Introduction Foreign interference in elections is a long-standing problem plaguing democracies.43 The Cold War saw plentiful examples of meddling by foreign states in elections.44 The problem of foreign interference in elections has taken on a new urgency with the growth of the internet and the widespread use of social media, which facilitate global connections both beneficial and malign.45 Both Canada and Germany have taken action in recent years to address foreign interference in its contemporary form in their domestic elections. The two countries have, however, taken different approaches.
The Canadian Constitution establishes the country as a federal parliamentary democracy. Unlike the German Constitution, the Canadian Constitution specifies little about the operation of elections and political parties. The main constitutional provision relevant for the regulation of foreign interference in elections is section 2(b) of the Canadian Charter of Rights and Freedoms.46 Section 2(b) protects freedom of expression, including political expression. It does so for “everyone,” including foreign speakers, and also protects the freedom of listeners. The Supreme Court of Canada has interpreted section 2(b) very broadly so that it applies even to expression that has little value, such as deliberately told lies. Given this broad constitutional protection, election law in Canada has only attempted to address misinformation and disinformation at the margins.
Evaluating Applicable Canadian and German Domestic Law to Address the Challenges of Foreign Interference The actions taken by each democracy have been structured and limited by their respective constitutions,Pal Michael which protect freedom of political speech. In Canada, the approach has been to prohibit the most obvious forms of disinformation regarding the conduct of elections, to tighten up campaign finance law to limit opportunities for financial involvement by foreign actors, and to introduce some modest regulation of the social media platforms that facilitate communication from foreign actors directly to Canadian voters. The German approach is mainly centred around the NetzDG law, which, most notably, implements a mandatory takedown regime for some illegal content distributed online. Both the Canadian and German approaches to the problem of foreign interference are at best partial. They are first steps, rather than panaceas. Both countries are important examples for other democracies to draw on in the ever-evolving search for how best to address the contemporary manifestation of the old problem of foreign interference.
Canada The Canadian Constitution 43 For the long history of election interference, see Levin (2020). 44 Ibid., 152–67. 45 See the three reports from CSE (2017; 2019; 2021).
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46 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
