However, the Council also found that, “given the consequences that proceedings may have the effect of stopping the spread of certain information content, the allegations or accusations in question can only justify such a measure if the incorrect or misleading nature is apparent, without infringing on the freedom of expression and communication. Likewise, for the risk of having an effect on the sincerity of elections, which must also be apparent.” 43 In light of the legislation’s limited scope and its strict definition of what constitutes manipulated information, the Council upheld the law as constitutional. In Switzerland, the legal framework does not provide for strict regulations relating to disinformation, but general principles and a strong body of jurisprudence guide election judges in their application of the laws. 44 For instance, the judges of the Federal Supreme Court have adopted a narrow interpretation of disinformation and determined that a court’s duty to intervene in disinformation cases can only happen when the influence of private actors seriously hinders or prevents the voters’ process of forming an opinion (see text box). Such conduct can lead to the annulment of a vote. 45 Case law led to the use of the following test, relying on four criteria: “1) Erroneous information Guidance for Swiss Election Judges “The case-law has made it clear that only inaccurate and essential facts, which are available to the administration alone and which are not called into question by public debate, are capable of distorting the free formation of the will of the electorate. Information that may be erroneous, but which is the subject of the public discussion before the vote, is not enough. Similarly, imprecise estimates by the administration, but qualified as such, do not distort the democratic debate.” —Judge François Chaix, of the Swiss Federal Supreme Court must first be based on facts (objective). 2) The facts must then relate to an important circumstance of such a nature as to seriously mislead the elector. 3) The disclosure of erroneous facts must take place at a late stage of the campaign, at a time when rectification would no longer have any effect on the voter. 4) Finally, the judge must satisfy himself that the misleading influence exerted on the electorate is without doubt or at least appears highly probable.” 46 These four criteria echo the strict criteria adopted in the French law on manipulation of information and the rulings of other countries preventing unreasonable restrictions of freedom of expression. Issue 2: Provision of Remedies A. Rapid or Summary Judgments Can Be Very Effective Other cases demonstrate how bad actors can sow disinformation via frivolous claims meant to cast doubt on the integrity of the election process itself. Much like the facts around the United States’ Dominion case, for instance, Kenya’s presidential election was highly contested and was conducted in an environment of widespread disinformation attacks. When presenting lessons learned from Kenya at a global election event in July 2023, for Id. at para. 23. Switzerland has a strong tradition of direct democracy as, in addition to regular elections, the Federation also holds regular referenda or citizen initiatives (votation), where citizens make decisions on governance. 45 Federal Supreme Court, judgment 1C_665/2018 of January 16, 2019 at 30, p. 5.1. 43 44 46 Federal Supreme Court, judgment 1C_662/2019 of June 10, 2020. In adopting this test, the judge relies on the standard of evidence, which is below the criminal standard but above a balance of probabilities. 13