Disinformation and Democracy on the Docket: Reformulating the Approach to Electoral Disinformation under the ECHR

With the pending case of Bradshaw and others v United Kingdom, the European Court of Human Rights finds itself at a crossroads: it can either cement its free elections jurisprudence under article 3 of Protocol 1 (P1-3) of the European Convention on Human Rights or it can recalibrate and refine it to better safeguard the electorate’s democratic rights in the face of electoral disinformation and foreign information manipulation and interference. This article makes the doctrinal and normative case for the latter option. We scrutinise three limitations in the jurisprudence: first, the Court’s individualised approach to electoral falsehoods under P1-3, at the expense of the electorate’s rights as informed democratic participants; second, the focus on reactive positive obligations to combat electoral disinformation, rather than proactive measures to ensure the free expression of voter choice; and finally, the lack of clarity about how the rights to free elections and to freedom of expression should be read harmoniously where they conflict.