Summary of the Romanian Constitutional Court Decision Annulling The Presidential Elections Invoking Social Media Manipulation

The Romanian Constitutional Court published a brief Decision late last night for its unprecedented act of invalidating the elections for the President of Romania in the middle of the electoral process (in between the first and second rounds of elections), following the equally unprecedented declassification of Reports from the secret services disclosing a foreign state's (obviously Russia, but unnamed in the Reports) influence campaign to boost an ultranationalist, anti-NATO, candidate on social media through coordinated action on TikTok with support from networks on Telegram and Discord. (More here on the declassified docs in English, or here for detailed information in Romanian from the declassified docs, and here for a Statement of the US State Department on the Decision).

Here, I am summarizing this Decision highlighting the bits which refer to AI, social media, disinformation and election integrity, because they are interesting to this community, without commenting on the legality of a self-motion Decision so late in the process and after validating a recount of the votes just days ago, or my personal thoughts and feelings about all of this.?

DISCLAIMER: I am writing this strictly from a personal point of view and in no official work capacity whatsoever. I also write it out of respect for my parents who went on the streets in December 1989 in Romania and their friends who died during the Revolution to fight for their children's rights to live free, in a democratic society. To me, democracy is sacred. I never take it for granted, because I was not born in it.

The main arguments of the Court revolve around corrupting free and fair elections in a democracy through manipulation, disinformation and lack of transparency overall on social media platforms and with the help of AI, including with regard to funding of electoral advertising online, and are less (if at all) concerned with meddling of a foreign country in the electoral process.?

The quotes are my own translation, and they will slightly vary from automated generated translation, but they provide a more accurate legal interpretation.

The Court invalidated the elections following the publication of the Reports and finding a breach of “the essential principles of free democratic elections” through several "converging elements" (para 5). Essentially, the key aspects of the Reports that most seriously concerned the Court are those related to “the manipulation of the votes and the distorting of equal opportunities of electoral competitors through the use of digital technology and artificial intelligence in the electoral campaign in a non-transparent way and by breaching electoral law, as well as funding the electoral campaign through undeclared sources, including online” (para 10).?

According to the Court, “the election of the President was vitiated throughout and during the entirety of all its phases by multiple irregularities and breaches of the electoral law, which contorted the free and fair nature of the vote expressed by citizens, as well as the equal opportunity of electoral competitors, affected the transparent and fair nature of the electoral campaign and breached the legal requirements for electoral funding.” (para 5).

Specifically, the Court found that the State “has a positive obligation to prevent any unjustified interference in the electoral process” and “a duty of neutrality, which includes the obligation to strengthen voter awareness regarding the use of digital technologies within elections, in particular by providing adequate information and support.” The Court further found that “the state must be resilient in the face of challenges and risks generated by organized disinformation campaigns that affect the integrity of electoral processes” (para 10). Curiously, for this latter part, the Decision refers to a document adopted the day of the Decision, December 6, 2024, by the Venice Commission - “the interpretative declaration to the Code of good practice in electoral matters on digital technologies and artificial intelligence”, which is not yet available to the public.?

The Court further explained that “the freedom of voters to form their opinion includes their right to be correctly informed before making a decision. Specifically, the freedom of voters to form an opinion includes the right to have access to accurate information about candidates and about the electoral process from all sources, including online, as well as the protection against unjustified influence on their voting behavior through unlawful and disproportionate acts or facts” (para 13).?

The Court referred to provisions of EU Regulation 2024/900 on the transparency and targeting of political advertising and specifically called out the fact that “political advertising can often convert into a “vector of disinformation, in particular where the advertising does not disclose its political nature, comes from sponsors outside of the Union or is subject to targeting techniques or ad-delivery techniques” (para 13).

• The lack of disclosure of funding for political ads supporting the ultra-nationalist candidate on TikTok was officially submitted by Romanian authorities on November 21 to the platform with a request for removing that content, following DSA procedure, but which was not acted upon by the platform despite communication in writing that it removed access to the content from within Romania, according to the Reports (see here the second bulletpoint).?

In this context, the Court makes the only reference in the Decision to the “interference of state and non-state actors in propaganda campaigns and electoral disinformation”, which “must be eliminated” (para 13).

The Court refers to “abusive exploitation of algorithms” on social media by a candidate, noting that “the nature of free elections was breached by the disinformation of voters through an electoral campaign which saw one of the candidates benefiting from an aggressive promotion, by evading national election law and by abusive exploitation of algorithms on social media platforms. (…) Additionally, the candidate benefited from a preferential treatment on social media, which resulted in the distortion of the manifestation of voter will” (para 14). Information included in the Reports highlights that the candidates who lawfully labeled their content as “political” or “electoral” and disclosed their funding were filtered out from amplification algorithms.?

In this sense, the Court notes that “equal opportunity must also be evaluated through the electoral behavior of competitors when using social networks, new technologies, artificial intelligence systems and campaign funding” (para 15). Thus, it found that “the irregularities from the electoral campaign had consequences over the competitors, because they created an obvious difference of treatment between the candidate who manipulated digital technologies and the other candidates participating in the elections process” (para 15).

This is why the Court concludes that “the use of digital technologies and artificial intelligence by candidates, political parties and their supporters must be transparent to guarantee the integrity and impartiality of elections. In the absence of such transparency, voters are hindered to form an opinion about candidates and electoral choices or they are deceived as to the identity of a candidate and even the fact that the person sharing content is running to be elected” (para 16).?

• Information from the Reports, as well as media interviews with TikTok influencers after the elections, showed that posts supporting the candidate from paid influencers that went viral were not labeled as political ads, they were promoted as lifestyle or entertainment content and were not labeled as “paid advertising”.?

“Electoral online publicity must always be identified as such and be transparent, both with regard to the identity of the sponsor, as well as with regard to the technical means of dissemination. Social media platforms should be under an obligation to continuously disclose information regarding political advertising and electoral sponsors” (para 17), the Court noted. Finally, the Court also included arguments about the candidate breaching the law when officially declaring 0 (zero) budget spent on the electoral campaign, when the Reports confirmed information from TikTok that political content promoting the candidate was paid for.?

History will tell if this Decision, two days before the second round of elections was incredibly brave or incredibly harmful.?The new elections date is not yet set and is expected to be scheduled at least a couple of months away.