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Remembering and forgetting.

“The hype has given way to skepticism.”

Interview: Urs Hafner

On social media, lies, half-truths and accusations spread like wildfire. That means it poses legal challenges for a democratic society, says Nadja Braun Binder, Professor of Public Law at the University of Basel.

Portrait of Nadja Braun Binder
Prof. Dr. Nadja Braun Binder. (Photo: Oliver Hochstrasser)

UNI NOVA: Professor Braun Binder, this March at the ballot box, the Swiss public roundly defeated the proposed measure to introduce e-IDs, or electronic identification. Were you surprised by this decision?

NADJA BRAUN BINDER: I was expecting this question, and I hate to disappoint you, but as a public law specialist, I have to say that no, I was not. Every vote ends with a “yes” or a “no.”

UNI NOVA: Well then, let me ask the question to you as a private citizen ...

BRAUN BINDER: Even then, I’m not particularly surprised. Twenty years ago, there was great hype in Switzerland about this new concept of digital democracy. Back then, the focus was on introducing “e-voting” with electronic elections and voting. Geneva, Zurich and Neuchâtel launched pilot projects, and in the end, some 15 cantons got involved. The legal foundation for the process is now clarified, but it hasn’t yet been implemented in any substantial way. We’re still voting by mail and putting pen to paper to sign referendums or initiatives.

UNI NOVA: Why wasn’t e-voting successful?

BRAUN BINDER: Due to the technical challenges and the difficulty in testing the electronic voting systems for conformity. Both aspects were underestimated. When it comes to our democracy, we would be putting public trust at stake, so there is no room for error. Over the past few years, the media have become increasingly critical of these changes. Meanwhile, the hype has given way to skepticism, and that was a contributing factor.

UNI NOVA: Does this skepticism extend to the e-ID, too?

BRAUN BINDER: I don’t think so. Even opponents of the solution in question support the general idea of an e-ID, but here again, the implementation process remains controversial. It’s clear that a majority of voters do not support the adoption of a private commercial solution, but the e-ID itself is on the horizon. The canton of Schaffhausen is already offering one. On top of that, at the beginning of the year, their cantonal council approved the proposal to introduce collecting electronic signatures for initiatives and referendums. The e-ID seems to have paved the way for digital signature collecting. Schaffhausen could become a pioneer for Switzerland. Federalism often tends to promote provincial attitudes and disputes between cantons, but it can also spur innovation because of the freedom it grants the individual cantons.

UNI NOVA: Would you call yourself a proponent of digital democracy?

BRAUN BINDER: I’m afraid that’s the wrong question. As a legal scholar, I neither support nor oppose measures such as e-voting.

UNI NOVA: So, you draw a strict line in the sand between your work as a scholar and your personal opinions. But don’t your political persuasions inevitably have an impact on your research?

BRAUN BINDER: Of course, I have an opinion on the topics I study, but it’s not the aim of my research to take a stand on a particular issue. Instead, I focus on the legal considerations: For me, the question is whether our democracy will be able to safeguard voting and electoral freedoms even in the era of social media and fake news or rather what legal instruments need to be put in place to protect those freedoms. The government has to guarantee that voters are able to form their own, independent opinions. They shouldn’t be influenced by illegal practices. When false information makes public discourse impossible, the authorities are obliged to intervene. For Switzerland, which has a long tradition of holding referendums with a significant impact on our national political apparatus, it is crucial for the authorities to uphold their responsibilities to provide voters with the information they need and intervene when necessary.

UNI NOVA: So, the state is obligated to censor Facebook, for example, if a user posts false claims about the number of women who wear burqas in Switzerland?

BRAUN BINDER: The state isn’t licensed to simply curb free speech as it is in China. Switzerland’s voting and electoral freedoms, together with our fundamental rights on communication (such as freedom of speech etc.) are designed to protect both democracy as a whole and private citizens individually. Of course, individuals aren’t permitted to make criminal claims or infringe on the personal rights of others, but in the context of a political debate, they are allowed to simplify or exaggerate their opinions, to express those opinions anonymously and even to lie.

UNI NOVA: Where do we draw the line between the legal expression of an opinion and infringement on electoral freedoms?

BRAUN BINDER: That is the question we have to address when it comes to social media. Up to now, the law tended to draw that line at the point where false and misleading information was presented so late in the course of a political debate that voters no longer had enough time to garner a factual, reliable understanding of the issues. In 2009, the Federal Supreme Court of Switzerland decided that an erroneous document, which first surfaced during the municipal assembly, hindered the ability of the voters to form balanced opinions and consequently impinged upon their electoral freedom. The decision of the municipal assembly in question was repealed.

UNI NOVA: Of course, social media has its own concept of timeliness. An old post can surface out of nowhere and unleash a whole new wave that reaches enormous numbers of people.

BRAUN BINDER: That’s very true. It’s why we have to reconsider the precedent that the misinformation in question must be shared close to the date of an election. Even more crucially, in my opinion, is the issue of whether, after being exposed to misinformation, voters are even able to form an undistorted opinion when presented with information from other sources. If not, in some cases, the court may be obligated to annul the results of an election. This kind of treatment could end up being preventative and help stop the spread of highly misleading information in the first place.

UNI NOVA: We’ve been living with the Internet for almost thirty years now, but political lies are nothing new. Before, they were simply disseminated through traditional partisan media.

BRAUN BINDER: Correct. That’s why lawmakers introduced the partial ban on political advertising in radio and television, which has been in place for some time now, to prevent wealthy groups from influencing the democratic decision-making process. Furthermore, the law penalizes defamatory, discriminatory and slanderous claims as well as hate speech. The difference with the Internet is that social media now provides people with an unprecedented platform for disseminating lies and half-truths – traditional media never had that kind of reach. On top of that, social media hosts both private users and users acting on behalf of state agencies. The last US president used Twitter to bombard the world with innumerable lies.

UNI NOVA: Is democracy taking place on social media now?

BRAUN BINDER: We’re not in China, and we’re not in the United States, either. Most people still consider the explanatory pamphlet published by the Federal Council as one of their most valued sources of information; there are very few people who get all of their information online. But that’s an area that needs further research.

UNI NOVA: You’re on Twitter, too. Have you ever experienced hate speech?

BRAUN BINDER: No, fortunately not. It is distressing to see how quickly a throwaway statement can turn into a scandal and a justification for bullying – and how much hate is brewing away online.

UNI NOVA: Do we need a new law to regulate the contents of social media?

BRAUN BINDER: When it comes to safe[1]guarding our democratic processes and mechanisms prior to elections and referendums, I don’t see the need for additional regulation at present. Our systems are working just fine and are subject to legal protections. In my opinion, it’s more proportionate for us to apply existing legal provisions within the margin of appreciation that is there rather than to introduce general prohibitions, for example a ban on anonymous posting. Anonymity provides members of marginalized groups with the freedom to share their opinions in electoral debates without having to fear repressive retaliation.

UNI NOVA: Does social media pose a threat to democracy as an institution, or does it open up new opportunities?

BRAUN BINDER: Both! Democracy is not a rigid concept; it’s designed to change. When society changes the way it communicates, democracy changes with it. That can be an opportunity. For example, social media gives groups of people without significant financial resources a platform where they can be heard. And paradoxically, the Internet not only lends itself to the dissemination of false information – it’s also very well suited for correcting false statements. It is a space for lively debates and offers endless information. But these opportunities need to be accompanied by the appropriate legal measures. Digital development is an unstoppable force, just like the introduction of women’s suffrage, thankfully!

UNI NOVA: Of course, Switzerland was very late to implement that particular change. Do you think we’re struggling with the same inertia when it comes to digital democracy?

BRAUN BINDER: I don’t think so. We were ahead of the game when it came to e-voting, and now we’re well on our way to deciding how best to handle the impact of social media on political processes prior to elections or referendums. I’m heartened by the fact that we aren’t being hasty in our decisions to impose regulations; we’re making sure that any measures are sound and well-founded. That’s consistent with our tradition of direct democracy. We are accustomed to the idea that we have to take a nuanced approach to problems.

UNI NOVA: Sometimes the Swiss public isn’t very amenable to nuance; when it comes to questions such as the ban on minarets and head scarves, those decisions seem rather irrational indeed.

BRAUN BINDER: Personally, I was very discouraged by the results of those referendums, but here, too, it’s important to differentiate between two separate issues: the commitment to the democratic process itself and the results of that process. Of course, every system can be improved. For example, we could certainly discuss the way we currently incorporate the majority vote of the cantons in the referendum process. However, if a particular mechanism is sanctioned by the constitution, we have to live with the decision, whether we like it or not. And in retrospect, some decisions take on new meanings that would have been impossible to see at the time the referendum was passed. I think it’s good that we have popular initiatives to serve as a pressure valve in our democracy.

UNI NOVA: Is social media a pressure valve, too?

BRAUN BINDER: Absolutely. Any means of sharing opinions publicly constitutes a type of pressure valve.

UNI NOVA: Social media also poses a challenge to democracy. Who was the first to understand this fact – was it the academics or the politicians?

BRAUN BINDER: Parliament saw a number of early proposals on the topic of electronic participation and digital democracy. The political establishment is sensitive to the way social developments can affect democratic processes. At the same time, since the very birth of the Internet, researchers have been discussing its potential for democracy.

UNI NOVA: What first piqued your interest in the subject?

BRAUN BINDER: This is an issue I’ve been studying for twenty years, since I started writing my licentiate thesis on e-voting at the University of Bern. That paper was likely the first legal treatment of the topic in Switzerland. It brought me into contact with the Federal Chancellery, where I started my first job after I finished my studies. My dissertation focused on secret ballots and e-voting, and I did postdoctoral research in Germany, where I studied digitalization in state and administrative agencies.

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