By Joan Barata
Voting manipulation through social media platforms. Illegal campaign financing on TikTok. Cyber-attacks. Suspected Russian interference. The circumstances around Romania’s troubled December presidential election bear all the hallmarks of a modern political thriller. But the circumstances around the election and its annulment also present an opportunity to consider the application of Europe’s Digital Services Act (DSA) and its limitations.
Background
The recent decision by the Constitutional Court of Romania (herein after CCR) to annul that country’s recent Presidential election sent shockwaves across Europe. The CCR Judgment 32/6 December 2024 annulled the election, ordered the electoral process to resume, and extended the mandate of the incumbent president until new elections are held and a new president’s mandate is validated. Even though this is not the first time an election process was annulled or postponed in Europe, the main reasons presented by the Court had a serious impact beyond Romania’s borders and the Eastern European region.
The CCR found, in particular, that “the electoral process was marred (…) by multiple irregularities and violations of electoral law that distorted the free and fair nature of the vote cast of citizens and the equality of chances of the electoral candidates, affected the transparent and fair nature of the electoral campaign and disregarded the legal regulations on its financing” (paragraph 5). In the Court’s view, such irregularities in the electoral campaign created a blatant inequality between a candidate who manipulated digital technologies and the other candidates participating in the electoral process. Thus, the significant exposure of one candidate led to a directly proportional reduction in the online media exposure of the other candidates during the electoral process.
It is worth noting that the “affected” candidate, Călin Georgescu, requested interim measures from the European Court of Human Rights, particularly that the Constitutional Court’s decision be suspended and the electoral process be resumed. The Strasbourg Court dismissed the request for interim measures as being outside the scope of Article 39 of the Rules of the Court since, per its well-established practice, Mr. Georgescu’s claim did not concern irreparable harm.
The Romanian case clearly resonated with the European Union institutions regarding the misuse of social media platforms. On 17 December 2024, the European Commission decided to open formal proceedings against TikTok under the Digital Services Act (DSA). The Commission requested information from TikTok to determine what actions the platform took to reduce potential algorithmic bias in the election. The proceedings will focus “on management of risks to elections or civic discourse” linked to TikTok’s recommender systems, notably the risks “linked to the coordinated inauthentic manipulation or automated exploitation of the service,” as well as TikTok’s policies on political advertisements and paid-for political content.
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Joan Barata is a Senior Legal Fellow for The Future of Free Speech. He works on freedom of expression, media regulation, and intermediary liability issues.