New technologies and business models often challenge existing laws and regulations. However, the application of new technologies is not only limited to business — it is also employed by state and regional actors with ever-increasing potency.
A classic example is the information war waged online. In the past few years, people have seen totalitarian regimes use the open nature, freedoms and human rights protections of democratic societies to unleash an asymmetric campaign of misinformation online designed to blur the line between fact and fiction, truth and lies.
On the relatively benign end of the scale, this can involve attempts to influence the outcome of democratic elections, but in more serious cases, it can result in total paralysis of the democratic system.
From the 2016 US presidential election, the 2017 Brexit referendum and France’s 2017 presidential election, as well as the upcoming EU parliamentary elections, innovative technologies and new techniques are having an effect on politics the world over and eroding the foundations of democracy.
The question is: Faced with the ever-evolving nature of technology and an unpredictable online information war, what legal measures can be taken by democratic nations to strengthen their “immune systems” against such attacks, without hindering their ability to uphold the basic democratic and human rights of their citizens?
There is evidence from the US and Europe of Moscow using information warfare to influence the elections and politics of democratic societies.
What legal methods have European nations employed in response to Russian attacks?
The EU is well aware of how the information war has blurred the lines between war and peace.
It is becoming ever easier to launch an informational, societal and psychological “hybrid attack,” of which the online information war forms just one element.
As a result, three years ago, the EU established the European Center of Excellence for Countering Hybrid Threats.
What is a “hybrid attack” or “hybrid threat”?
The center defines hybrid threats as:
First, coordinated action that “deliberately targets democratic states’ and institutions’ systemic vulnerabilities through a wide range of means.”
Second, activities that exploit the “thresholds of detection and attribution, as well as different interfaces,” such as “war-peace, internal-external, local-state, national-international, friend-enemy.”
Third, activities that aim to “influence different forms of decisionmaking at the local (regional), state or institutional level to favor and/or gain the agent’s strategic goals while undermining and/or hurting the target.”
During the 2017 French presidential election, a hybrid attack occurred containing these characteristics.
According to French electoral law, all campaign activities should cease several hours before voting starts, but a post appeared on a far-right social media organization operating outside of France. Attached to it was 9 gigabytes of data on then-presidential candidate Emmanuel Macron.
The data — which included Macron’s e-mail address, documents and photographs — contained information that sought to implicate Macron in alleged overseas money laundering.
The post, which appeared to have originated from a genuine e-mail address, was appended with the hashtag #MacronLeaks and quickly began trending on social media.
Just minutes before the campaign ended, Macron’s team released a statement that his e-mail had some time ago been hacked and said that the hackers had embedded fake documents among real stolen information to sow confusion.
The Macron camp, forced to clear his name within the few remaining minutes of campaigning, was spooked by the attack. The incident provided the impetus for the Law Against the Manipulation of Information.
The law allows political parties or electoral candidates to apply to a court for an injunction to prevent the spread of suspected fabricated information up to three months before the beginning of an election. Judges are required to make a decision within 48 hours of an application.
The law also gives the French Superior Council of the Audiovisual — similar in function to Taiwan’s National Communications Commission — the power to shut down a television channel if it is deemed to be under the control or influence of a foreign power.
The law has been controversial, attracting a great deal of debate in France, and only time will tell whether it is an effective tool against the spread of fake news.
Nevertheless, it is crucial that democratic societies are fully aware of the important part the online information war plays within the wider hybrid threat, that they tighten up the law where necessary and remain flexible when drawing up new policies.
Christy Chiang is an associate professor of intellectual property law at National Taipei University of Technology.
Translated by Edward Jones
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