posed meaningful recommendations noted “imprint” sets materials.61 two principal immediate changes needed imprint stating scrolling detailed campaigning.62 estimated campaigners' sharp increase 23% currently sub-divide returns transparent understand growing.63 investigatory powers, powers enablers commissioners suspect broken violators stand ₤20,000 per offence, pointed merely “cost doing business.”64 urging create easily-accessible database wanted “to deliver clarity adverts come databases planned 2020.”65 comply,66 direct necessary outright regulation, overseen regulator.67 keeping since funded uk-generated activities whereas working tailored beginning upcoming “ad library” /www.facebook.com/business/help/2405092116183307 library implement brazil union india israel ukraine compiles weekly “[t]ransparency priority help interference elections, additional related politics issues importance spend, entities.” complete authorization runs “issues importance” reviewed. deemed appear notified disclaimer. synopsis recommendation digital, shorthand series” series /houseofcommons.shorthandstories.com/dcms-committee-disinformation- fake-news/index.html. (but funds originated trough uk-based “[i]n overdue safeguard sources.”68 calls change, distracted extensive investigating suggesting forward.69 implemented canada's response standing ethics report70 agreed focused committee's “concern vulnerable improper acquisition data”71 extended activities” impose labelling (such “structural problems inherent platforms” facilitation disinformation.72 body proactively audit algorithms. ema)73 autumn ema keep registry “political” “partisan” unfortunately short reforming broader function age. “democracy threat risks solutions monopoly” 42nd 1st /www.ourcommons.ca/content/committee/421/ethi/reports/rp10242267/ethirp17/ethirp17-e.pdf responds main announced ban canada, saying impossible comply before election.74 contrast prominent canadians guide ema.75 compliance plans globe mail quoted spokesperson topic discussing.”76 voters' registration continued hinges policies websites data. earn addresses prescribes periods,77 recognizing bound george-cosh “google next election” bnn bloomberg /www.bnnbloomberg.ca/google-bans-political-ads-ahead-of-next-canadian-federal- election-1.1224076. howard solomon screen 18, world /www.itworldcanada.com/article/facebook-canada-creates-advisory- committee-to-help-screen-issue-ads-during-election/416053. ibid. formal “election period” days precede “pre-election period.” andrew coyne “bid overhaul falls liberals hype” /nationalpost.com/opinion/77308983 john ivison “liberals superpacs door half-open funding” /nationalpost.com/opinion/john-ivison-liberals-end-era-of-superpacs-in-federal- elections-but-leave-door-half-open-to-foreign-funding mccullough “justin trudeau's terrible limit citizen activism” washington /www.washingtonpost.com/opinions/2018/12/26/justin-trudeaus-terrible-new-election-rules-will-limit-citizen- activism utm_term c97fb27c3f63. past. step modernize realities facing 2019” “part comprehensive plan country's processes participation activities.”78 act's protection. uses collects secures canadians' choose “can still secure long everyone fills proper forms.”79 act,80 bill senate broadcasting. reflects online81 bill's findings americans cited leading meanwhile pew showed information.82 amend “paid communication.” expand “qualified “communication platform.” “government passes act” website /www.canada.ca/en/democratic-institutions/news/2018/12/government-of-canada-passes- elections-modernization-act.html. h.r cong (1st madison “illuminating dark finance (2018 /mymadison.io/documents/illuminating-dark-digital-politics. “online platform” public-facing web application” 50,000,000 monthly visitors sells ads. thus pinterest youtube.83 adds advertisements.” implementing define marketing, video native sponsorships behalf communicates relating matter importance.”84 though scope uncertain positive development “reasonable efforts” fund weaker nonetheless give chance attach posing activists legitimate concerning commonalities movements aimed addressing recent extending anything electioneering. posts themselves different cut “filter bubbles.” none literacy85 component reach.86 following section. seems characteristic valued non-digital whose profits driven sales driving cultural trend. pressing privacy87 laws. components costs intent votes,88 state constitutes key carries unjustified arguments regulation. phenomenon facilitated low interesting continue resist arguing principles literacy “general comment 16” doc hri/gen/1/rev.1 www1.umn.edu/humanrts/gencomm/hrcom16.htm gathering holding computers, databanks devices law. effective measures taken hands persons receive never incompatible covenant.” notes content.” then historically grounds itself contextualizing theories just justified comparable nevertheless serious france germany well-grounded establishment authorities.89 historical difficult advertisement” “persistent sticky regulation.”90 constraints properly meaning focus governments sought affects “democratic” dominated free speech” justifications found. explains late 19th “rabidly partisan.” principle evolved speakers listeners conglomerates grew profit-maximizing quasi-monopolies came owned production 1920s journalists perceived threats journalism rise propaganda relations 1910s “influenced progressive reforms” global indeed cross-border overall inspiration cosmopolitan reporters gradually whole parties.91 broadcasters provided programming exercise editorial judgment treated controlled freely structural public-interest regulation.93 revolution undermined scarcity bandwidth justification telecommunications nearly- limitless reasons remove infringe courts showing agree.94 “implicit controversial capitalism speech,” subordinates defence capital accumulation economy.” real foster culture,” fair opportunity participate meaning-making mutual constitute individuals.”96 companies.97 opposite codes today early internal pressures. partly sides fairly room educational channels signals spectrum low-income 19-20. 19-20 capitalist identifies right ownership distribution precisely telecommunication enterprises hybrids providers promote owner conduit newspaper's owner.” /www.cnbc.com/2018/04/11/mark-zuckerberg-facebook-is-a-technology-company-not-media-company.html. protections.98 inconsistency difficulty determine experience.99 motived profits, “if lose.”100 inadvertently world’s largest organizations.102 enforce multiple linguistic societal contexts decision-making “secrecy murkiness” process.103 special rapporteur council take-downs imposed clarity” input.104 “marketplace” advanced deregulation justifiable doctrines proving insufficient falling default guardian. /www.theguardian.com/technology/2018/jul/02/facebook-mark-zuckerberg-platform-publisher- lawsuit. coined “ideological drift” “what systems arise transmission industrial fought contract property struggle collection, reason constitutional questions concern expression.” surveillance distributed guarantee democratically collected places relatively resources practical ability analyze data.” youtube microsoft abide code countering illegal hate ‘defending expression’ ‘identifying counter-narratives actual abuse harassment clearly punishable offence twitter’s prohibition ‘behaviour harasses intimidates fear silence voice’ facebook’s two-pronged distinction attack protected class humourous distasteful commentary ‘self-referential’ excessively subjective vague criticized bases moderation.” goal evident truth eventually win “truth stood volume flooded ‘marketplace’ weeks election.”105 attempted illustrated practice. nepa january 2018,106 forces hours receiving complaint pre- failure timeframe provokes €20 million.107 implementation day politician für deutschland afd right-wing anti-immigration tweeted “barbaric muslim group-raping hordes men” german streets nepa, deleting tweet suspending his account.109 later satire titanic, humorously “group-raping satirize original incident criticism debate expression110 balance germany. face pioneered discourses europe strictly enforcing already-existing sphere. germany’s introduced unlawful radicalization commercial million moderators changing ict companies’ behaviour. ibid adequate reject altogether. self-regulation versus major controlling flow creating deliberated decided given enormous tone happen appropriate.111 grown assume generalized industries.”112 few “aside form outcry.”113 companies' “incentives public's welfare misaligned self-regulating,” re-align incentives.114 defined,115 group best balanced concept “information fiduciaries” akin (doctors, obligations clients “democratic culture” seeks meaningfully subsequent writers highlighted “we recommending tightens liabilities necessarily 'publisher responsibility generator host advertise hide claim 'platform repeat formulated harmful posted users. build “scaffolding.”116 conclusion “politically-aligned bias purports news”117 unlikely empower reading, “[w]e widely-accepted age.”118 establish specialized, space,119 adapt “new confront twenty-first “reason hope story twentieth twenty-first.”120 combine aspects privacy, commissions bibliography secondary monographs halpin volker roeben eds theorising order london hart publishing, kittichaisaree kriangsak cyberspace switzerland springer publishing kulesza joanna translated magdalena arent wojciech woloszyk (new york routledge linarelli margot salomon muthucumaraswamy sornarajah misery confrontations injustice economy oxford university press peters anne beyond (cambridge smith rhona 8th press, svantesson dan jerker borje 2nd netherlands kluwer articles /lawreview.law.ucdavis.edu/issues/51/3/essays/51-3_balkin.pdf. /papers.ssrn.com/sol3/papers.cfm?abstract_id=470842. bell emily taylor owen silicon valley reengineered journalism” (march tow center /towcenter.org/research/the- platform-press-how-silicon-valley-reengineered-journalism bradshaw samantha lisa-maria neudert phil responses malicious computational project comprop.oii.ox.ac.uk. “stand responsible tech” /www.law-democracy.org/live/stand-up-for-digital-rights-unveiling- recommendations-for-responsible-tech voters,” /www.electoralcommission.org.uk/find-information-by-subject/political-parties-campaigning- and-donations/digital-campaigning. institute “ict sector guiding rights” ec.europa.eu/anti- trafficking/sites/antitrafficking/files/information_and_communication_technology_0.pdf. /www.electoral-reform.org.uk/latest-news-and- research/publications/reining-in-the-political-wild-west-campaign-rules-for-the-21st-century falguera elin “funding handbook assistance” www.idea.int/sites/default/files/publications/funding-of-political-parties-and-election- campaigns.pdf. (november /papers.ssrn.com/sol3/papers.cfm?abstract_id=3064451. campaigns: /ico.org.uk/media/action-weve- taken/2260271/investigation-into-the-use-of-data-analytics-in-political-campaigns-final-20181105.pdf. disrupted influence” /ico.org.uk/media/2259369/democracy-disrupted-110718.pdf. unesco “fostering /unesdoc.unesco.org/ark 48223/pf0000231162. levi lili /papers.ssrn.com/sol3/papers.cfm?abstract_id=3097200. /www.ourcommons.ca/content/committee/421/ethi/reports/rp10242267/ethirp17/ethirp17- e.pdf. /www.yalelawjournal.org/forum/real-talk-about-fake-news. tambini damien “media brief campaigning” marc lse /eprints.lse.ac.uk/71945 inc.com /www.inc.com/tess-townsend/facebook-fake-news-political- ads.html. intermediaries” unesdoc.unesco.org/images/0023/002311/231162e.pdf. select /publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/179102.htm. /papers.ssrn.com/sol3/papers.cfm?abstract_id=3137311. tim obsolete?” september knight institute. /knightcolumbia.org/sites/default/files/content/emerging%20threats%20tim %20wu%20is%20the%20first%20amendment%20obsolete.pdf. zittrain jonathan “response engineering gerrymandering poses democracy” harvard /harvardlawreview.org/2014/06/engineering-an-election could without anyone finding out” republic /newrepublic.com/article/117878/information-fiduciary-solution- facebook-digital-gerrymandering.

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