Abstract
In the wake of the 2020 presidential election, incumbent Donald Trump voiced dubious allegations of vote fraud. In response to that, social media giants Twitter and Facebook made a dramatic step of attaching corrective statements to the U.S. president’s posts. By doing so, they highlighted their power over core political speech. In his 2014 article ‘Old-School/New-School Speech Regulation’, influential American legal scholar Jack Balkin argued that today speech is often suppressed by private actors, controlling the digital infrastructure, rather than directly by governments.
In a follow-up article ‘Free Speech in Algorithmic Society’, Balkin suggests that there is a triangular relationship between governments, corporations and end-users. My contribution will discuss this triangulation in the context of electoral speech. In recent years, the threat of foreign interference in elections became a widely discussed issue in established democracies. These discussions specifically highlighted the role of social media. They have also led to an increasingly aggressive policing of election-related content on major platforms such as Facebook and Twitter.
This chapter suggests that securitisation of elections in established democracies occurs primarily as cooperation between private actors and governments. The apparent exclusion of end-users is a worrying tendency. It obscures the distinction between established democracies and competitive authoritarian regimes, ultimately undermining the very democratic legitimacy that needs to be secured. I argue that, given the role of social media companies in the current environment, their obligations go beyond the traditional notions of corporate social responsibility. These companies have de facto assumed the role of a regulator effecting election securitisation in online speech. I suggest that such (self-) regulation could only be proportionate, if internationally recognised standards of free elections are considered.
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Notes
- 1.
‘Quis custodiet ipsos custodes?’, Satire VI, lines 347–348.
- 2.
Biden v. Knight First Amendment Institute, Thomas J., concurring.
- 3.
Balkin (2014), p. 2304.
- 4.
Balkin’s approach here aligns with authors noting the tendency of governments to outsource certain functions to private actors. See, for example, Verkuil (2007).
- 5.
‘Data centered economies foster extractive models of resource exploitation, the violation of human rights, cultural exclusion, and ecocide. Data extractivism assumes that everything is a data source’. Ricaurte (2019).
- 6.
Morozov et al. (2016).
- 7.
Brady et al. (2021).
- 8.
Ibid.
- 9.
Finkel et al. (2020).
- 10.
Balkin (2018), p. 1175.
- 11.
- 12.
‘Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected’, Human Rights Committee, General Comment 25 (57).
- 13.
‘Democratic elections are not possible without respect for human rights, in particular freedom of expression and of the press’, Code of Good Practice in Electoral Matters, Organization for Security and Cooperation in Europe and the Venice Commission (2002).
- 14.
Møller and Skaaning (2010).
- 15.
Levitsky and Way (2010).
- 16.
Facebook Oversight Board has questioned the indefinite character of Mr. Trump’s suspension from the platform, prompting the social media company to subject it to regular reviews. See Case decision 2021-001-FB-FBR of 5 May 2021.
- 17.
The justices of the U.S. Supreme Court were quick to note this, opining that ‘…(t)hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer’. Reno v. American Civil Liberties Union (1997).
- 18.
Balkin (2014), p. 2304.
- 19.
Ibid, pp. 2308–2314.
- 20.
Ibid, pp. 2318–2324.
- 21.
Ibid, p. 2325.
- 22.
Balkin (2018), p. 1175.
- 23.
Ibid, pp. 1182–1184.
- 24.
Ibid, p. 1162.
- 25.
Ibid, p. 1165 (internal quotations omitted).
- 26.
Morozov (2017).
- 27.
Ibid.
- 28.
Case C-131/12, Google Spain.
- 29.
Delfi AS v. Estonia.
- 30.
‘We regret that the Court did not rely on the prophetic warnings of Professor Jack Balkin’, Ibid, Joint Dissenting Opinion of Judges Sajó and Tsotsoria, Para. 2.
- 31.
Helfer and Land (2021).
- 32.
The Charter of the Facebook Oversight Board states that ‘When reviewing decisions, the board will pay particular attention to the impact of removing content in light of human rights norms protecting free expression’. In its decision on Trump’s suspension from the platform, the Board explicitly referred to the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. In its subsequent decision, the Board ruled that a decision to remove content was both unnecessary and disproportionate in terms of human rights obligations. See Case decision 2021-004-FB-UA of 26 May 2021, https://oversightboard.com/decision/FB-6YHRXHZR/.
- 33.
For instance, according to the data compiled by the scholars of the Wesleyan University, in the 2020 electoral cycle in the United States, presidential candidates Donald Trump and Joe Biden spend over $360 million of their combined $1.5 billion advertising budget on ads placed on platforms owned by Google and Facebook. See Baum (2020).
- 34.
Kommers (2006).
- 35.
This logic seems to have underpinned the judgements of the Federal Constitutional Court, which on several occasions has refused to place the ban on the far-right National Democratic Party. Although the party has achieved representation in legislatures of several federal states, it has never been able to breach the electoral threshold for the federal Bundestag.
- 36.
‘From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned’. United Communist Party of Turkey v. Turkey, Para. 57.
- 37.
Refah Partisi (Welfare Party) v. Turkey, Para. 107.
- 38.
Ibid., Paras. 108, 110.
- 39.
‘Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it’. The United Communist Party of Turkey v. Turkey, Para. 45. See also Vidmar (2010), p. 209.
- 40.
Levitsky and Way (2010), p. 5.
- 41.
See, for instance, The United Communist Party of Turkey v. Turkey, Paras. 9–10, Socialist Party and Others v. Turkey, Paras. 9–15, Dicle for the Democratic Society Party v. Turkey, Paras. 7–24, Democracy and Change Party v. Turkey, Paras. 7–16.
- 42.
Convention on Standards of Democratic Election, Voting Rights and Freedoms in the Member States of the Commonwealth of Independent States, Article 1.
- 43.
References to the case-law of the European Court of Human Rights (ECtHR) are given here primarily for illustrative purposes. The Court relies upon same international electoral standards (such as the Code of Good Practices in Electoral Matters) as I suggest for the social media companies. However, I do not claim that the ECtHR judgments are necessarily decisive in the interpretation of these standards.
- 44.
Freedom of expression is one of the ‘conditions’ necessary to ‘ensure the free expression of the opinion of the people in the choice of the legislature’, Orlovskaya Iskra v. Russia, Para. 110.
- 45.
Nonetheless, in certain circumstances the two rights may come into conflict, and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, to secure the ‘free expression of the opinion of the people in the choice of the legislature’, Bowman v. the United Kingdom, Para. 43.
- 46.
Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Vol. 1, p. 14.
- 47.
Ibid, p. 25.
- 48.
Ibid, p. 26.
- 49.
Ibid, p. 29.
- 50.
Ibid, pp. 23, 27, 31.
- 51.
United States v. Internet Research Agency.
- 52.
Barberá et al. (2015), pp. 1–12.
- 53.
Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Vol. 1, pp. 36–41.
- 54.
Report of the Select Committee on Intelligence, United States Senate on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election, Vol. 1: Russian Efforts Against Election Infrastructure With Additional Views.
- 55.
Facebook Outlines New Election Security Measures In the Lead Up to the 2020 Election (2019).
- 56.
Ibid.
- 57.
Ibid.
- 58.
Facebook Outlines New Measures to Protect the Integrity of the US Presidential Election (2020).
- 59.
Expanding our policies to further protect the civic conversation, Twitter (10 September 2020), l.
- 60.
Pursuant to the Presidential Transition Act of 1963 with subsequent amendments, the GSA Administrator issues a ‘letter of ascertainment’ to the ‘apparent successful candidate’ to facilitate acquisition of office space and communication with federal agencies.
- 61.
Paul (2020).
- 62.
Facebook, Twitter Take Action to Maintain Election Integrity as Vote Counting Continues (2020).
- 63.
See Election Integrity, Facebook and Civic integrity policy, Twitter.
- 64.
Code of Practice on Disinformation.
- 65.
Such an approach would align with Balkin’s vision that social media companies have to change their self-conception. ‘Ideally, they would come to understand themselves as a new kind of media company, with obligations to protect the global public good of a free Internet, and to preserve and extend the emerging global system of freedom of expression’. Balkin (2018), p. 1209.
- 66.
‘A widely noted and characteristic feature of the digital age is the democratization of information production, and therefore the democratization of opportunities to speak and express one’s self. The ‘disintermediation’ often associated with the Internet does not involve the abolition of media gatekeepers but rather the substitution of one kind of infrastructure for another. Balkin (2014), p. 2304.
- 67.
Lingens v. Austria, Para. 42.
- 68.
The practice of the European Court of Human Rights, for example, recognises this by deferring to domestic decision-making in setting certain electoral rules. See Kurnosov (2021).
- 69.
- 70.
Golubok (2009), pp. 386–389. The membership of the OSCE and the Venice Commission includes major democracies of Eurasia and the Americas. In African context, Article 17 of the African Union Charter on Democracy, Elections and Governance may also be pertinent to the regulation of electoral speech.
- 71.
Helfer and Land (2021).
- 72.
Facebook Election Integrity Policy. The company claims to rely on dialogue with stakeholders and its independent risk assessment.
- 73.
‘…the Community Standard should clearly explain to users how bullying and harassment differ from speech that only causes offense and may be protected under international human rights law’. Case decision 2021-004-FB-UA of 26 May 2021.
- 74.
Ibid.
- 75.
A Look at Facebook and US 2020 Elections, p. 14.
- 76.
The ambiguity of this decision by Facebook might have been a contributing factor in operators of Telegram messenger shutting down an opposition channel before the 2021 Russian State Duma election. The messenger’s administration referred to the ‘period of reflection’ in Russian electoral law. However, such a reading of law seems to have benefitted the country’s competitive authoritarian regime.
- 77.
Twitter Civic Integrity Policy.
- 78.
Facebook Oversight Board has already noted the potential risks of imprecisely worded policies for political speech on social media platforms in its decision 2021-004-FB-UA. See Helfer and Land (2021).
- 79.
For instance, in 2018 Democratic Party candidate Stacey Abrams refused to concede the Georgia gubernatorial election to the Republican winner citing concerns over election fairness. See The Latest: Kemp says Georgia race over, state to look ahead, Associated Press (17 November 2018).
- 80.
Hesli (2006).
- 81.
‘The state must punish any kind of electoral fraud’. Code of Good Practices in Electoral Matters, supra note 74 at 3.2. ‘Free elections are to be seen as both an individual right and a positive obligation of the State, comprising a number of guarantees starting from the right of the voters to form an opinion freely, and up to careful regulation of the process in which the results of voting are ascertained, processed and recorded’. Davydov and Others, Para. 285. Moreover, empiric public opinion research suggests that appearance of electoral fraud affects public confidence in elections. See Fortin-Rittberger et al. (2017), pp. 350–368.
- 82.
See, for example, Newton (2019).
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Kurnosov, D. (2022). Who Watches the Watchmen? Social Media and Election Securitisation. In: Hindelang, S., Moberg, A. (eds) YSEC Yearbook of Socio-Economic Constitutions 2021. YSEC Yearbook of Socio-Economic Constitutions, vol 2021. Springer, Cham. https://doi.org/10.1007/16495_2022_39
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