Electoral fake news, states are obliged to intervene

Doors open to complaints against states that do not take effective measures to combat disinformation during election trials. With its 22 July judgment in Bradshaw and others v. United Kingdom (No. 15653/22), for the first time, the European Court of Human Rights addressed the measures that states are required to take to fight disinformation and not undermine the right of individuals tofree elections. The Court, while leaving room for States to have a wide margin of discretion to calibrate their interventions in the field of elections, ruled that national authorities cannot remain passive when they become aware of threats to free elections because disinformation jeopardises democratic integrity and the essence of the right of every individual, guaranteed by Article 3 of Protocol No. 1 to the European Convention, to benefit from elections that ensure the free expression of the will of the people.

In theUnited Kingdom, one of the countries most targeted byRussian actions, a House report on disinformation and fake news had been published. The Prime Minister had initially decided not to initiate any investigation, but after some actions by three MPs, some investigations were ordered. The matter then reached the European Court, which had the opportunity to adopt the first ruling on Russia's disinformation operations. Strasbourg clarified that according to Article 3 of Protocol 1, which guarantees the right to free elections, States have an obligation to take positive measures to ensure that voters can freely cast their vote and also obtain correct information during the election campaign. Despite the fact that Article 3 of the Protocol does not include an obligation for States to conduct investigations into alleged violations of the norm, if a State incurs a flagrant failure to investigate interference in its elections, it prevents the effective enjoyment of the individual right to free elections and thus violates the norm.

Having said that, however, the Court sets limits to judicial action by stating that to be recognised as a victim it is not enough to be potentially eligible, but it is necessary to establish that the interference reaches a certain intensity and that the State remains inactive. This is because the line between combating disinformation and censorship is very thin and there is no clear consensus among states on what action to take in this area. The Court, however, assessed the measures taken by the UK authorities in countering disinformation attempts aimed at polluting the national debate and found that the UK had not violated Article 3.

But the Court nevertheless paved the way for new appeals against disinformation by recognising that the Convention obliges states, albeit with a wide margin of appreciation, to take action.