The Limits of Law? The Multifaceted Approach of the French Legislation to Tackle Foreign Election Interference through Digital Disinformation

As France is traditionally opposed to electronic voting, foreign election interference could take the form of disinformation disseminated online. This paper first studies the foreign election interference that occurred in France, during the 2017 presidential campaign, and that targeted more particularly the future president of the republic, Emmanuel Macron. This paper then analyses the new laws on the fight against the manipulation of information, adopted in reaction to the 2017 electoral interference. It studies how those laws aim to react to manipulation of digital information before general elections and national referenda. The French regulatory broadcasting agency may suspend, interrupt, or refuse broadcasting of false information by audio-visual media controlled or influenced by a foreign state. A new judge sitting for urgent matters may order the suspension or suppression of digital false information. The powers of the regulatory broadcasting agency and the new judge are however restrained by the need to respect the right to freedom of expression. This paper then studies how the new laws aim to prevent manipulation of digital information. They give users of online platforms more means to critically assess digital information and be less influenced by it. Thus, online platforms must be more transparent about the information they host, especially during electoral campaigns. Furthermore, information and media literacy are strengthened. Finally, this paper concludes that the efficiency of the new legislation to react to foreign election interference through disinformation remains modest. It argues that the fight against foreign digital misinformation should focus on the empowerment of online platforms’ users. Facilitating the detection by those users of foreign disinformation spread online is the way forward to diminish its impact in electoral campaigns.

Combatting Foreign Election Interference: Canada's Electoral Ecosystem Approach to Disinformation and Cyber Threats

This paper argues for an “electoral ecosystem” approach to combatting the threat of foreign intervention in elections. Under an electoral ecosystem approach, the electoral system is viewed as an interconnected network of institutions, processes, and actors, all of which must coordinate together to ensure electoral effectiveness and legitimacy. To further explore the electoral ecosystem approach, this paper focuses on Canada’s response to foreign interference in elections. The ecosystem approach consists of several strategies, including new campaign finance regulations, new measures to reduce disinformation and to lessen its distorting impact on democratic discourse, and various measures to strengthening Canadian cyber security. The paper claims that these strategies provide protection across the electoral ecosystem.

Strangers in Strange Lands: Constitutional Formalities, Power Realities, and Comparative Anglophone Responses to Foreign Election Meddling

Both the UK and US experienced foreign meddling through social media disinformation campaigns sponsored by foreign powers in 2016, a trend that shows no sign of abating. The American backlash against this meddling yielded the greatest challenge to executive power in decades through Trump’s impeachment. The response in the UK – a committee report that Boris Johnson’s Downing Street has procedurally suppressed – has been far more muted. This apparently poses an ominous paradox for UK governance: the UK has fewer formal mechanisms (a written constitution, robust judicial review) for checking a perhaps-tainted democratic will. Yet a closer look reveals a more subtle parallel: in the UK leadership selection mechanisms insulate actual state power from the electorate far more than in the US. The UK reaction may reflect particular political realities; a more general lesson is that foreign meddling must be considered in its broader constitutional and political context.

Islands in the Storm? Responses to Foreign Election Interference in Australia and New Zealand

Australia and New Zealand have only recently adopted legislation addressing the question of foreign “interference” in electoral campaigns, and in particular foreign political finance. This paper explores and compares the two nations' responses, explaining both the political context and the legal ramifications of these responses. The nations share much in common that is relevant to the question of foreign electoral involvement—each is an island, with a Westminster colonial parliamentary tradition, perched between the southern edges of Asia and the western edges of Oceania. Unsurprisingly, the responses (though not coordinated) have so far been similar. In each case, a key driver has been storm clouds in the form of growing influence of the People's Republic of China, a factor that is not fully admitted in either nation given their reliance on trade with China.

The Shakedown

The US Supreme Court has taken a very restrictive view of the type of state interests sufficient to warrant regulation of campaign or political party financing. This narrow approach to political corruption sits uneasily with current US law banning foreign actors from financing domestic election expenditures. The Court has so far upheld these bans, using an under-theorized rationale grounded in the need to restrict electoral influence to members of the relevant community, but the bans seem unlikely to survive the more robust judicial interrogation they will certainly face in the near future. Drawing on existing case law involving restrictions on the political activity of federal employees and contractors, this paper argues that the constitutionality of foreign expenditure bans is better supported by the “anti-shakedown” rationale used in those cases.