Adversarial elections prompt analysis of role of law in the democratic process

Chris CroweMonday 30 November 2020

In 1800, incumbent United States President John Adams faced-off against challenger Thomas Jefferson in one of the most fiery and antagonistic presidential elections in American history. It led to a genuine constitutional crisis thanks to a quirk in the voting methodology.

The story might sound familiar in 2020. This year, the presidential election has been called in favour of challenger Joe Biden but as of the time of writing incumbent Donald Trump has yet to concede, instead alleging electoral fraud without providing evidence and launching a variety of legal proceedings.

In 2020, the US is considerably larger – there were just 16 states in 1800 – and political candidates must navigate a murky world of misinformation and ‘fake news’ that is spread more readily through social media platforms.

Whether political arguments are convincing or a campaign is persuasive is ultimately for the electorate to decide. It is not for judges or other official institutions to pre-judge that

Jacob Rowbottom
Associate Professor of Law in the Faculty of Law, University of Oxford

Their forebears Adams and Jefferson could never have envisaged a future President communicating directly and instantaneously with millions of US citizens, nor did they need to be concerned about allegations of social media-initiated electoral interference from outside the US.

Accusations of vote rigging are not the sole preserve of the US, with civil protests and legal proceedings frequently launched worldwide to resolve contested elections. Belarus has experienced widespread political demonstrations in the wake of the re-election in August of Alexander Lukashenko as President.

In Tanzania, opposition parties alleged that a presidential election was fraudulent after serving President John Magufuli gained some 84 per cent of the October vote.

The law and legal proceedings have featured strongly in resolving contested elections. In the US, various courts have during November rejected the Trump administration’s allegations of vote rigging. In 2017, the Supreme Court of Kenya invalidated a presidential vote in which the siting President, Uhuru Kenyatta, claimed victory. Kenyatta won the subsequent election re-run.

The law is being applied to settle the electoral process in the US and elsewhere. But the law’s role in tackling misinformation and disinformation and their effects on democracy is less clear.

Germany’s Network Enforcement Act (NetzDG) came into effect in October 2017 and obliges social media platforms to delete illegal content, including hate speech, within a certain timeframe.

Attempting to create an environment for greater internet transparency, Germany’s Federal Office of Justice imposed a €2m fine on Facebook in 2019 for incomplete reporting of complaints about unlawful content.

The NetzDG law was imposed to address hate speech, but as a natural consequence has implications for democracy. ‘In Germany there are heavy fines on social networks that don’t delete content. Obviously this causes the networks to be strict on content to avoid these fines,’ explains Dr Martin Schirmbacher, Member of the IBA Technology Law Committee Advisory Board and a partner at German law firm Härting Rechtsanwälte.

Schirmbacher understands that the law is difficult to police and compliance tricky, but warns that if regulation is further tightened to include policing of information on social networks that has an influence on an election – in a bid to overcome the effects of misinformation and fake news – there will be ‘side effects’.

‘Any obligation to make network providers have a close look at posts and mark particular comments will cause collateral damage and over-deleting,’ he believes.

Schirmbacher suggests that countries seeking to target misleading information and ‘fake news’ should establish a clear definition of what is misleading, as well as a ‘catalogue’ of what is allowed and what authorities wish to prohibit.

‘The social networks and the lawmakers ultimately have a similar interest,’ he says. ‘They want true information on their platforms. The social media platforms may profit from people posting stupid things, which [starts] discussions and [creates] further interest and engagement, but they have no interest in illegal information on the platform.’

Social media platforms have come under significant pressure in multiple jurisdictions as states attempt to tackle what some perceive as an epidemic of false statements and fake news. In 2019 for example, Singapore implemented the Protection from Online Falsehoods and Manipulation Act (POFMA), which requires social media sites to assign warnings to posts that the authorities deem to be false.

The problem for global democracy is that when posts are labelled or taken down or when social media accounts are inactivated, it takes time for any appeal-related process to be carried out. Even if and when the post is restored, it will have become outdated and less relevant.

In the United Kingdom, the government’s Online Harms White Paper – published in April 2019 – goes a step further by proposing to require social media companies to maintain archives of political advertisements. It also seeks to prevent the intimidation of candidates in elections.

Jacob Rowbottom, an Associate Professor of Law in the Faculty of Law, University of Oxford, says there are risks in using legal rules to combat misinformation and misleading statements. ‘Whether political arguments are convincing or a campaign is persuasive is ultimately for the electorate to decide. It is not for judges or other official institutions to pre-judge that,’ he believes.

While misinformation and fake news are spreading more readily thanks to the advent of social media, the traditional media can attempt to debunk the myths and false stories. Traditional media outlets have the ability to verify and fact check, enabling users to see the truth. ‘They can assess the claims being made and that can hopefully neutralise misleading statements,’ notes Rowbottom.

So is technology the enemy of free and fair elections? It shouldn’t be, according to Schirmbacher. ‘It is absurd that in times when everything is electronic, when my fridge is capable of communicating with my food delivery company, that in most countries people still have to go to a voting booth or post a ballot that is not secure,’ he comments.

He suggests the goal of every country should be to implement ‘technology that gets a vote done more quickly and more securely, rather than going somewhere to vote like we did 100 years ago.’