Fake News in Strasbourg: Electoral Disinformation and Freedom of Expression in the European Court of Human Rights (ECtHR)
This article examines case law of the European Court of Human Rights (ECtHR) concerning the right to freedom of expression and considers relevant jurisprudence in the context of electoral disinformation. Despite growing academic focus on the harmful effects of disinformation on electoral democracy, there have been persistent legal concerns surrounding how restrictions on false information could chill freedom of expression. At present, legal responses to disinformation across Europe are in flux. While there are growing shifts away from self-regulation and towards co-regulation at the EU level, it is unclear as to how stronger rules to curb false information can remain consistent with freedom of expression safeguards under international human rights law. This concern is also relevant when considering shifts in national laws across Europe, as numerous states have introduced restrictive legislation to tackle online falsehoods and have failed to provide adequate human rights safeguards.
Against this backdrop, this article provides clarity as to how lawmakers in Europe can restrict disinformation while respecting the right to freedom of expression. Specifically, this article narrows its focuses to ECtHR case law concerning Article 10 of the European Convention on Human Rights (ECHR). Applying this provision, the Strasbourg Court has developed extensive jurisprudence on freedom of expression and identifiable patterns can be derived from this case law that provide instructive lessons when combatting false information in political and electoral environments. Focusing on relevant patterns of the Court’s reasoning and considering these in the disinformation context, this article provides clarity on how legislators across Europe can develop binding legal rules to combat electoral falsehoods while respecting the protective contours of freedom of expression under Article 10.
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