Cyber electoral interference through influence campaigns - state's act with impunity or responsibility?

Abstract

The cyber domain has become a convenient avenue for foreign states to interfere in other state’s elections by influencing the hearts and minds of voters. However, rather than pursuing legal action, injured states have chosen the public attribution of influence campaigns, calling out perpetrators of malicious cyber activities. As addressing the cyber electoral interference through influence campaigns in the international judicial forum results in impartial attribution and possibly legal remedies for the injured state, the research paper imposes the question – to what extent can cyber operations of influence campaigns constitute an Internationally Wrongful Act under the Draft articles on Responsibility of States for Internationally Wrongful Acts? The paper establishes the typology of cyber electoral interference activities encompassing influence campaigns, discusses the appropriate standard of proof essential to prove the legal claim, and explores the “attribution” and “breach of international obligation” elements of the Internationally Wrongful Act concerning the cyber operations of influence campaigns. The paper finds that currently, cyber influence campaigns are not attributable to the interfering state under the existing control tests. However, new control tests may emerge, as cyber influence campaigns already constitute a breach of international obligations of which injured states presumably would want to hold interfering states accountable.