Issue Area 1: Balancing Free Speech with Appropriate Restrictions at the National Level

Despite the development of international human rights principles, States struggle to balance the right to freedom of expression with restrictions in accordance with legitimate interests that are recognized under international law. States have long used discrete laws dealing with defamation, elections, consumer protection, and financial fraud to address the harm done by false information. Even in exceptionally charged political environments, courts have been able to rely on these frameworks to adjudicate election disputes. 

The United States, for example, historically has employed a very broad interpretation of free speech. The First Amendment to the U.S. Constitution states unequivocally that “Congress shall make no law …  abridging freedom of speech,” a right that has grown to encompass many forms of citizen speech. However, defamatory statements, which are defined as “false statements of fact about a person,” incitement, fraud, obscenity, child pornography, fighting words, and threats are not protected speech under the First Amendment.  In defamation cases, the party alleging defamation must “demonstrate that the speaker acted with a certain level of intent … or to prove certain injuries.” Certain federal laws regarding elections also prohibit false statements about voter eligibility and “fraudulent misrepresentation of authority to act for a federal political candidate.” 

Dominion Voting Systems, Inc. v. Fox News Network, Fox Corporation illustrates how U.S. courts have grappled with issues of free speech and defamation in the context of elections. Prior to the 2020 U.S. presidential election, analysts, including New York-based Fox News, predicted that early vote counting would favor the incumbent, Donald Trump, and that later counting would favor his opponent, Joseph Biden. This was indeed how the election proceeded, with Biden eventually securing the presidency. Infuriated by Fox News’ projections and a potential loss of the presidency, Trump and his supporters adopted a narrative that widespread fraud had tainted the election. As Fox News’ viewership dropped, the network suddenly began to amplify Trump’s false narrative, presumably in hopes of boosting its ratings.  Shortly after the election, Fox News began stating publicly that Dominion Voting Systems, Inc., a private supplier of election and voting technology that operated many of the voting machines used during the election, had used those machines to “rig” the election in favor of Biden.

Dominion, in turn, alleged that Fox News’ statements were false and defamatory and sought punitive and economic damages. Fox News asserted various defenses, chief among them that the network’s reporting of newsworthy events was protected under the First Amendment, statements were not published with actual malice (i.e., intended to cause harm, which Fox stated that Dominion did not show with “clear and convincing evidence”), and Dominion did not suffer any damages. In fact, Fox News argued specifically that a reasonable viewer would understand the network was simply “fulfilling its journalistic duty to present newsworthy allegations made by others.”  The network also asserted that New York case law had established that, when the press repeated allegations later found to be false, a reasonable viewer would understand the allegations as “claims” rather than “facts.” 

In rejecting these lines of defense from Fox News, the Superior Court of Delaware  found that the statements were defamatory per se  because the network claimed that Dominion committed election fraud, among other key issues, and that “[n]o First Amendment protection enfolds false charges of criminal behavior.” Relying on longstanding jurisprudence around defamation in the State of New York, the Court was able to resolve this significant case. Its finding of defamatory statements per se and no defenses of freedom of speech led Dominion and Fox News to settle the case out of court for over USD $750 million.
 

A prescriptive legal framework directed at controlling the flow of information can often generate more challenges before a court. In some African jurisdictions (such as Uganda, Zambia, and Zimbabwe), laws dating to European colonization criminalized the spread of loosely defined “false information” on issues of public interest and have been found to be both unconstitutional and unjustified in modern democratic societies.  In the last decade, the number of laws prohibiting “false news” has also risen, most notably in Asia and across the Pacific. Though many of these laws remain in effect, they ultimately fail the “necessity and legitimacy” tests set out under the ICCPR.
 
Countries navigate the problem of disinformation in various ways. In Brazil, the Brazilian Criminal Code contains three provisions dealing with an attack on a person’s “honor,”  but no current law specifically addresses disinformation. As of the writing of this paper, however, Brazilian Congressional Bill No. 2630, the Law on Freedom, Responsibility and Transparency on the Internet, is pending before Congress, already having been approved by the Senate.  Although Nepal does not have a specific law addressing information integrity, the Libel and Slander Act, 2016, grants people the right “generally to maintain their prestige, honor and dignity;”  the Electronic Transactions Act, 2063 (2008) prohibits the publication of material in electronic form “which may be contrary to the public morality or decent behavior or any types of materials which may spread hate or jealousy against anyone or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes and communities;”  and the Election Commission Nepal (ECN) Code of Conduct prohibits the transmission of “disinformation, misinformation and hate speech in social networks.”  In Kenya, several articles of the Kenyan Constitution address freedom of expression and its limitations, and certain sections of the Computer Misuse and Cybercrimes Act make the publication of false information a crime.  In Nigeria, a section of the Criminal Code addresses the publication of false news, including in instances when the person disseminating the news does not know it is false.  Furthermore, Nigeria’s proposed Hate Speech Bill (which, after sustained public backlash, did not pass) would have criminalized any actions a person took to stir up ethnic hatred, engage in ethnic harassment, or discriminate.  Such broad language would have granted the government arbitrary power to clamp down on free speech, including “critical opinion, satire, public dialogue, and political commentary” – a serious problem, especially during election periods.  

Supreme/apex courts often must determine whether newly introduced legislation regarding information around elections aligns with constitutional provisions by following their jurisdiction’s appropriate test for limiting free speech. Recently, supreme and constitutional courts globally have struck down a variety of “false information” laws, arguing that the provisions of those laws did not meet the tests of necessity and legitimate aim to restrict freedom of speech and freedom of the press during elections. In South Korea, the Constitutional Court was called on to rule on the constitutionality of a legal provision that prohibited candidates from publishing a column, comment, contribution, or writing on online media within 90 days of an election. In this case, 2016Hun-Ma90 (Case on Restricting Online Media from Publishing Columns, etc. Written by Candidates for Public Official Election), the Court acknowledged that, while the restriction was intended to avoid unfairness in online election news reporting and the circumvention of campaign rules, it was overly broad because it prohibited the online publication of information that might not necessarily be political speech or otherwise tied to an election campaign. The Court found that the provision placed an unconstitutional restriction on the complainant’s freedom of speech. 

During Nepal’s 2022 elections, voters created an online campaign expressing disenchantment with mainstream politics and career politicians. A member of one political party filed a complaint against the campaign, causing the ECN to warn the campaigners to cease campaigning or face fines, imprisonment, or both. The ECN relied on a broad provision of its Election Code of Conduct (“false or incorrect statement”) and referred the case to the Cyber Bureau, requesting that the police take down the campaign’s web pages. Responding to this warning, Senior Advocate Dinesh Tripathi filed a writ petition at the Supreme Court of Nepal, Senior Advocate Dinesh Tripathi v. Election Commission of Nepal (#NoNotAgain Campaign), arguing that the warning to cease campaigning violated the campaigners’ rights. The Supreme Court ordered the ECN and Cyber Bureau not to take any actions against the campaigners, stating that the campaign was an example of freedom of thought and expression. On November 6, 2022, the Supreme Court issued an interlocutory interim order against the decision of the ECN to refer the case to the Cyber Bureau until the final decision. Despite a lack of time to adjudicate this case on the merits, the Supreme Court’s quick actions nevertheless ensured that free speech would not be undermined during the election campaign.

In France, the Constitutional Council reviewed French Law No. 2018-1202 on the “fight against the manipulation of information” prior to its adoption in 2018.  Unlike many supreme/apex courts that previously struck down provisions of the law, the Council dismissed the allegations that certain provisions of the law were in breach of freedom of expression. The Council acknowledged the legislature's responsibility “to bring an end to the abuse of the right to exercise freedom of expression and communication which infringe on public order and the rights of others” and found that the wording of the law was necessary, suitable, and proportional to the legislature’s aim of fighting manipulated information. Indeed, an interlocutory proceeding under this law has a limited scope, wherein only "incorrect or misleading allegations or accusations which have the effect of altering the honesty of the upcoming elections” fall within its purview. The law excludes opinions, parodies, partial inaccuracies, or simple exaggerations and only allows for three cumulative conditions for spreading such allegations or accusations: “they must be artificial or computerized, deliberate and spread by mass distribution.”
However, the Council also found that, “given the consequences that proceedings may have the effect of stopping the spread of certain information content, the allegations or accusations in question can only justify such a measure if the incorrect or misleading nature is apparent, without infringing on the freedom of expression and communication. Likewise, for the risk of having an effect on the sincerity of elections, which must also be apparent.”  In light of the legislation’s limited scope and its strict definition of what constitutes manipulated information, the Council upheld the law as constitutional. 

In Switzerland, the legal framework does not provide for strict regulations relating to disinformation, but general principles and a strong body of jurisprudence guide election judges in their application of the laws.  For instance, the judges of the Federal Supreme Court have adopted a narrow interpretation of disinformation and determined that a court’s duty to intervene in disinformation cases can only happen when the influence of private actors seriously hinders or prevents the voters’ process of forming an opinion (see text box). Such conduct can lead to the annulment of a vote.  Case law led to the use of the following test, relying on four criteria: “1) Erroneous information must first be based on facts (objective). 2) The facts must then relate to an important circumstance of such a nature as to seriously mislead the elector. 3) The disclosure of erroneous facts must take place at a late stage of the campaign, at a time when rectification would no longer have any effect on the voter. 4) Finally, the judge must satisfy himself that the misleading influence exerted on the electorate is without doubt or at least appears highly probable.”  These four criteria echo the strict criteria adopted in the French law on manipulation of information and the rulings of other countries preventing unreasonable restrictions of freedom of expression.