Free and Informed Elections? Disinformation and Democratic Elections Under Article 3 of Protocol 1 of the ECHR

Abstract

This article examines European Court of Human Rights (ECtHR) jurisprudence concerning free elections and identifies relevant approaches that can be applied to electoral disinformation. The relationship between disinformation and freedom of expression has attracted considerable academic scrutiny in recent years. However, surprisingly little attention has been given to the right to free elections. This article addresses this gap by identifying key ECtHR approaches to free elections under Article 3 of Protocol 1 of the ECHR and evaluating the Court’s interpretive reasoning in the disinformation context. Focus is given to cases where the Court has addressed falsified information in the electoral process. Considering the special relationship between freedom of expression and free elections in Strasbourg jurisprudence, focus is also given to the Court’s contemplation of acceptable limitations to freedom of expression under Article 10 of the ECHR in response to deceptive political expression. Mapping the Court’s reasoning in key decisions, this article identifies informed democratic engagement as a crucial requirement that permeates the Court’s approach to elections. Considering the importance of democracy in the Court’s reasoning, this article argues that the Court should be more proactive in elucidating key standards for Contracting Parties to make democracies more resilient to electoral disinformation.