In Criminal Fraud and Election Disinformation: Law and Politics, Jeremy Horder embarks on a pioneering endeavour to advance a broad framework for the regulation of “intentionally false or misleading political speech (‘disinformation’)” (p. 1). As one of the first to advance a comprehensive normative theory as to the regulatory treatment of all forms of political disinformation, Horder’s ambitions are commendable. The book is a timely response to concerns surrounding disinformation during the 2016 EU Referendum (“Brexit”), the 2016 and 2020 US Presidential Elections, and the January 2021 attack on the US Capitol.
The book is also a necessary engagement with emerging legal regulation of online political disinformation and its consequential harms. The book engages with the German Network Enforcement Act 2017 (“NetzDG”) and the UK’s Online Safety Bill (now the Online Safety Act 2023). Further legal developments have emerged following the book’s publication, including the EU’s Digital Services Act (“DSA”). These legal developments have sought to address a range of harms associated with online communication, whilst contending with the challenge of balancing such regulation with the right to freedom of expression.
Amidst the debates on how to regulate harms associated with political disinformation in a manner consistent with the right to freedom of expression, the book proposes an elegant solution. This solution is based on a distinction Horder draws between two types of political disinformation: electoral participation disinformation and political viewpoint disinformation. This taxonomy is important in that it serves to support Horder’s normative claim that these two forms of political disinformation warrant different regulatory responses based on their respective speech content and consequential harms.
Horder defines electoral participation disinformation as “false or misleading information” about matters including “where to vote, about qualifications to vote or stand as a candidate, and about requirements for voting or vote-counting” (p. 1). Horder argues that electoral participation disinformation should be restricted through measures including “criminal offences, [and] internet platform take-down requirements” (p. 1). Horder argues that such an approach is necessary to protect the electoral system and individuals’ civil rights (p. 16).
In contrast, political viewpoint disinformation, which encompasses “factual claims – about the personal and political lives of candidates, and the attributes and policies of political parties”, should be regulated “in the same way as the expression of political opinion, and protected from restrictions” (pp. 3–4). Political viewpoint disinformation is a category which includes “a broader range of political falsehoods than those which are defamatory”, such as “threats” and “harassment” (pp. 7, 136–37). The book’s proposed solution to political viewpoint disinformation relies on US First Amendment ideas of “counter-speech: persuading people, non-coercively, to engage critically with such content” (p. 1).
The book provides both theoretical and pragmatic justifications for its proposed solution to political disinformation. The pragmatic justification relies on a cogent argument that judges may struggle with the “justiciability of allegedly false or misleading political speech”, undermining perceptions of impartiality in judicial determinations (p. 8). The primary theoretical justification for Horder’s approach to political viewpoint disinformation is based on a “legal and moral” theory of toleration (p. 136). Here toleration “as a moral outlook”, a concept more commonly associated with literature concerning the “public relationship between different mainstream religions” is distinguished from the narrower concept of “toleration as a political doctrine” (p. 94). Horder advances a novel idea that, beyond respect for freedom of expression, online platforms have “a duty of political viewpoint impartiality” or “(political ‘net neutrality’), associated with the moral outlook on toleration” (p. 97).
According to Horder, this duty prevents online platforms from restricting or criticising political viewpoint disinformation, and “may rule out active campaigning by platforms for evidence-based politics” (p. 97). However, Horder argues that online platforms may, consistent with the duty of neutrality, apply “unreliability warnings to allegedly false political viewpoint content (together with links to alternative sources of content), whilst leaving users free to post and share the content” (p. 97). Horder suggests that the use of such warnings should be limited to “highly trustworthy” sources, such as the online accounts of state leaders, and “inauthentic” sources, including unidentified political “bots” (p. 98). Given that online platforms have adopted similar policy approaches, Horder contends that online platforms are better equipped than states in advancing the regulatory solutions proposed by the book.
In Chapter 2, Horder seeks to illustrate this point with a multijurisdictional analysis of legal responses to online disinformation, through a study of Singapore, Germany, the UK, and the EU. The focal point of Horder’s analysis is differentiating “authoritarian disinformation strategies” from responses employed in democracies (p. 104). With respect to regulating political disinformation, Horder argues that there is an “overlap … in terms of what is legally proscribed or permissible, between authoritarian regimes, and militant democratic regimes”, particularly the use “of the criminal law … to require the suppression of false political viewpoint information on the grounds of the alleged harmfulness of its false content” (p. 105). Democracies which “reject” militant democratic approaches, on the other hand, “will generally not use the criminal law – or other forms of coercion – to protect officials or candidates from political viewpoint disinformation, whilst vigorously countering (through coercion if need be) electoral participation disinformation” (p. 105). Horder defends this claim through this multijurisdictional analysis, with Singapore as the “exemplar” of the authoritarian approach to the regulation of political disinformation (p. 106). Within this typology, Horder groups Germany alongside Singapore as an example of “Authoritarian Liberalism” (p. 109). This typology is based on Horder’s critique of the German NetzDG’s rigid timeframes for compliance and heavy sanctions on online platforms for non-compliance, which inevitably leads to the censorship of “merely challenging or provocative political content” (p. 112). In this regard, Horder argues “against militant democratic justifications for employing coercive pressure” in cases involving political viewpoint disinformation and asserts the “need for a ‘tiered’ approach that tailors legal-regulatory steps to the nature of the harms or risks” – one which is more aligned with the UK’s Online Safety Bill (now Act) (p. 114). The interaction between this legislation and political disinformation is limited by the fact that the UK’s legislative approach to disinformation is “opaque at key points” (p. 117). For example, Horder notes that political viewpoint disinformation does not fall within the scope of the legislation unless it already amounts to an offence under UK law. An example provided by Horder of political viewpoint disinformation which would fall within the scope of the legislation is speech captured by section 106 of the Representation of the People Act 1983, the subject of which is the focus of Chapter 3 of the book.
Chapter 3 shifts Horder’s attention away from the regulation of online political disinformation to the operation of UK laws concerning criminal defamation, hate speech, threats, and harassment. Chapter 3 is specifically concerned with the “election defamation offence” contained in section 106 of the Representation of the People Act 1983, as well as section 127(2) of the Communications Act 2003 and section 1(1)(a) of the Malicious Communications Act 1988, which are applicable to false statements amounting to “threats” and “harassment” (pp. 136–37).
With respect to section 127(2) of the Communications Act 2003 and section 1(1)(a) of the Malicious Communications Act 1988, Horder mounts a persuasive claim that these criminal law measures should not be used “to prioritize people’s insulation from being caused to endure…distress or needless anxiety” at the cost of freedom of expression (pp. 137–38). Horder proposes a well-considered reform of these provisions, and argues that statements which would otherwise be prohibited by these provisions should be protected if they constitute political viewpoint disinformation “directed by one election candidate (or their agents) at another during the course of a campaign” (p. 141). However, Horder argues that protection ought not to apply where “the statement was intended to, and did, have a seriously adverse effect on the victim’s state of mind” and “there was no opportunity to adequately counter the effect of the statement” (p. 142). In this sense, Horder argues for a nuanced approach that considers both the intent of the speech and consequences of the speech on the victim.
Chapter 3 further evaluates whether the UK’s “election defamation offence” contained in section 106 of the Representation of the People Act 1983 is consistent with the “case made for legal and moral tolerance of false political viewpoint information made in Chapters 1 and 2” (p. 136). Horder highlights that under this provision, political participants are protected from “false statements about [their] ‘personal’ character or conduct” but not false statements about their “political character or conduct” (p. 154). Horder contends that, consistent with the book’s proposed solution to political disinformation, both false statements about personal conduct and false statements about political conduct should be protected as political viewpoint disinformation. Horder persuasively justifies this argument through a rigorous analysis of case law on section 106 of the Representation of the People Act 1983, and argues that the distinction drawn by the judiciary between a political attack and a personal attack is often unclear. The cogency of this argument sets the frame for Chapter 4, which, through an analysis of UK, Canadian and Australian case law, examines the flaws of judicial adjudication in the context of “electoral fraud” or “wrongdoing”.
Chapter 4 focuses on section 115 of the Representation of the People Act 1983 and section 282.8 of Canada’s Elections Act 2000. Accordingly, Chapter 4’s focus is “not so much on the substantive political case for tolerating the dissemination of political viewpoint fraud (the main concern of Chapter 1), but on an argument that such an expansion wrongly places the judiciary in a position in which they have to take an overtly political approach to adjudication, in determining the applicability of criminal sanctions” (p. 166). Chapter 4 links to the book’s proposed solution to political disinformation in that Horder sees the distinction between political viewpoint disinformation and electoral participation disinformation embodied in the Canadian law, while this distinction remains “unclear in the UK” (p. 181). The book concludes by claiming that “a proper regard for tolerance and free political speech requires, on rule-of-law grounds, that would-be speakers should not be deterred from speaking by the unpredictable threat of legal sanctions following an ex post facto court judgment that they were guilty of political viewpoint falsehoods” (p. 187).
The book can be critiqued on interrelated methodological and substantive grounds. A methodological challenge lies in Horder’s broad selection of jurisdictions. For example, Chapter 2 of the book contains a multijurisdictional analysis of the regulation of political disinformation in Singapore, the UK, the EU, and Germany. Given the diversity of the selected legal systems, there is a need for a methodological justification of the jurisdictional selection. Instead of providing a justification, the book places these jurisdictions on a spectrum of “authoritarianism/militant” or “democratic” responses, overlooking relevant differences underlying their distinct approaches to speech regulation.
Moreover, the utility of this multijurisdictional analysis in the broader framework of the book is notably limited, as this analysis is not addressed beyond Chapter 2 of the book. For example, the analysis in Chapter 4, which argues against judicial adjudication of criminalised forms of political disinformation, excludes models of political disinformation regulation which do not encompass judicial adjudication (such as the NetzDG). In this regard, while the book advances an ambitious claim regarding the regulation of political disinformation, this claim ultimately proves to have scarce relevance to forms of legal regulation of political disinformation which do not rely upon criminal judicial adjudication.
A further methodological issue is raised by the book’s expansive approach to canvassing regulatory responses to political disinformation. Horder acknowledges the scope of the book limits the capacity to address exceptions to the central claim, including political viewpoint disinformation that ought to be restricted (such as hate speech). However, Horder examines a spectrum of online platform policy responses, as well as criminal, constitutional, and civil law approaches to political disinformation. This broad methodological choice inhibits Horder’s ability to coherently analyse certain responses to political disinformation. For instance, Horder makes it clear from the outset that the book “reject[s]” “‘militant’ democratic thinking: the use of the rationalistic fallacy to justify the use of coercion and restriction, on the grounds that false political viewpoint speech threatens democratic government” (p. 5). In light of the jurisdictional analysis contained in Chapter 2, this argument anticipates some engagement with militant democracy as reflected under the German Basic Law. Horder engages with Article 5 of the Basic Law (protecting freedom of expression), yet does not engage with the Basic Law’s militant democratic elements, including Article 21(2) (regarding unconstitutional political parties) or more relevantly, Article 18, which concerns the abuse and forfeiture of rights, including freedom of expression. In addition, Horder’s claim presupposes engagement with literature and relevant principles concerning militant democratic theory or critiques of such theory. The failure of the book to do either of these tasks sets the book’s vehement rejection of militant democratic theory on a shaky foundation.
The book argues that militant democracy reflects a political endeavour to protect “rationalistic” or “establishment” political viewpoints at the cost of democratic principles and the right to freedom of expression (pp. 5, 109). Horder equates militant democracy with “authoritarian” governance and “moral intolerance” (p. 13). In doing so, Horder overlooks the fact that militant democracy, as a constitutional principle, is a structural constitutional safeguard which seeks to prevent the abolition of key components of the democratic state. Relatedly, and in contrast to Horder’s description, militant democracy has been described as having a rights-expansionary effect (M. Rosenfeld, “A Pluralist Theory of Political Rights in Times of Stress” (London) in W. Sadurski (ed.), Political Rights Under Stress in 21st Century Europe (Oxford 2006), 44).
Instead of engaging with these conceptions of militant democracy, the book links the principle to the promotion of certain political viewpoints. This view is untethered from the nature of militant democracy, both on a doctrinal and theoretical level. Militant democracy under the German Basic Law, for example, serves to protect a constitutional “system bound to values” (M. Thiel, The ‘Militant Democracy’ Principle in Modern Democracies (London 2009), 107), including fundamental rights and institutions of government, and establishes criteria for the abuse of this system as an “offence against the constitution” (D. Oberndorfer, “Germany’s Militant Democracy” in D. Kretzmer and F. Hazan (eds.), Freedom of Speech and Incitement Against Democracy (The Hague 2000), 236). The high standard for intervention pursuant to the German Basic Law reflects the notion that militant democracy is a measure of last resort. Thus, militant democracy has little to do with the content of political viewpoints up until the point that such political content meets the criteria of seeking to overthrow the basic democratic constitutional structure of the state.
