By Naomi Gilens and Jillian C. York
In the face of a global pandemic, there is an urgent need for reporting relating to the spread of the coronavirus and how governments are responding. But it is in times of crisis that the civil liberties we value most are put to the test—and that is exactly what is happening now as governments around the world clamp down on journalism and stifle the free flow of critical information.
With so little currently known about the novel coronavirus, governments around the world have seized the opportunity to control the narrative around the virus and their responses to it. In countries including Algeria, Azerbaijan, China, Hungary, Indonesia, Iran, Palestine, Russia, South Africa, Thailand, and more, authorities have banned individuals and journalists from sharing false or misleading information about the coronavirus.
Criminalizing “false information,” however, gives the party in control of law enforcement the power to define what information is “true” or “correct.” And such laws also give the government and the power to censor, detain, arrest, and prosecute those who share information that doesn’t align with the official state narrative.
This is already happening. In Cambodia, police have arrested at least 17 people for spreading “false information” about coronavirus—including four members of the opposition political party, all of whom remain in detention, and a teenage girl expressing fears on social media about the rumored spread of the virus at her school.
In Turkey, authorities have detained people for making “unfounded” postings on social media criticizing the Turkish government’s response to the pandemic and suggesting that the coronavirus was spreading widely in the country—even though, according to independent reporting, this is exactly the case.
Police in Indian-administered Kashmir have detained journalists and threatened them with prosecution. The detained journalists had posted on social media about coronavirus, and about government censorship and militancy in Kashmir.
Even Puerto Rico, a United States territory that—like the fifty states—is bound by the free speech protections enshrined in the Constitution, has enacted a plainly unconstitutional law prohibiting, in certain circumstances, the spread of some types of “false information” related to the government’s response to the virus.
But as the world battles a novel and little-understood virus threatening lives and livelihoods around the globe, ensuring the free flow of information is more important now than ever. Who knows how the course of the virus could have been different if China had not silenced Wuhan Doctor Li Wenliang when he sought to sound the alarm about the new coronavirus during its earliest days, instead of silencing him with accusations of spreading false rumors?
By embracing China’s approach, governments are choosing to censor, instead of foster, reporting about how the crisis is unfolding. The threat of interrogation, detention, and arrest chills journalists, political activists, and individuals from sharing their experiences, investigating official actions, or challenging the government’s narrative.
To be sure, governments play a critical role in battling the global pandemic—and that includes by acting as sources of important information. But that does not mean that governments should anoint themselves the sole arbiters of truth and falsity, and strip individuals’ rights to investigate the government’s claims, question the official narrative, and share their research, observations, or experiences.
After all, the very premise of “false news” laws—that there always exists an identifiable, objective “truth”—is often hollow. Particularly in this quickly evolving crisis, even the most well-intentioned parties’ understandings of the virus are changing rapidly. Only two months ago, the U.S. government was stating that face masks were not effective and instructing people not to wear them—but today, the opposite guidance is in effect (and has been in some other countries for some time now).
Moreover, the United States Supreme Court has made clear that even intentionally false speech cannot be criminalized where that speech does not cause material, provable harm. Allowing the government to police individuals’ speech for truth or falsity would simply be too great a burden on the right to speak free from government scrutiny. “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
Although international human rights law (namely, Article 19 of the International Covenant on Civil and Political Rights, or ICCPR) allows for certain restrictions on free expression—provided by law and deemed necessary—for the protection of national security, public health, public order, or morals, a 2017 joint declaration of special mandates unequivocally opposed general prohibitions on fake news:
General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information,” are incompatible with international standards for restrictions on freedom of expression . . . and should be abolished.
And in a new report on COVID-19 and freedom of expression, David Kaye, the UN Special Rapporteur on Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, acknowledged the harms that mis- and disinformation poses in a pandemic, noted the elusiveness of any singular definition of disinformation, and re-emphasized the importance of countering untruths. But the Special Rapporteur warned against laws aimed at punishing false information, cautioning:
Measures to combat disinformation must never prevent journalists and media actors from carrying out their work or lead to content being unduly blocked on the Internet. . . . Vague prohibitions of disinformation effectively empower government officials with the ability to determine the truthfulness or falsity of content in the public and political domain.
As we observe World Press Freedom Day and celebrate the work of the press to hold governments accountable, we must also protect the ability of journalists, activists, and citizens to speak out without fear that they will be arrested or imprisoned for the information they share.
Naomi is an attorney specializing in free speech litigation. Prior to joining EFF, she worked on issues of free speech, privacy, and government transparency at the ACLU. Naomi graduated from Harvard Law School and Princeton University, and served as a law clerk to the Honorable David J. Barron of the U.S. Court of Appeals for the First Circuit, and the Honorable Indira Talwani of the U.S. District Court for the District of Massachusetts.
Jillian C. York is EFF’s Director for International Freedom of Expression and is based in Berlin, Germany. Her work examines state and corporate censorship and its impact on culture and human rights, with an emphasis on marginalized communities. At EFF, she leads Onlinecensorship.org and works on platform censorship and accountability, state censorship, the impact of sanctions, and digital security. Jillian’s writing has been featured in Motherboard, Buzzfeed, the Guardian, Quartz, the Washington Post, and the New York Times, among others. She is also a regular speaker at global events.
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