OSCE Supplementary Human Dimension Meeting (SHDM) II on Freedom of Expression, Media and Information
22 – 23 June 2020
Freedom of expression, media independence and factual reporting are needed now more than ever. It was thanks in part to the bravery of whistleblowers like Li Wenliang who – acting in defiance of China’s censorship laws – first alerted the public to the dangers of Covid-19 and enabled governments to take early preventative measures. In the face of a catastrophic global pandemic, freedom of expression can save lives.
Nonetheless, under cover of the pandemic, numerous governments in the OSCE region have taken the opposite approach. Rather than encouraging transparency, they have cracked down on freedom of the press; in many cases imposing harsh penalties for those who dare to defy these censorship laws.
While there may be a legitimate public health interest in combating dangerous misinformation about the virus, any restriction on the right to freedom of expression needs to pass the test of necessity, legality and proportionality. Many governments in the OSCE region have too readily ignored these essential criteria in passing so-called misinformation laws and have instead used them to attack, arrest and detain their citizens, particularly journalists, political activists and members of the medical profession. Other authoritarian governments seem more concerned with consolidating their own grip on power. Their aim is to tightly control the public narrative on their response to the virus, and in doing so they act under the false premise that revealing any government misstep is a threat to public order and national security. However, resorting to the violation of human rights as a means of enforcing public order is not permissible under international law, and in practice is likely only to exacerbate confusion, panic and disorder.
Examples from the OSCE region
Broadly formulated laws purporting to combat ‘fake news’ and misinformation have proliferated in the OSCE region in the wake of the virus. In March, Russia passed legislation imposing fines of up to €23,000 and five years in prison for anyone who spreads “false information” about Covid-19. Journalists, bloggers and health workers have already been charged under the law for speaking out about the lack of PPE and the shortage of ventilators. Together with the passage of a law in March 2019 criminalising ‘fake news’ and ‘insulting the State’, the space for freedom of expression and information in Russia is shrinking to a vanishing point. In Hungary, emergency legislation set a penalty of 5 years imprisonment for spreading false information about the outbreak, and by May proceedings have been initiated against 85 individuals. An emergency decree in Romania gives authorities the power to remove websites that spread “fake news” about the virus, with no opportunity to appeal. In Bosnia and Herzegovina, a new decree has stipulated fines for individuals that spread ‘panic and fake news’. The first person to be fined was a doctor who posted on social media about a lack of ventilators and intensive care beds.
The government of Azerbaijan has abused its Covid-19 emergency measures to arrest individuals who criticized the government’s response to the pandemic, and has sentenced at least 6 activists and pro-opposition journalists to detention since March. In Kazakhstan, authorities have hired private firms to monitor social media posts that spread disinformation or that could create a “threat” to sociopolitical stability, and has prosecuted some of its own critics. In Armenia, journalists reporting on Covid-19 are only permitted to reference official sources. In Turkey, journalists have been arrested and charged for “sowing panic and fear” after publishing information about the infection rate in their region.
Recommendations on strategies for dealing with misinformation
The use of criminal law is not an appropriate tool to fight rumours and misinformation. People are fearful in the present climate of uncertainty, and in democratic societies a certain degree of rumour about the virus should be expected and tolerated. For the most part, these rumours do not cause any harm. For those rumours that do present a genuine danger to public health, such as the touting of fake medicines as cures for the virus, existing fraud or consumer protection laws will usually be sufficient to deal with them.
As Dr. Li Wenliang told journalists before his death, “a healthy society should not have just one voice”. Indeed, public health suffers when States shut down legitimate discourse and criminalise criticism from its own citizens. Repressive policies only create more fear and distrust in government institutions, which make it less likely that their official health guidelines will be adhered to.
As recently emphasised by several UN human rights experts, the best strategy to prevent the spread of ‘fake news’ and disinformation is to strengthen trust in the State. Building trustworthiness in government institutions will enable governments to continue to act as the primary source of information on Covid-19, and they should uphold this bond of trust by providing clear public messaging and reliable information to all members of the population. Instead of shutting down ‘fake news’, governments should endeavour to actively engage with and challenge dangerous lies and rumours about the virus. Adopting such a direct and transparent strategy will ensure that disinformation does not circulate through informal channels.
Punitive misinformation laws do not merely deprive the speaker of their right of freedom of expression, but deprive the wider populace of their autonomy and their capacity to develop informed opinions and to act according to those opinions. Only by upholding an environment free from punitive censorship laws are individuals empowered to think critically and practice safe self-governance in a manner consistent with public health.
We partially echo the recent recommendations of the report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression when we recommend that each OSCE State should:
(i) Be transparent and provide truthful information to its citizens about the threat of the virus in a way that enables individuals to learn about the public health situation and make informed decisions on steps to protect themselves, their families and their communities;
(ii) Refrain from interfering with freedom of expression and allow the independent media to carry out its essential role informing the public and holding State officials accountable for their statements and actions;
(iii) Cease the practice of bringing criminal proceedings against journalists, doctors, activists, health workers and other citizens who express opinions on matters concerning the public health crisis, and free all individuals detained on such grounds;
(iv) Absolutely refrain from using the public health crisis for unlawful political purposes beyond the scope of the health threat, such as threatening, arresting and repressing critics and opponents of the government.
(v) Review state-of-emergency laws designed to enhance the power of the executive and restrict freedom of expression for compliance with the international legal principles of necessity, legality and proportionality, and ensure that such laws remain exceptional and temporary in nature.
Article 19(3), ICCPR
'Freedom of expression and information: combating fake news and misinformation', Humanists International