The Influencer Republic: Monetizing Political Speech on Social Media

Abstract

Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters (e.g. ECHR). Unlike commercial speech which, in some cases, does not enjoy constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech (e.g. regulation) would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.