When will the Courts extend human rights law principles in order to keep up with emerging technology? The Strasbourg Court gave us some answers in Bradshaw & Others v United Kingdom (app no. 15653/22) . However, they may not have been the last word, because this week, the Applicants have sought a referral to the Grand Chamber.
The claim
A group of MPs argued that the Government was not doing enough to combat Russian interference in UK elections, including in the 2019 general election. They were concerned with credible allegations that Russia had engaged in deliberate cyber-attacks against election infrastructure, “hack and leak” operations, and the use of “cyber troops” and “troll farms” to manipulate public discourse and to sow discord between social groups.
The Applicants complained that the government had not investigated those allegations. Nor had it put in place an effective legal and institutional framework to protect against the risk of an interference.
They brought a judicial review under Article 3 Protocol 1 (“A3P1”) of the European Convention on Human Rights, under which States “undertake to hold free elections… under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
The High Court found that there was no arguable obligation under A3P1 to undertake an investigation or to put in place specific protections and structures to protect elections. Further, the challenge to the legal framework amounted to a complaint that the Government had failed to legislate, which must fail because it is outside the scope of s.6 of the Human Rights Act 1998.
The Court of Appeal refused permission to appeal, and the case went to Strasbourg.
Strasbourg’s judgment
Strasbourg upheld the domestic finding that there was no obligation to undertake investigations under A3P1, even though obligations to investigate arise under other Articles of the Convention (§138).
However, the Strasbourg Court took a more activist approach to whether there are positive obligations to put in place structures to protect the electoral system.
The Court accepted the Government’s analysis that, so far, the case law under A3P1 had broadly fallen into three categories: direct restrictions by the State on who might 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 (§130).
The Applicants had sought to extend the law beyond these categories, and the Court was open to this. The Court found that A3P1 lays down more general rights and obligations than this, including positive obligations (§130). Rather than stay within the confines of the jurisprudence to date, the Court’s position seemed to be that technology had changed, and the law needed to keep up. It concluded:
“133. Nonetheless, although the Court has, to date, only dealt with cases concerning conditions created by (or within) the respondent State which, it was argued, thwarted the free expression of the opinion of the people in the choice of legislature, the object and purpose of the Convention require its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective…
- In this regard, it is not in dispute that State actors and non-State actors have weaponised disinformation in order to interfere in democratic elections. While new technologies, such as social media platforms, have enabled political parties to disseminate information directly to the electorate, they have also made it possible for hostile actors to spread disinformation and manipulate information at a scale and with a speed never seen before…
…
- Accordingly, the Court would accept that if there was a real risk that as a consequence of interference by a hostile State the rights of electors within a member State would be curtailed to such an extent as to impair their very essence, namely the free expression of the opinion of the people in the choice of their legislature, and deprive them of their effectiveness…, Article 3 of Protocol No. 1 may require that State to adopt positive measures to protect the integrity of its electoral processes, and to keep those measures under review.”
On the facts, the Court found that the UK Government had done enough to put in place systems and structures to respond to the allegations of Russian interference elections, judged within a wide margin of appreciation (§163). A win for the defending 11KBW team.
Potential for future human rights claims
Despite this outcome, it’s significant that the Court has put into words its willingness to extend human rights law to create new positive obligations in order to keep pace with technology. This approach should not surprise us. It’s consistent with the Court’s principle that “the Convention is a living instrument … which must be interpreted in the light of present-day conditions” (Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26). Still, claimant lawyers in all kinds of human rights claims (not just A3P1) will be keen to test the power of clear words to the effect that human rights obligations must sometimes expand to protect us from threats from new tech.
We will now have to wait to see if the Grand Chamber has more to say on the subject.
Christopher Knight and Hannah Slarks of 11KBW acted for the Government, led by Sir James Eadie KC.
Hannah Slarks