Fighting Misinformation and Defending Free Expression during COVID-19: Recommendations for States

"Openness about information, measures taken, and policies is not a hindrance to an effective COVID-19 response. On the contrary, it is the foundation of trust in public authorities which is essential in tackling the spread of the disease." - Fanny Hidvégi, Europe Policy Manager at Access Now

During the COVID-19 pandemic, the principles of openness and interconnection that are at the core of the internet allowed for it to be a key tool to exercise the right to access and impart information. At the same time, information and communication technology (ICT), in particular, has allowed the rapid growth of COVID-19-related misinformation, disinformation, and hate speech. Governments have responded with measures that, in the view of Access Now, run the risk of disproportionately limiting freedom of expression and opinion. In this paper, Access Now offers practical examples and promising practices in an effort to support governments in rights-respecting responses to the COVID-19 crisis that: promote public health, prevent discrimination, and ensure access to reliable and timely information; defend unrestricted access to an open, affordable, and secure internet; ensure the enjoyment of freedom of expression and of opinion; and protect privacy and personal data.

Access Now defines disinformation as statements that "are known or reasonably should be known to be false"; misinformation "is false information, but the person who is disseminating it believes it to be true." Access Now points out that inadequate access to information and broad criminalisation of speech can make the ongoing health crisis and its impacts even worse. Further, as examples provided in the report illustrate, during the COVID-19 pandemic, vulnerable groups have been targeted with hate speech leveraging disinformation and misinformation, significantly contributing to the rhetoric of social stigma.

During emergencies, certain fundamental rights, including the right to freedom of expression and opinion and the right to seek and impart information, may be restricted to address the current health crisis, as long as governments apply basic democratic principles and a series of safeguards, and that the interference is lawful, limited in time, and not arbitrary. However (footnote numbers removed): "Authorities in several countries have moved first to censor information about COVID-19 rather than allow scientists to publicize and debate the extent or severity of the outbreak. In some cases, authoritarian governments are taking advantage of the COVID-19 health crisis to reinforce state-sponsored propaganda and to cement their powers by further undermining any existing or remaining constitutional checks and balances. In times of national emergencies, some state actors promote 'self-serving propaganda' that opens serious threats to independent media and journalists who are objectively reporting about the health crisis."

Because "The purpose of the right to freedom of information is to counter the particular power imbalance between the state and the people", Access Now recommends that governments:

• Be transparent - make reliable and timely information available in transparent and accessible formats by:
  • Publishing statistics on the number of newly infected patients and those who recovered and providing scientific, easy-to-understand explanations of the testing protocol and the methodology of the data being presented;
  • Following data protection and privacy legal standards in the use of such statistics;
  • Holding regular briefings by responsible, compassionate health officials in an easily understandable manner and ensuring the access of the media to official and public information;
  • Providing accurate, regular updates on access to healthcare services;
  • Communicating information in all spoken languages, including minority and sign languages, and taking into consideration digital literacy and other barriers;
  • Maintaining the functioning of transparency and freedom of information (FOI) laws; and
  • Prioritising the disclosure of information related to the emergency.
• Do not hide or manipulate information - keep in mind that citizens, the press, and the scientific community all over the world rely on relevant and accurate information about the unfolding of pandemics to inform their actions.
• Protect journalists and their work, as they play a key role in holding governments authorities and companies accountable in times of crisis.

As outlined in the Human Rights Council Resolution 16/18, states can combat misinformation - which typically is shared without malicious intent - through robust public messaging, education, and outreach. Examples include public service announcements (PSAs) at the national and local levels and initiatives such as a World Health Organization (WHO) website with a list of COVID-19 myths spreading online, intended to help counter them and provide accurate information. However, Access Now provides several examples of disproportionate legal measures criminalising the spread of COVID-19-related misinformation. Recommendations to avoid going down this path include:

• Do not use criminal law for speech acts, as doing so "creates a dangerous space for human rights abuse in the form of state-sponsored intimidation and unjustified prosecution of critical voices." This entails limiting use of criminal law to cases of incitement to violence and hatred, and applying and interpreting criminal provisions that punish specific types of conduct against public order restrictively.
• Protect people who speak up, including by ensuring and strengthening whistleblower protections.

Access Now reports that, since the pandemic broke out, there have been examples of online hate speech and stigmatisation targeting people of particular ethnic backgrounds and those presumed to be infected or in contact with people who are ill with the virus. "Social stigmatization can reinforce the social isolation and silencing of certain...groups in a society and consequently create the environment in which the virus is more likely to spread..." One example of a response: On the International Day for Elimination of Racial Discrimination (March 21) 2020, the city of Barcelona, Spain, launched an anti-racism social media campaign using the hashtag #StopRacism (#StopRacisme in Catalan). The campaign highlights 6 activists who, in the context of the COVID-19 health crisis, shared their views on how racism and xenophobia have escalated. In light of this promising practice, recommendations related to stigma include:

• Define prohibited conduct narrowly, and do not criminalise speech acts.
• Ensure hate speech laws are necessary and proportionate, making robust public participation and adherence to the rule of law the priority.
• Do not assign additional responsibility to online platforms for combating online hate speech or disinformation and misinformation in the context of the COVID-19 health crisis that goes beyond legitimate legal restrictions available to states, which bear the primary duty for protecting the human rights of online users.
• Do not use racist terminology (e.g., public officials should refrain from using terms such as "Chinese virus").
• Help guide the media with detailed recommendations on how to report accurately and responsibly about the COVID-19 health crisis.

In conclusion: "Inadequate access to objective data about the COVID-19 pandemic creates space for the misleading and inaccurate information that some governments abuse to further their political objectives and push through oppressive measures, while deepening social stigmatization of vulnerable groups based on myths and fabricated stories. Meanwhile, hastily crafted responses to disinformation and misinformation, especially those based in the over-broad criminalization of speech, can serve to suppress objective journalism and scientific information, either intentionally or as a by-product of a flawed approach. To protect public health and the health of our democracies moving forward, governments must align approaches for addressing disinformation and misinformation with international human rights obligations and bulwark the rule of law."