From Negation to Function: Reimagining ECHR Safeguards Against Disinformation After the Bradshaw Judgment

As contemporary democracies face an unprecedented crisis of epistemic integrity, the traditional legal toolkit of militant democracy is under strain. While disinformation campaigns increasingly target the foundational values of the European Convention on Human Rights (ECHR) – such as the rule of law and social cohesion – the European Court of Human Rights (ECtHR) has historically lacked a settled doctrine for addressing speech that seeks to “destroy” democracy without necessarily inciting immediate violence. This paper critically evaluates two competing constitutional pathways within the ECHR framework to counter systemic disinformation. First, it reassesses the Article 17 “Abuse of Rights” clause. Traditionally reserved for hate speech and totalitarian ideologies, Article 17 serves as a mechanism of rights negation. The paper examines whether the systemic intent of digital disinformation – to erode the democratic fabric – justifies this extreme “constitutional shield” or whether such a broad deprivation of protection risks an irreversible chilling effect on political discourse. Second, the paper analyzes the emerging shift toward Article 3 of Protocol No. 1 (the right to free elections) as a more promising institutional safeguard. This analysis is grounded in the landmark judgment of Bradshaw and others v. United Kingdom (2025). In Bradshaw, the Court acknowledged for the first time that state inaction against foreign disinformation could, in principle, violate the positive obligation to guarantee the “free expression of the opinion of the people.” This effectively operationalizes a procedural self-defensive democracy, shifting the judicial inquiry from punishing the speaker, excluding him from a debate (Article 17), to protecting the integrity of the electoral ecosystem (Article 3 Protocol No. 1). By contrasting the “guillotine” of Article 17 with the “procedural shield” of Article 3 P1, the presentation addresses the core question of suggested Panel 5 of this section: how to redesign constitutional safeguards when formal guarantees fail. It concludes that the Bradshaw precedent offers a novel model for resilience – one that defends democracy’s processes rather than policing its content.