Infecting the Mind: Establishing Responsibility for Transboundary Disinformation

Abstract

This article examines the legal issues concerning the establishment of responsibility for an internationally wrongful act in the context of transboundary disinformation. In light of the unprecedented surge of potentially dangerous health disinformation throughout the COVID-19 pandemic, there is growing consensus among academics and states that influence campaigns that utilize false or misleading information may qualify as a violation of international law, amounting to a prohibited coercive intervention, a breach of the target state’s territorial inviolability or independence of state powers or, in extreme cases, even a use of force. However, the aspects of attributing the dissemination of disinformation to a state and of demonstrating a causal nexus between disinformation and effect that are necessary for international responsibility to arise have not been sufficiently addressed in the literature. This article analyses the challenges that contemporary forms of digital disinformation create for proving attribution pursuant to the customary rules of state responsibility as well as the issue of causation. In doing so, it investigates the content of the primary rules for clues pertaining to the necessary causal nexus and assesses different standards of causation employed in international and domestic law.