The European Court of Human Rights has handed down judgment in the case of Bradshaw & Others v United Kingdom (app no. 15653/22). This case was brought by a group of MPs challenging the Government’s response to reports of interference by Russia in the United Kingdom’s democratic processes, including the 2019 general election.
There had been credible allegations that Russia had sought to interfere in the UK’s democratic elections, such as through the running of online influence campaigns and the use of bots. The applicants argued that the Government had breached Article 3 of Protocol No 1 (the right to free elections), by failing to fulfil a positive obligation to investigate those allegations, and had not put in place an effective legal and institutional framework in order to protect against the risk of interference.
The Court accepted the Government’s analysis that previous violations of Article 3 of Protocol 1 have mostly fallen into three categories: direct restrictions by the State on who may stand or vote in an election; failure by the State to act in accordance with its own electoral law; and failure by the State to provide a reasonably fair and effective system of remedies for alleged breaches of electoral law. The Court accepted the Government’s submission that there is no duty to investigate arguable claims of breaches of individuals’ rights to a free election.
However, it found that the law must be interpreted in light of new technologies, which have “made it possible for hostile actors to spread disinformation and manipulate information at a scale and with a speed never seen before”. Therefore, States should not remain passive when faced with evidence that their democratic processes were under threat. That said, they must be given a considerable margin of appreciation in their choice of how to counter such threats. In the Court’s view, there had been two thorough and independent investigations, and the Government had since taken a number of legislative and operational measures to counter disinformation efforts and protect the democratic integrity of the UK. Any failings were therefore not sufficiently grave as to have impaired the very essence of the applicants’ rights, or to fall outside the UK’s margin of appreciation.
Christopher Knight and Hannah Slarks acted for the UK Government, led by Sir James Eadie KC. Christopher Knight acted in the domestic judicial review proceedings.
