Preserving the democratic process without censorship:
By Chantal Joris, Legal Officer, ARTICLE 19
The year of 2024 will be a big election year. Billions of citizens will go to the polls in more than 50 countries, including in some of the world’s largest countries and territories, like India, Indonesia, the European Union and the United States. There are serious and significant concerns regarding how information manipulation, whether originating domestically or from foreign sources, as well as censorship, can undermine the integrity of the democratic process — and with it the fundamental right to free and fair elections as articulated by Article 25 of the International Covenant on Civil and Political Rights (ICCPR). While social media platforms should do their part to curb information manipulation and increase transparency to safeguard election integrity, recent elections, such as those held recently in Slovakia, show that they still have a long way to go.
Responses to information manipulation cannot be worse than the problem itself
Many governments and policymakers around the world grapple with the complexities of the subject as they seek regulatory and policy solutions to what is a real and legitimate concern for electoral integrity and the protection of the information space. However, the cure cannot be worse than the disease. The proposed responses frequently lack a solid foundation in international human rights law and could particularly threaten the right to freedom of expression and information protected by Article 19 of the ICCPR.
Indeed, numerous initiatives, both regulatory and non-regulatory, are emerging that aim at addressing information manipulation or information integrity. Many of these initiatives raise concerns from a free speech perspective. One of the significant challenges is that neither State actors nor private entities, such as social media platforms, can be entrusted with power to arbitrate the accuracy or intentions behind expression. The risk of abuse is too evident. To add to the complexity, it is often governments themselves who are the primary sources of information manipulation at the domestic level, particularly during critical junctures like elections or referendums. Paradoxically, these very governments are the key stakeholders in negotiating solutions to the very risks they often create or exacerbate themselves.
The EU’s political advertising proposal illustrates the issue
An example of a well-intentioned yet concerning approach is the proposed EU Regulation on the transparency and targeting of political advertising (the Proposal) which intends to introduce new rules for political campaigning and to tackle foreign interference and disinformation ahead of the 2024 European Parliament elections. In essence, the Proposal establishes transparency obligations for paid political messaging, both offline and online, to disclose the political nature of advertisements, the identity of their sponsors or the source of funds used for the advertisement. The Proposal also seeks to introduce targeting and amplification restrictions for political advertisement. The scope of the Proposal does not cover other aspects of campaign financing as the EU has limited competence when it comes to national democratic processes.
It is undisputed that we need more transparency in political campaigning and that the misuse of algorithmic targeting in political advertising can present important risks, not only to the election processes but also to people’s fundamental rights, notably freedom of expression, the right to make political decisions, and voting rights. So where does the issue lie?
After months of negotiations, a political agreement on the Proposal was reached in November with the final text yet to be published. The extensive scope under consideration during the negotiations is already a cause for concern. In an effort to eliminate any potential loopholes and catch all forms of potential undue influence, the Proposal covered not only advertising directly linked to a specific campaign but all messages that involve political speech or matters of public interest, including unpaid ones, as long as they have the potential to influence voting behaviour.
This would have granted public authorities a powerful tool to scrutinise all forms of political expression, whether paid or unpaid. Under the pretext of ensuring compliance, authorities could have imposed sanctions on advertising publishers and request the swift removal of political speech from online platforms, including shortly before elections, claiming non-compliance with the regulation. This is why many human rights organisations have warned that the Proposal could threaten political speech, which under international human rights law requires the highest standards of protection, and undermine civic space in Europe.
It has been reported that the worst has been averted and that the agreed text now only includes paid messages in its scope. This would of course make it significantly more reasonable and proportionate. However, some risk to EU-based civil society organisations remains. Going forward, they will likely need to assess each advertisement to determine if it could potentially influence voting behaviour and whether they must comply with the regulation. In addition, as ARTICLE 19 warned, public authorities might use the regulation as a tool to exert undue pressure on opposition parties or civil society organisations given the difficulty of proving that an advertisement is not liable to influence voting behaviour.
Election integrity does not need to compromise freedom of expression
The key question remains: how can we secure the right to free and fair elections and a resilient information space in the face of threats like troll farms, bots, impersonation of media outlets, deep fakes, and the malicious use of artificial intelligence, in a manner that does not result in excessive censorship?
While it is occasionally framed in such a manner, there is no need to pit election integrity and the people’s right to free and fair elections against freedom of expression. Instead, there needs to be an increased recognition among policymakers of how important it is for the integrity of elections that freedom of expression is not subjected to undue interference. The three-part test outlined in Article 19 of the ICCPR continues to offer the best framework for adopting necessary, effective, and accountable measures. It protects freedom of expression by allowing for the reconciliation of interests and fundamental rights which are not in conflict but rather complementary.
Yet, the question of how to respond to threats to information integrity is far from straight-forward and it appears that all stakeholders in the discussion, including the freedom of expression community, have yet to come up with meaningful and effective proposals to a problem that is highly complex and which has many nuances. But ultimately, it is clear that any solutions must be rooted in international human rights law and particularly the right to freedom of expression and information. Approaches departing from these fundamental principles and which resort to solutions based on censorship and increased control over online and offline speech run the risk of worsening the issue rather than contributing to its resolution.
Chantal Joris is a Legal Officer at ARTICLE 19, an international human rights organization which works around the world to protect and promote the right to freedom of expression and information. Chantal’s work focuses on platforms regulation (content aspects), freedom of expression in armed conflicts and freedom of expression issues relating to national security and privacy.
This article is part of our Finding the ‘Rights’ Balance blog series which was kickstarted by our Research Director, Renato Berrino Malaccorto. Part One discusses how access to public information and open data complement each other, while Part Two presents 7 ideas that harmonise debates surrounding open data and privacy.