Viral Misinformation and the Freedom of Expression: Part I

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Editors’ note: this post is part of a series – see here for Part II and Part III.

Over the past few weeks, at least 20 mobile phone masts were torched or otherwise vandalised in the UK at the hands of energetic members of the public. These individuals apparently believed in some variant of online conspiracy theories connecting the construction of 5G masts with the coronavirus pandemic (these range from 5G actually causing Covid-19, to the lockdown measures being imposed as a distraction from the construction of 5G infrastructure and its alleged ill-effects). This is but one example – and far from being the most egregious, even if it is quite literally towering in its stupidity – of misinformation causing significant social harms during the pandemic. The misinformation is more pervasive than the virus itself; this infodemic runs in parallel to the actual pandemic. According to Ofcom, the British regulator, ‘almost half of UK online adults came across false or misleading information about the coronavirus (Covid-19) in the last week.’

Obviously, misinformation and ‘fake news’ are hardly news for any of us in 2020, nor are any of us today unaware of their power to polarise societies and politics. But the convergence of Covid-19 and viral misinformation is probably unique in its potential to cause significant social harms, including directly causing mass loss of human life. We need no better example than the hundreds of Iranians who died and thousands more who were sickened and blinded after ingesting methanol or other high-proof alcohol, falsely believing that doing so would protect them from the virus.

The virus, the illness, the terror and the anxiety that it causes, will be with us for many months (if not years) to come. So will the efforts to combat it. My focus in this three-part series of posts will be on what human rights law has to say specifically on combatting viral misinformation.

On one hand, human rights law positively requires states (and possibly other relevant actors) to take all feasible measures available to them, exercising due diligence, to protect the human rights to life and health. These measures must, at the very minimum, include the communication of accurate information on public health. On the other hand, the measures that state employ must not unduly infringe on other human rights, such as the freedom of expression, even when such rights can be subject to limitations.

It is not only that a fair balance must be struck between potentially competing rights and interests. It is that protecting the freedom of expression is actually essential for effectively combatting the pandemic, and that unjustified suppression of speech can, just like the untrammelled dissemination of viral misinformation, lead to more deaths in the long run. Censorship is no small part of the origin story of this virus, and such efforts appear to be continuing. Preserving the role of journalists as public watchdogs and protecting whistleblowers is crucial to exposing serious errors or lack of resources in the health system, not for the purpose of assigning blame, but for ensuring that such errors are rectified as soon as possible. It is particularly questionable in that regard to impose blanket bans on health professionals for speaking out publicly on the conditions in their workplaces.

In the mid-term it will be crucial to conduct a comprehensive inventory of the measures that states and corporate actors have taken to combat viral misinformation, to assess the effects they have had in protecting the public against social harms, and to assess the effects they had in suppressing and chilling speech. Such an assessment will be essential to bringing the pandemic to a close. A mass vaccination programme, conducted a year or two from now, seems to be the only viable exit strategy for Covid-19. And that programme will inevitably run into virally misinformed anti-vaccination activism that may significantly undermine its effectiveness and lead to many more lives lost, as it has already done on a smaller scale for other diseases all over the world. Moreover, a failure to learn the lessons of Covid-19 misinformation will leave us all more vulnerable to some future pandemic, which (for all we know) might be just around the corner.

In this series, however, I will only try to map out the relevant issues. First, in the remainder of this post I will explain how international human rights law has traditionally dealt with questions of false information. In the second post I will outline the various possible sources of misinformation, and discuss the responsibility of states who spread misinformation. In my third and final post I will examine the responses by states and digital platforms to the spread of viral misinformation, and offer some thoughts for the long road ahead.

Generally on falsehoods in human rights law

Like many domestic constitutional systems, international human rights law has been torn between two impulses with regard to regulating false statements. On one end, there are situations in which the state routinely suppresses false or misleading information, and this is regarded as justified. Every state that I am aware of has laws against defamation; in defamation cases it is precisely the state – a (hopefully) independent court, but nonetheless one acting on behalf of the state – that determines whether a person’s expression is true or not, and whether it is harmful to the reputation of some other person or not. Yes, there are many controversies about defamation laws, especially with regard to criminal (rather than civil) libel, burdens of proof, and jurisdictional issues. But the basic principle that the state (i.e. its courts) will decide what is and what is not true is not genuinely in doubt, whether in human rights law or in domestic systems most protective of free speech, as in the United States.

Similarly, many states have various kinds of laws against false advertising. Again, it will be the state – be it a court, an executive agency or some kind of independent regulator – that will have to decide whether an advertisement contains false or misleading statements. Whether it’s about advertising claims about broadband speeds or the effects of medications or the nutritional value of some foods, we are generally comfortable to have the state (i.e. its courts or regulators) be the arbiter of the truth.

But, in democracies at least, we are not so comfortable when things become political. If the speaker is a politician or a journalist, the target of the speech is a public figure, or if the matter being discussed relates to the public interest, the speech as a whole enjoys a greater level of protection, whether in the defamation context (Lingens) or otherwise. The European Court has consistently held that ‘there is little scope under Article 10 para. 2 of the Convention for restrictions on political speech or on debate of questions of public interest’ (Wingrove, para 58). Similarly, in its General Comment No 34, para 47, the Human Rights Committee noted that ‘[at] least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defence.’ (The reference to malice most likely comes from the US Supreme Court’s decision in New York Times v. Sullivan, in which the Court categorically held that ‘erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need … to survive,”’ and that untrue defamatory statements against a public official are only actionable if made with ‘actual malice,’ i.e. with knowledge that it was false or with reckless disregard of whether it was false or not.)

This position, on one level, makes perfect sense. We generally want political and policy debates, which often revolve around disputed factual points laced with opinion, to be resolved in the democratic process rather than through the courts. We don’t want, say, the British judiciary to have to ‘correct’ the various factually inaccurate statements made by politicians during the Brexit referendum campaign. Nor do we, for that matter, think that courts (i.e. the state) should resolve scientific or academic debates about truth (as the readers of the Journal and the blog will be well aware). Rather, we generally assume that the best cure for any such bad speech is more good speech, through which our fellow citizens will rationally be persuaded. To quote a justice of the US Supreme Court, ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’ Indeed, that Court is particularly allergic to regulating speech on grounds of falsity, preferring to think in terms of the ‘marketplace of ideas,’ a space in which ideas compete with each other and the right idea ultimately wins out. (Another favourite metaphor is that of the slippery slope to authoritarianism down which a free society will go if it unduly burdens speech). 

But we all know that markets don’t always work as intended, even if the pursuit for truth is reducible to such a metaphor. Nor does human reason. Both can be distorted and manipulated by powerful external and internal forces. And those of us from somewhat less fortunate parts of the world have long known empirically that in our local marketplaces the truth doesn’t always win out in the end, or even most of the time. To give but one lamentable example, not all of the evidence in the world, no matter how rigorously and forensically established, managed to persuade audiences in the former Yugoslavia about the truthfulness of some of the key findings of the ICTY (see here, here and here). To think that the marketplace of ideas will somehow, eventually, inevitably correct such pervasive misconceptions is just naïve. And to think that the fact that any marketplace – especially a local one – accepts certain claims as true makes them true destroys the very idea of truth.

Three takeaways

That said, we can take away three key points from human rights law’s experience with regulating falsehoods. First, and critically, that untruthfulness is not in and of itself grounds for suppressing expression. To be limitable misinformation must directly contribute to social harms, which must be of such magnitude that there is a ‘pressing social need’ (to use the terminology of the European Court) to restrict such expression. Such limitations must pursue one of the legitimate aims enumerated in human rights instruments, be necessary and proportionate. They will in principle only be necessary if the social harms caused by untruthful speech cannot be effectively remedied by more truthful speech.

This can perhaps best be seen from the engagement of human rights bodies with so-called ‘memory laws,’ which can range from criminalizing the denial of specific historical facts or atrocities, such as the Holocaust, to punishing any negation of some kind of overarching historical narrative about (see more here and here). Painting with a very broad brush, human rights bodies have accepted the justifiability of such measures only if the misinformation, interpreted in its context, also constituted some kind of incitement to hatred or intolerance. Thus, for example, in the Faurisson case the Human Rights Committee accepted the justifiability of the criminal prosecution of the applicant for denying the existence of gas chambers in Auschwitz, but did so only because in the French context that denial was actually a ‘coded’ expression of anti-Semitism. In its General Comment No 34, para 49, the Committee added that

Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.

The position of the European Court is similar. For example, while it generally dismisses applications challenging prosecutions for Holocaust denial, implicit to these dismissals is the assumption that in Europe the Holocaust denier is actually engaging in a form of hate speech. But in Perinçek v. Switzerland the Court did not find it justified to restrict the speech of an individual who denied the Armenian genocide, on the basis that it was not established that in doing so the person was calling for hatred, violence or intolerance (paras 229-241).

Second, even when limitations on false speech are necessary in principle, any such limitations must be carefully calibrated to minimize chilling effects on potentially beneficial speech. In the context of the pandemic, such chilling effects can be especially problematic on matters on which there is no expert consensus or such consensus is tentative or evolving – think, for example, of how in the initial stages of the pandemic healthcare professionals were virtually unanimous in advising against the personal use of face masks, only for those recommendations to gradually start changing. Such processes must not be impeded by restrictions on the dissemination of false information.

Third, and finally, while it is easy to say in principle, as I have done above, that ‘political’ speech enjoys a heightened degree of protection, that category is analytically far too crude. Any kind of (mis)information can become political or politicised, as we are now witnessing during the pandemic. This routinely happens even with regard to facially technical issues such as the numbers of those infected or tested, or the numbers of hospital beds or ventilators available. That a politician engages in viral misinformation on matters subject to political debate does not mean that such speech can never be limited. Nor has, unlike First Amendment doctrine in the United States, human rights law ever categorically banned content or viewpoint-based restrictions on political speech.

 

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