The Importance of Upholding Our Core Values in a Digital Age

Richard Barrett, Member of the Venice Commission for Democracy through Law, Council of Europe

The core values of fundamental rights and electoral or political rights, as enshrined in international law and national constitutions, have to be respected whatever the changes in the environment.

These are the freedoms of expression and opinion, freedom of association, and, in the area of political rights, the right to equity in the electoral contest and equal value in the ballot.

While it is an oft quoted tenet of constitutional rights in the US that ‘freedom of expression is the lifeblood of democracy’, when this is applied in the electoral sphere the expressions of individual citizens are more sacrosanct and immune from restriction that the expressions in political campaigning. All our legal systems now have campaign funding rules and limits and transparency obligations. In the individual sphere it may be that the expression deserves protection irrespective of content, but that does not apply to a campaign.

All campaign restrictions, even those promoting transparency, must be seen firstly as an interference which must be justified, in European systems, according to a test of necessity and proportionality.

Regulators and election bodies during campaigns are now struggling to apply the existing tests to social media content or foreign material. This is a huge challenge but the principles do not change. The principles are well expressed in the Venice Commission’s Code of Good Practice on Electoral
Matters from 2002. They include:

• Equality of opportunity for parties and candidates;
• A neutral attitude by state authorities with regard to the election campaign, to coverage by the media, and to public funding of parties and campaigns;
• Equality of opportunity can be proportional rather than strict, and applies in particular to ‘radio and television air-time’;
• ‘In conformity with freedom of expression, legal provision should be made to ensure that there is a minimum access to privately owned audio-visual media, with regard to the election campaign and to advertising, for all participants in elections’;
• Campaign funding must be transparent;
• Equality of opportunity can lead to a limitation on political party spending, especially on advertising.

In the new digital world, manipulation of social media during an election campaign can undermine that equality of opportunity.

This undermining of equality of opportunity is one of the threats to democracy in the digital age. On the other side of the coin is the danger that excessive state intervention can undermine the very rights we are trying to protect.