Issue 3: Innovations and Institutional Reforms for Courts to Consider
As the cases in this paper illustrate, judges must be prepared to tackle attacks on the integrity of information both in election petitions and as part of wider campaigns against the courts and individual judges before, during, and after elections. In the new information environment, judges may need to reconsider traditional legal ideals of not engaging publicly in political debates for fear of demonstrating bias or conflicts of interest. Speaking through case law – with which the majority of the public is unlikely to engage – may be insufficient in many jurisdictions. Rather, reforms to court administration and support for outreach activities to the media, civil society, and the public likely will become increasingly required.
Losing parties may feel aggrieved after losing important cases and lash out, seeking to discredit the courts. In recent years, this problem has evolved as foreign actors amplify domestic voices. In the United States, the NCSC identified four new, specific themes related to disinformation and elections that foreign actors often use when seeking to discredit a judicial system:
- The justice system ignores voting irregularities and fraud, allowing elections to be stolen from certain candidates.
- The justice system tips the electoral map in favor of a particular party.
- The justice system is unaccountable. Therefore, judges should be subject to threats of violence to keep them in line.
- Decisions by the court are political and can be leaked for political purposes.
As the case law has shown, many of these themes are echoed in jurisdictions other than the United States – for instance, in the recent Kenya elections. While the nature of these threats evolves constantly, we can draw from the selected cases and discussion the following emerging lessons learned on institutional reforms that can support the courts in countering disinformation campaigns against them.
A. Foster Preventive Measures Ahead of the Elections
Given that widespread disinformation campaigns during elections can severely undermine public trust in the judiciary, maximum planning and transparency is vital to enable judges and EMBs to respond quickly to such threats. This requires the courts to adopt a communication strategy during elections to counter attacks against judges and to conduct training on communication in crisis and any useful digital tools at the judiciary’s disposal to combat disinformation. It also requires EMBs to communicate as much information as possible to all stakeholders before an election. Sometimes this might be as simple as inviting cameras into the courtroom to ensure the hearing process is livestreamed with decisions summarized for the media, as judges did in Kenya during the 2017 and 2022 elections or in Nigeria during the 2023 elections, when the judges gave an 11-hour livestreamed reading of their judgment.
Increasingly, more strategic reforms may be required. In Arizona in 2019, the Supreme Court of Arizona established the Task Force on Countering Disinformation by Administrative Order No. 2019-114 to study and make recommendations related to disinformation and misleading campaigns targeting the U.S. and Arizona justice systems. Key recommendations on communications included:
- That every court establish and maintain a court-specific website or web page to provide accurate information and access to justice 24 hours a day, seven days a week, through local or statewide resources.
- That every court establish and maintain at least one social media account, such as Facebook, Twitter (now known as X), Instagram, or YouTube, to keep the public and media informed about court events and notify the community quickly and efficiently in emergencies, and to serve as a tool to counteract disinformation promptly, provide accurate information, and help the public better understand court policies and procedures.
- Incorporating information from the resources in [the Task Force] report into an online and print mini-guide for judiciaries to use to recognize misinformation and disinformation directed at the judiciary.
Ahead of the February 2022 presidential elections in Costa Rica, the Supreme Electoral Court – acting both as an EMB and an adjudication body – made an agreement with Facebook to establish a direct channel of communication to enable election magistrates to download content and request that posts containing disinformation be removed. Social networks were monitored; based on a series of indicators that had been jointly built, content could be downloaded, preserved as evidence, and removed in real time. Quick access to evidence relating to content which can affect the integrity of the election and violate rules of electoral propaganda is crucial to allow arbiters and judges to rule in a timely manner.
Similarly, in preparation for the 2022 elections, Brazil’s Tribunal Superior Eleitoral (TSE) (Superior Electoral Court) established the Electoral Justice Permanent Program on Countering Disinformation, which developed a strong disinformation strategy ahead of the country’s 2022 elections. The initiative revolved around three axes that contain a significant number of innovative initiatives. These include training for internal and external audiences on disinformation, enhancing cooperation with the media, partnering with Federal Police and federal prosecutors, encouraging dialogue with political parties, and supporting the mental health of TSE members who deal with disinformation. The initiative seems to have been a success, given that the elections were contentious but the courts could push back robustly and sanction former President Bolsonaro in the face of a significant disinformation and intimidation campaign.
B. Break Judicial Isolation: Share Lessons Learned and Build Communities of Practice
One method for judiciaries to quickly improve strategic planning is to share good practices and lessons learned among themselves. This can often be difficult. In 2019, the European Commission for the Efficiency of Justice noted that:
“The judicial culture is traditionally marked by a certain isolation of the judge, who is responsible for the decision because of the independence and impartiality of the judiciary. This isolation now appears harmful in that, taken to extremes, it leads to a fixed or even outdated justice, distinct from the world around it. To combat this isolation and ensure the quality of justice dispensed, it seems essential to set up practical tools for sharing and disseminating knowledge in order to encourage and nourish judges in their reflection.”
As the emerging case law and discussion in this paper demonstrates, perhaps nowhere is such collaboration more necessary than in issues of disinformation and elections. Several nascent bodies exist in this area. The Global Network on Electoral Justice, founded in 2017, provides a global platform for sharing information among judges, legal experts, and practitioners. During the 2022 elections in Brazil, members of the network traveled to Brasilia to observe the process, offer support, and share good practices on deterring and addressing violations. Recently, several regional bodies in Europe, Africa, and the Pacific region have been established to share good practices. In a seminar in May 2023, the Africa Electoral Justice Network discussed the challenges and impact of disinformation on elections. The network brought together EMBs, election judges, and civil society organizations to discuss these threats and how to remedy them, notably through utmost transparency in the election dispute resolution process. More recently, the Global Network on Electoral Justice, together with the French Constitutional Council, gathered election judges and commissioners from all regions to discuss regulations on social media and recent jurisprudence, sharing the criteria judges use when assessing manipulative and harmful content during elections. These are positive trends that will ultimately build more resilient judiciaries. Knowledge exchange throughout electoral cycles will be critical to ensuring strong and robust institutions and avoiding the pitfall of preparing for these issues only a few months before elections take place.
National Center for State Courts. (2022, September 22). Today’s Disinformation Threats [webinar][select from dropdown menu]. The National Center for State Courts is an independent, non-profit organization that promotes the rule of law and improves the administration of justice in state courts and courts around the world. It is based in Williamsburg, Va., with its International Division in Arlington, Va.
It is of interest to note that, in the guidance, the BSB recognizes that there is a balance between Article 10 of ECHR and “other rights and values protected by the ECHR (such as the rights and reputations of other members of the profession or consumers of barristers’ services).” Id. at p. 2.
Id. at p. 5.
Consortium for Elections and Political Process Strengthening. (2021). Countering Disinformation Guide
Supreme Court of the State of Arizona. (2019). In the Matter of Establishment of the Task Force on Countering Disinformation. Administrative Order No. 2019-114
Freedom House. (2022, December 23). Amid rising digital repression, Costa Rica serves as a model in Central America.
The three axes focused on 1) Inform: Dissemination of Quality information; 2) Enable: Media Literacy and Training; and 3) Respond: Identification and Containment of Disinformation. See Brazil’s Electoral Justice Permanent Program on Countering Disinformation - Strategic Plan - Elections 2022
Tribunal Superior Eleitoral. (2022). Brazil’s Electoral Justice Permanent Program on Countering Disinformation: Strategic Plan Elections 2022
European Commission for the Efficiency of Justice. (2019). Guidelines to improve the judge’s skills and competences, strengthen knowledge sharing and collaboration, and move beyond a culture of judicial isolation.