Guarantees of freedom of expression in social networks and media. Doctrine of the Central Electoral Board during the Spanish elections held in 2023

Abstract

Regarding the state of the question (Chapter 1. Introduction) we note, on the one hand, that in Spain there is a legal vacuum about the regulation and responsibility of social networks (as pointed out in STS 35/2022), to which is added that the entire European Union is awaiting the effective application of the recent Digital Services Act (DSA) of 2022. On the other hand, during election periods, it is the electoral boards that are legitimised in the first instance to set limits. However, social networks have sometimes acted as "parallel electoral boards" taking automated decisions or not affecting parties, coalitions, or candidacies; Twitter (now X), Facebook (now Meta) or WhastApp, for example.

In chapter 2, we address the legal guarantees against disinformation, highlighting, on the one hand, freedom of the press and freedom of expression and, on the other, the institutional role given to the electoral authorities in Spain by Organic Law 5/1985 of 19 June 1985 on the General Electoral Regime (LOREG). Chapter 3 specifically analyses the decisions of the Central Electoral Board (hereafter JEC), both in the precampaigns for the elections of 28 May and 23 July 2023 and in the campaigns themselves. While in the former case we focus on the use of social networks by candidates (Instagram and Twitter), in the latter case we highlight cases related to narratives and hoaxes of postal vote fraud, as well as decisions of the Board on media coverage, television debates, opinion columns, or journalists' access to rallies.

In terms of method and development, we combined the use of primary sources from the JEC with the analysis of hoaxes and alleged fraud reported in the media, using the detection tool of the Complutense Observatory of Disinformation (Observatorio Complutense de la Desinformación).

One of the conclusions is that the JEC has respected the role of the press and the media's right to communicate in art. 20 (Spanish Constitution). And another is that, in the necessary updating of the LOREG, the role of the JEC must be strengthened because, in practice, they do not currently have the capacity to respond to the level or dimension of the problems encountered, partly because the social networks are in other jurisdictions and because they lack the means and infrastructure for the supervision expected of them.

Summary: 1. INTRODUCTION. 2. INSTITUTIONAL SAFEGUARDS AGAINST THE RISKS OF DISINFORMATION. THE POWER OF SOCIAL NETWORKS DURING THE ELECTORAL PERIOD IN SPAIN. 2.1. Legal framework of the Electoral Administration in Spain in its role of supervising social media campaigns and setting limits to freedom of expression. 2.2. Other necessary constitutional guarantees during election time: freedom of the press and the right to information. 3. JEC DECISIONS RELATED TO SOCIAL MEDIA OR FREEDOM OF EXPRESSION IN THE 2023 ELECTIONS. 3.1. JEC DECISIONS DURING THE 2023 PRE-CAMPAIGNS. 3.1.1. Those related to social media and one about content. 3.1.2. Complaints about fake news. 3.2. JEC DECISIONS DURING THE 2023 CAMPAIGNS. 3.2.1. On voting, postal voting, hoaxes and fraud narratives 3.2.2. Complaints about the inappropriate use of networks such as Twitter or Facebook. 3.2.3. Media coverage complaints. 3.2.4. Cases about attribution of advertising, candidacy, branding or identity. 3.2.5. CEC doctrine on accreditation of journalists, news reports and press articles during the campaign. 4. CONCLUSIONS.