“¿Qué es un ‘bot’?” Fair Elections in California
I can hear my suegros now, if they were alive, asking, “¿Qué es un ‘bot’?” if they were subjected to the frequent stories on the nightly news about Russian meddling in our national elections. Who knew even a few years ago that politicians, and, more importantly, voters, would have to worry about nameless, faceless provocateurs writing and disseminating lies and fake news through social media to influence elections, maybe even from distant lands?
While this development is occupying a lot of time on the national news and falls under the purview of the FEC – the Federal Election Commission – it raises important questions in the local context, as well. Questions like, “Are there any rules applicable to the use of social media for campaigning in California?” And, “What are the ethical implications of social media campaign activities?”
Although traditional forms of media, such as radio, television, mass mailings, fliers, and newspapers are regulated for communications by candidate committees for their own election, electronic media is not regulated in regards to the physical advertisement itself. While traditional forms of media must contain a disclosure such as “Paid for by Juan Gonzalez,” there is no such requirement for electronic media. Disclosure is merely recommended but not legally required for communications via electronic media, which includes websites, blogs, Twitter feeds, and other social media pages such as Facebook.
What is required at times is disclosure of payments made by a candidate or candidate’s committee to persons providing positive or negative social media content about a candidate or ballot measure on an Internet website other than the candidate’s or committee’s own Internet website. The disclosures have to be made on California Form 460 “Recipient Committee Campaign Statement.” If a person was not paid for the content then there is no disclosure requirement. If a person was paid for producing content solely to be published on the candidate’s website and other social media (as opposed to some unrelated third party’s) there is no disclosure requirement. The applicable Fair Political Practices Commission regulations are here.
Here are two examples to illustrate this disclosure requirement. First is an example where disclosure is needed. Camila is running for local office and she pays Julia to post a message on Julia’s blog supporting Camila’s candidacy. Camila’s committee must report the payment as an expenditure on California Form 460. The second example is one where no disclosure is needed. Juan is running for State Assembly and his neighbor Gonzalo posts his support for Juan’s candidacy on Facebook. In his Facebook post, Gonzalo includes a picture of Juan that he got from Juan’s campaign website. The communication is not reportable because Gonzalo was not paid by Juan for his Facebook post.
When reporting the payment expenditures, whether the payment is made directly or through a third party, campaign committees must include specific information of the amount of the payment, the payee, the name of the individual providing content, and the name of the website or URL on which the communication is first published.
One thing to always keep in mind when creating, or paying others to create, political advertisements is to stay away from absolute lies or things that you think is probably a lie because you can open up yourself to being sued for defamation, not to mention accused of usando bots. Sticking to the truth is not only ethical but also safer legally.
Ruben Duran serves as general and special counsel to public agencies throughout Southern California, including cities, special districts, school districts and special-purpose entities in health care, job training and development and air quality management. He is a member of the Cannabis Working Group at Best Best & Krieger, which advises the firm’s clients on all aspects of marijuana laws and regulations.