Disinformation as a Democratic Collective Action Problem or Why a Legal Solution Is Warranted

Abstract

AbstractIn this chapter we explore how false election information violates democratic values; in other words, we examine the extent to which and the manner in which false election information impugns the legitimacy of Australian elections, and in particular, the democratic legitimacy criteria of ‘effective participation’ and ‘enlightened understanding’. These criteria are central pillars of the free speech condition that enables any authentic democracy to function properly. Because there are few incentives to desist from polluting the election information environment and also because of the significant social costs it entails, the problem should be approached as a collective action problem rather than as an issue of individualised rights. This distinction is consistent with jurisprudence on the freedom of political communication implied in the Australian Constitution and endorsed in multiple judgements, as we show in detail in Chapter 5. We conclude this chapter by arguing that compulsory voting places an extra duty on the Australian state to ensure that voting takes place in a relatively clean information environment.