This document discusses the intersection of artificial intelligence, disinformation, and fair elections, highlighting the evolution of legal frameworks in Europe and Australia regarding online misinformation. It examines regulatory challenges and historical aspects of disinformation in electoral contexts, including instances from India, the U.S., and Europe. Additionally, it emphasizes the importance of media literacy, proper regulation of digital content, and the need for collaborative efforts among nations to enhance cybersecurity and election integrity.

1. ARTIFICIAL INTELLIGENCE,
DISINFORMATION AND FAIR
ELECTIONS
PROFESSOR CHRIS MARSDEN @ALIGARH UNIVERSITY
MONASH LAW SCHOOL
24 JANUARY 2024

2. ACKNOWLEDGEMENT OF COUNTRY
UNCEDED LANDS OF VICTORIA

3. AUSTRALIA IMAGINED BY AI

4. LONDON IMAGINED BY AI – MORE ACCURATE…

5. INTERNET & DIGITAL DATA
TRANSFORMS LIVES
• In profound matters of managing society: Agriculture, power, supply chains
• And more trivial but civilized matters too
• Culture, art, civilization
• Free speech, hate speech, robot speech
• Hyderabad is in everyone’s thoughts – 2012 again?
• Cook’s spin twins Swann & (Sikh) Panesar
• Travis Basevi & Vishal Misra, scorecard database & stats engine Statsguru
• Possibly the most used stats database in the history of the world…
• CricInfo 15 March 1993 (Simon King, UK researcher at the University of Minnesota)
• Designed by volunteers using open code – now owned by ESPN/Disney
• https://www.theguardian.com/sport/2022/nov/02/travis-bavesi-the-statsguru-visionary-who-transformed-cricket-spin

6. MONASH (ST KILDA) AND ALIGARH
• Home of cricket legend – I’m a Pom who moved 2 years ago, but huge fan!
• I visited Aligarh on the road from Delhi to Agra in 1991 – it’s probably changed…

7. ARTIFICIAL INTELLIGENCE IN CRICKET AND MISSILES
• HotSpot and Hawk-Eye
• civilian adaptations of military AI
• Imagine the ball is a missile travelling at 1500kph
• That’s where it comes from…
• you thought Bumrah bowled rockets!
• https://www.hindustantimes.com/cricket/the-surprising-friendship-between-cricket-and-military-
technology/story-imCL2DylQcRFiBBsmvuXLK.html

8. LAWS OF CRICKET ARE MUCH MORE ADAPTABLE
THAN CIVIL CODES
• It’s been 20 years since we changed cyberlaw significantly in Europe & Australia
• E-Commerce Directive 1999, Cybercrime Convention 2001, E-Privacy Directive 2002 (though GDPR 2016)
• Now changing finally – just as AI becomes available to consumers
• Digital Services Act 2022 (EU) Digital Markets Act 2022 (EU)
• Online Safety Act 2021 (Australia) and 2023 (UK)
• DRAFT Artificial Intelligence Act 2024 (EU)
(There were always contractual, competition, commercial, data secrecy and intellectual property rules)
Cricket rules in 2000 – no T20, no franchises, no HawkEye, not even 2 neutral umpires! No Elite referees

9. GENERATIVE AI,
ELECTION
DISINFORMATION
AND THE LAW

13. SPEECH
TO
TEXT?
CHATBOT
IS ANYTHING IN AI HYPE REALLY NEW?

14. AI
POWERED
SEARCH?

15. AI GUIDED CARS – NOT IN MELBOURNE OR ALIGARH!
• November 2023 – Bletchley, UK (Imitation Game etc).
• Speilberg’s first film – Duel 1971
• Will self-driving trucks or robotaxis ever arrive on public roads?
• Disastrous attempt to license in San Francisco – Waymo, Uber, Tesla…

16. DARTMOUTH – AI BEGINS 68 YEARS AGO…
• IEEE Spectrum
(2021)
• https://spectrum.ieee.org/d
artmouth-ai-workshop

17. CHAT GPT IS
NOWHERE
NEAR AI
• AI ends 2023?
• Sea of hype

18. GOOGLE OWNS CAPTUR,
LECUN IS ZUCKERBERG’S CHIEF SCIENTIST
• It’s not Elon doing most hyping

19. WHY DO POLITICIANS LISTEN?
• Hopeless US Techbros own our media –
• MuskX, Zuckerberg, Google/YouTube
• TikTok banned in India?

20. WHICH BRINGS US TO INDIA’S ELECTION
• Largest election in history?
• How many Indians use the Internet?
• Is Internet regulation (e.g.net neutrality )enforced?
• How will people receive election information?
• Coping with the ‘Crazy Uncle’ problem…

21. REGULATORY CONCERNS INCREASED ABOUT:
• Fake news, hate speech spread by bots, and
• their impact on fair elections and civil society.
• But these 'Great Hack' concerns are much older,
• going back to 2010 Trinidad and Ukraine (2011) elections.
As in the case of privacy regulation with GDPR,
• Europe led the way in willingness to legislate,
• Germany (2017 NetzDG Law) France (2018) legislated against disinformation

22. DEFINING DISINFORMATION (‘FAKE NEWS’)
• “False inaccurate or misleading information
• designed, presented and promoted to
• intentionally cause public harm or for profit”
• European Commission High Level Expert Group 2018
Distinguish disinformation from misinformation,
• which refers to unintentionally false or inaccurate information.

23. DISINFORMATION A RAPIDLY MOVING TARGET
• 2018 European Parliament study
• analysed 250 articles, papers and reports
• strengths and weaknesses of those focussed on AI disinformation
solutions on freedom of expression, media pluralism & democracy
• Agree with other experts: evidence of harm inconclusive in 2018
• 2016 US Presidential election/UK ‘Brexit’ referendum
• Note this report was pre-Muller (2018) and pre-fines in UK (2019-20)
• US Department of Justice and UK Parliamentary Committee

24. CHRIS MARSDEN, TRISHA MEYER, IAN BROWN
● Platform values and democratic elections:
● How can the law regulate digital disinformation?
Computer Law & Security Review, Volume 36, 2020, ISSN 0267-3649, https://doi.org/10.1016/j.clsr.2019.105373

25. 2018 EUROPEAN PARLIAMENT REPORT:
REGULATING DISINFORMATION WITH ARTIFICIAL INTELLIGENCE
• Presented in Strasbourg 13 December
• https://www.europarl.europa.eu/cmsdata/161725/STOA%20Panel%20meeting%2013-12-2018%20-%20Minutes.pdf
• 2 days after terrorists attack Xmas market
• Finally officially published 13 March 2019

26. NOTE: EU COMMISSIONER TO COMBAT
FOREIGN DISINFORMATION IS CZECH
• Prague Spring 1968 – she remembers
• Russian tanks occupying her country

27. WE STUDIED CAMBRIDGE ANALYTICA, RUSSIAN (AND
MANY OTHER ACTORS) HACKING OF ELECTIONS
• Wider issue of regulating disinformation and election cybersecurity
• Euronews (9 Jan 2019) How Can Europe Tackle Fake News in the Digital Age? 3 minutes' video
• https://www.euronews.com/2019/01/09/how-can-europe-tackle-fake-news-in-the-digital-age
• saves you reading 100 pages’ European Parliament report I co-authored.
• But you should read the 4-page regulatory annex –
• How to regulate AI for disinformation.
• Good luck employing anyone with human rights law qualifications in India
• for much less than $100 an hour...much less a dollar!

28. 2021: LEAVE.EU LOST THEIR CASE, LONG AFTER BREXIT
• Leave.EU and Eldon v Information Commissioner [2021] UKUT 26 (AAC) (8 February 2021)
• https://www.bailii.org/uk/cases/UKUT/AAC/2021/26.pdf
• UK Information Commissioner issued Leave.EU and Eldon with
• monetary penalty notices and assessment notices (and an enforcement notice in the case of Eldon)
• under Data Protection Acts 1998 and 2018.
• First-tier Tribunal dismissed all appeals – appeal to the Upper Tribunal concerned the scope of Reg 22 PECR,
• the criteria for making a MPN (`serious contravention' and knowledge of risk of breach),
• the relevance of the Commissioner's regulatory action policy (RAP),
• proportionality and the criteria for an assessment notice, and unfair process –
• All five appeals dismissed by Upper Tribunal.

29. COMMONWEALTH STUDY:
CYBERSECURITY & DISINFORMATION
● Brown, Ian, Chris Marsden, James Lee, Michael Veale [2020]
● Electoral Cybersecurity in the Commonwealth: A Good Practice Guide
● London: Commonwealth Secretariat, 162pp. at
● https://thecommonwealth.org/sites/default/files/inline/Commonwealth%20cybersecurity%20for%20elections%20guide.pdf
○ based on an in-depth questionnaire sent to all Commonwealth election management bodies;
○ research missions in Ghana, Pakistan, Trinidad and the UK; and
○ regional training workshops in Africa (Jo’burg), Asia-Pacific (Sydney) and Caribbean (Trinidad)
○ It is the chief outcome of the Strengthening Election Cybersecurity project that is part of the Commonwealth Cyber Capability Programme.
Implementation of the Commonwealth Cyber Declaration agreed by heads of government at their 2018 meeting in London.
○ The declaration commits “to a cyberspace that supports economic and social development and rights online; to build the foundations of an
effective national cybersecurity response; and to promote stability in cyberspace through international cooperation.’

30. LAUNCH FOR CWEALTH ELECTORAL CYBERSECURITY GUIDE
3 March 2020: technical systems, laws, policies,
● capabilities across the whole electoral cycle
● recommendations to national contexts
● to help professionals who run elections
Lead author Dr Ian Brown said:
○ “It’s really important electoral authorities build up their links with government agencies dealing with
cyber security, data protection, public procurement, to respond more effectively together.
○ “especially in the Caribbean and Pacific there are a number of small Commonwealth countries,
○ really helpful if electoral authorities can co-operate in terms of sharing training and learning,
○ thinking about collaborative procurement and sharing information about specific attacks on their
election infrastructures
○ because that will make the response of each country together much stronger.”

31. DID COMMONWEALTH MEMBERS ACT ON
RECOMMENDATIONS FOR CYBERSECURITY EXPERTISE?
● Kenya election declared 16 August 2022
● 4 out of 7 Electoral Commissioners refused to certify the incumbent ‘victory’
○ Commonwealth: problems “use of the Kenya Integrated Elections Management System
(KIEMS) kit, which is used to register and identify voters using biometrics”
https://thecommonwealth.org/news/kenya-elections-largely-peaceful-and-transparent-say-commonwealth-observers
● Official observers:
○ Commonwealth Observer Group –Bruce Golding, Former Prime Minister of Jamaica
○ EISA Election Observation Mission –Goodluck Ebele Jonathan, Former President of Nigeria
○ Joint AU-COMESA Election Mission –Dr. Ernest Bai Koroma, Former President of Sierra Leone
○ IGAD Election Observation Mission –Dr. Mulatu Teshome, Former President of Ethiopia
● Ethiopian People's Revolutionary Democratic Front – not elected, nominated
○ IRI/NDI Election Observation Mission –Joaquim Chissano, Former President of Mozambique
○ Carter Center Election Expert Mission – Ben Graham Jones, Team Leader
○ EU Election Observation Mission –Ivan Stefanec, Member of the European Parliament

32. SPECIFIC LEGAL POLICY OPTIONS:
THE CO-REGULATORY TRIANGLE

33. 2018: FIVE RULE OF LAW
RECOMMENDATIONS
1. Media literacy and user choice
2. Strong human review and appeal processes where
AI is used
3. Independent appeal and audit of platforms
4. Standardizing notice and appeal procedures
Creating a multistakeholder body for appeals
5. Transparency in AI disinformation techniques

34. Option and form Typology of regulation Implications/Notes
0 Status quo Corporate Social Responsibility,
single-company initiatives
Note that enforcement of General Data Protection Regulation and the
proposed revised ePrivacy Regulation, plus agreed text for new AVMS
Directive, would all continue and likely expand
1 Non-audited
self-regulation
Industry code of practice,
transparency reports, self-
reporting
Corporate agreement on principles for common technical solutions and
Santa Clara Principles
2 Audited self-
regulation
European Code of Practice of Sept
2018; Global Network Initiative
published audit reports
Open interoperable publicly available standard e.g. commonly
engineered/designed standard for content removal to which platforms
could certify compliance
3 Formal self-
regulator
Powers to expel non-performing
members, Dispute Resolution
ruling/arbitration on cases
Commonly engineered standard for content filtering or algorithmic
moderation. Requirement for members of self-regulatory body to conform
to standard or prove equivalence. Particular focus on content ‘Put Back’
metrics and efficiency/effectiveness of appeal process
4 Co-regulation Industry code approved by
Parliament or regulator(s) with
statutory powers to supplant
Government-approved technical standard – for filtering or other forms of
moderation. Examples from broadcast and advertising regulation
5 Statutory
regulation
Formal regulation - tribunal with
judicial review
National Regulatory Agencies – though note many overlapping powers
between agencies on e.g. freedom of expression, electoral advertising and

35. 2021: TEN RECOMMENDATIONS
1.Electoral management boards (EMBs) should not request Internet shutdowns
• not objectively assessed a national emergency and sanctioned by a superior court.
• injunction may be achieved with great speed, procedural legitimacy essential.
2.Governments should avoid shutdowns in response to disinformation concerns
• while ensuring false announcements are responded to
• where defamatory, fraudulent, or unjustifiably doubting official EMB results.
• such action may not appear disinterested or legitimate prior to a court decision.

36. CHRISTCHURCH CALL 2ND ANNIVERSARY, UNITED
STATES JOINED BRINGING THE TOTAL TO 55 NATIONS
• 'Christchurch Call' response signatories issued this message:
• "We will improve transparency panies on terrorist and violent extremist content, including Government information on
flagging and content removal requests; number and variety of companies providing transparency reporting.
• multi-stakeholder process to ensure that transparency reporting across Government and industry is responsive to the
concerns of civil society participants and informative in demonstrating progress on the Call’s commitments;
• We have agreed to design methods that can safely be used to build a better understanding of algorithmic outcomes.
• This will help us address the question of amplification and identify more effective intervention points".
• Algorithmic analysis is at the centre of the response.

37. “WE WILL BUILD UNDERSTANDING OF RECOMMENDATION
ALGORITHMS AND USER JOURNEYS”
• “including the role they may play in radicalisation or amplification of terrorist
• and violent extremist content;
• We have agreed to work together to design methods that can safely be
• used to build a better understanding of algorithmic outcomes.
• This will help us address the question of amplification and
• identify more effective intervention points"

38. ALGORITHMIC ANALYSIS IS AT THE CENTRE OF ANALYSIS
• Amplification?
• Should social media as default
• prevent live video from reaching a wide audience without prior approval?
• Does that remove the immediacy of e.g. YouTube?
• Isn’t that what broadcast rules are in place to do?
• 15 second delay for profanity/violence/banned speech

39. BUT FOR NON-ENGLISH LANGUAGE CONTENT….
• Almost non-existent moderation – and
• none at all on WhatsApp
• which is where ‘angry uncle’ content is
• more likely to be spread in family groups
• Brazil 2018 was bad…2022 worse. India 2024?
• https://blogs.lse.ac.uk/polis/2018/10/27/2018-brazil-elections-the-power-of-social-media-and-the-
threat-to-journalism/

40. DIGITAL SERVICES ACT NEW EU LEGISLATION: 2022,
ENFORCED FROM AUGUST 2023
• European Parliament approved the DSA along with the Digital Markets Act on 5 July 2022
• Published in the Official Journal of the European Union
• apply fifteen months after coming into force or on 1 January 2024.
• Very Large Online Platforms (VLOPs) and search engines will need to comply with their obligations
• 4 months after they have been designated as such by the EU Commission.

41. DSA IMPLEMENTED IN PART:
25 AUGUST 2023

42. DSA ALREADY BEING FLOUTED BY X?
• European Commission, Directorate-General for
Communications Networks, Content and Technology,
• Digital Services Act – Application of risk management
framework to Russian disinformation campaigns,
• Publications Office of European Union, 2023
https://data.europa.eu/doi/10.2759/764631

43. HOW AUSTRALIA COPED WITH
DISINFORMATION IN THE 2022 ELECTION
• Tom Rogers (Australian Election Commissioner) Official agreement with social media
• ACMA (2023) 2nd report on the Code of Practice on Disinformation
• https://www.acma.gov.au/sites/default/files/2023-
07/Digital%20platforms%20efforts%20under%20Code%20of%20Practice%20on%20Disinformation%20and%20Misinformation.pdf
• eSafety Commissioner has a guide on disinformation online.
• Marsden, C. and T. Meyer [2019] How can the law regulate removal of fake news?
• https://www.scl.org/articles/10425-how-can-the-law-regulate-removal-of-fake-news

44. 2022 AUSTRALIAN ELECTION WAS FAIR?
• Interference with the Trump (2016) election
• Muller Report to Department of Justice (2019) heavily redacted by Trump’s Attorney general Bill Barr – we’re
not sure what was in it
• Report On The Investigation Into Russian Interference In The 2016 Presidential Election
• 2020 Report more extensive SELECT COMMITTEE ON INTELLIGENCE ON RUSSIAN ACTIVE MEASURES
CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION
• VOLUME 5: COUNTERINTELLIGENCE THREATS AND VULNERABILITIES
• https://www.intelligence.senate.gov/sites/default/files/documents/report_volume5.pdf
• 2016 Brexit referendum in the UK
• No Commons ‘pandemic of disinformation inquiry – left to Lord Puttnam in Lords
• https://committees.parliament.uk/committee/407/democracy-and-digital-technologies-committee/

45. CO-REGULATION OF AUSTRALIAN CODE OF PRACTICE
ON DISINFORMATION
• 2021 voluntary Code on Disinformation
• https://www.oecd.org/stories/dis-misinformation-hub/voluntary-code-of-practice-on-misinformation-and-disinformation-1fe0be59/
• 2024 amended law to make ACMA co-regulator of the Code?
• Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023
• Department of Infrastructure, Transport, Regional Development, Communications and the Arts
• Consultation June-August. Bill in autumn?
• Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023—Guidance
Note (infrastructure.gov.au)

46. OFFICE OF THE E-SAFETY COMMISSIONER ESTABLISHED 2015
• to promote safety for children only
• Problem grew during the pandemic
• Affects all children
• sextortion of boys growing problem

47. ONLINE SAFETY ACT 2021 (CTH) TO COVER ADULTS:
• promoting online safety for all Australians
• complaints system for cyber bullying material targeted at an Australian child [s 30]
• complaints system for cyber-abuse material targeted at an Australian adult (that meets the threshold of
serious harm) [s 36]
• complaints and objections system for non-consensual sharing of intimate images [s 32]
• online content scheme (for illegal and restricted online content, including a complaints system) [ss 38-40]
• requiring internet service providers to block access to material showing abhorrent violent conduct (e.g.
terrorist acts) [s 39]
• issue civil penalties, enforceable undertakings, injunctions for breaches of the Act [Part 10, OSA 2021]

48. E-SAFETY COMMISSIONER CAN APPLY TO FEDERAL COURT
• person may be ordered to cease providing a
social media service
• if civil penalty provisions of the Act continue
to be breached,
• continued operation of the social media
service represents a significant community
safety risk [s.156 OSA 2021]

49. S.34 DSA COMPARABLE TO S.156 ONLINE SAFETY ACT?
• When does content or conduct cross the threshold,
• resulting in an
• “actual or foreseeable negative effect”
• severe enough to be considered systemic
• in relation to the risk factors specified in DSA?

50. HOPE YOUR ELECTION IS FREE, FAIR AND TRANSPARENT!
• Next major election: Pakistan (8 February)
• https://www.aljazeera.com/news/2024/1/23/pakistan-ex-pms-party-loses-
election-symbol-will-it-hurt-its-prospects
• Indonesia (14 February)
• Indonesia is one of the world’s largest democracies, but it’s weaponising
defamation laws to smother dissent (theconversation.com)
• Russia (15-17 March)
• India (April/May)
• European Union (June)
• United States (November)
• UK and Australia must hold elections by 2025