Responsive Democratic Regulation: A Framework for Regulating Digital Politics and Campaigning

Governments and policymakers have struggled with the practical consequences of outdated legal regimes and the regulatory challenges posed by new forms of political participation and communication. While the nature of political participation, organisation and advocacy has changed profoundly, the laws that regulate these political activities have not. This has exposed significant policy challenges. For example, the spread of ‘fake news’ and misinformation in political campaigning brings into question the law’s ability to provide for transparency and truth in political advertising in a fragmented media landscape. Social media companies, such as Facebook, have stepped in to regulate content and Twitter has banned political advertising entirely. These examples illustrate the pressing need for the law to keep pace with how politics is practiced today. This paper will develop a new, empirically grounded, approach to analysing the relationship between politics, law and the values that underpin modern understandings of democracy. This approach, termed ‘responsive democratic regulation’, has three core pillars: regulation should be based on shared democratic values, it should be attuned to different ways of doing politics, and it should incorporate a diversity of regulatory actors. This model of responsive democratic regulation finds inspiration from earlier research on regulatory governance (see, e.g., Ayres and Braithwaite 1992), but is fundamentally reimagined for analysing the practice of democratic digital politics today. To develop this framework, the paper will analyse and synthesise three perspectives. 1. The legal and democratic principles that have traditionally underpinned regulation in liberal democracies, sourced from constitutions, legislation, international instruments and judicial decisions. 2. The views of advocacy organisations and political participants, which will be captured by analysing extensive documentary material from groups such as Ranking Digital Rights, Access Now and Digital Rights Watch. 3. The views of citizens, which will be sourced from existing comparative surveys of digital rights. The principles identified, and the normative framework created, will create a tool to evaluate the responsiveness of regulatory regimes, which can be used for comparison across democracies and can be applied to the governance activities of social media companies.