Election Case Law Analysis Series: Lessons on Disinformation and Election Disputes
With support from the United States Agency for International Development (USAID), in 2021, the International Foundation for Electoral Systems (IFES) launched ElectionJudgments.org, a database for national election judgments from around the world. IFES has used this database to conduct an initial analysis of select judgments that involve bad actors propagating disinformation during and after elections. These cases show that the rise in disinformation campaigns around the world affect not only election processes, but also have expanded to threaten judges and the judiciary as an institution. Disinformation campaigns originate domestically and from foreign countries, targeting election management bodies (EMBs) and judiciaries in attempts to delegitimize their powers to announce and certify or rule on results. By attacking judges credibility, these disinformation threats may undermine citizen trust in judgments and lead to chaos.
This paper analyzes several cases from countries where disinformation campaigns have been litigated as part of the electoral dispute resolution process. Drawing on case law from Africa, Asia, Europe, Latin America, and the United States, we present an initial analysis of how courts are grappling with the disinformation issue. Key findings include the following:
Defining and consistently addressing what constitutes disinformation has proved difficult for policymakers globally. With no internationally agreed-upon legal definition, democracies across the world are confronted with the difficult problem of how to minimize harms caused by what might potentially be considered disinformation attacks while respecting citizens rights of freedom of expression. At no time is this balance more important than during the pre-election period and election campaigns, when the right to criticize government and engage in robust policy debate is a core feature of the democratic process. When supported and driven by malign foreign and domestic actors, however, disinformation campaigns carry the very real possibility of undermining trust in democratic institutions, causing conflict and ultimately strengthening authoritarian rule in countries across the world.
In general, courts are proving adept at balancing human rights concerns in this area in their reviews of new laws that regulate speech and in their adjudication of election disputes. This is partly because the quality of cases brought before courts to date has been so low. Often, limited evidence is presented to a court to support the allegations disseminated through disinformation campaigns, or the claims are so egregious that they are clearly defamatory or otherwise addressed by legislation that deals with elections and rules of evidence. Where courts have been asked to rule on disinformation cases, many can rely on existing rules of procedure and national jurisprudence, adopting strict interpretations of the existing laws to avoid unreasonable restrictions on free speech. What is concerning in the cases, however, is the extent to which EMBs, judges, and the judiciary are caught up in and becoming the center of disinformation campaigns that play out before, during, and after cases are filed in courts. The direct threat to many judges who work on these issues is very real. In some jurisdictions, courts push back robustly against these threats. They have increasingly turned to fines and other sanctions against both lawyers and political actors who have been part of these campaigns and attacked the courts directly.
Responding in a timely and effective manner is critical to countering campaigns that seek to sow disinformation about the electoral process or the judiciary. This can include adjudicating cases as soon as possible after an election, dealing summarily with issues of disinformation in the run-up to Election Day, or engaging in dialogue with social media platforms to ensure quick access to evidence or enforcement of the removal of harmful content. Where courts can respond quickly, the oxygen fueling a disinformation campaign often can be removed, leaving those advancing campaigns with nothing to show for their efforts. In particularly tense political environments, these judgments must be visible and communicated widely through the media to civil society, citizens and, of course, the political actors themselves.
Despite some positive lessons, however, disinformation will not go away, and judiciaries need to work faster and more collaboratively to share good practices about how they can adapt their processes quickly and nimbly to counter such disinformation. Drawing from a series of strategic and innovative practices around elections, opportunities exist to deepen the dissemination of lessons at the global and regional levels via networks of judges that meet to share good practices, along with other actors, including other independent oversight institutions and civil society organizations.
Democratic backsliding around the world continues to accelerate, fueled in large part by disinformation campaigns. The judiciary can act as a bastion for democracy in those moments, slicing through disinformation campaigns and upholding the rule of law in times of crisis. This is the very essence of democracy and people-centered justice ensuring that votes cast at the ballot box truly express the will of the people and how they choose to be governed.
Table of Contents
This paper’s analysis of select jurisprudence reveals the need for election judges to have the resources and opportunities to familiarize themselves with evolving threats – whether foreign or domestic – to uphold electoral integrity and build resilient judicial institutions in advance of elections.5 It presents an analysis of disinformation cases from IFES’ database, ElectionJudgments.org, and discusses emerging challenges for judges in adjudicating these cases and the application of timely and effective remedies.
Defining disinformation in the scope of this paper.
- International Human Rights: Freedom of Expression and Opinion
- Timely, Effective, and Proportional Remedies
A. New Issues, Old Laws
B. National Legal Frameworks
A. Rapid or Summary Judgments Can Be Very Effective
B. Courts Pushing Back – Imposing Significant Sanctions
C. Deterring Frivolous Cases
A. Foster Preventive Measures Ahead of the Elections
B. Break Judicial Isolation: Share Lessons Learned and Build Communities of Practice
Five recommendations for judiciaries and Election Management Bodies (EMBs)