Covid-19: attempts to curb ‘disinfodemic’ run risk of curtailing freedom of expression

Yola VerbruggenMonday 27 April 2020

During the United States Presidential elections in 2016, ‘fake news’ became a mainstream term to describe false information deliberately distributed to misinform the public.

Alongside misleading health advice, another example of disinformation currently being shared online concerns the conspiracy theory that the 5G phone network speeds up the spread of Covid-19. In China and elsewhere, a story is circulating online that the pandemic is a US plot to disrupt the Chinese economy.

Social media companies have been reluctant in the past to police their own platforms for disinformation, but as the virus has spread, many have become more proactive in this area. In mid-March for instance, Twitter widened its definition of harm to include content that ‘goes directly against guidance from authoritative sources of global and local public health information’, allowing it to remove tweets containing disinformation about Covid-19.

The efforts of social media platforms support governments’ painstaking efforts to curb the spread of the virus, but inevitably they raise questions about the boundaries of such powers and the impact these interventions might have on freedom of expression. Online censorship in China, after all, prevented free discussion of Covid-19 and its spread and may have contributed to the ability of authorities elsewhere to react to the pandemic.

In the United Kingdom, the government is working with social media platforms to stem the spread of misinformation around the virus. On both Facebook and Twitter, users now find information from the UK’s National Health Service at the top of their search results for ‘coronavirus’.

The situation in Germany, where social media firms are obliged by law to take down ‘fake news’, highlights the challenges of putting these privately-owned companies in charge of regulating online information. Martin Schirmbacher, Member of the IBA Technology Law Committee Advisory Board and a partner at Härting Rechtsanwälte in Berlin, says that the fears some commentators had of the German law leading to over-blocking have proven accurate.

‘Almost daily, the[re] are reports of people being blocked or having their comments, which are not criminal, deleted,’ he says. ‘Under German laws of freedom of expression, these should have stayed online.’

Amendments to Germany’s Network Enforcement Act have been proposed, says Schirmbacher, which should better protect the rights of the users. The proposals include a formal right to appeal. ‘Whether and when this new law will be enacted is yet unclear,’ explains Schirmbacher.

The example of China shows, however, that freedoms are also at stake when governments are in charge of curbing what some term the current ‘disinfodemic’. It is often the free press, rather than the creators of misinformation, who feel the pressure in countries where the authorities have been given far-reaching powers. In Egypt and Uzbekistan, for instance, governments are using new regulations to block websites and hand out fines and even jail sentences for spreading information the government considers ‘fake’. In Zimbabwe, people can even face jail terms of up to 20 years.

In the US, President Donald Trump used a press briefing to accuse of being ‘fake’ several news outlets that have questioned his response to the Covid-19 outbreak.

‘The importance of the free press is being highlighted like never before,’ says Robert Balin, Member of the IBA Media Law Committee Advisory Board and a partner at Davis Wright Tremaine in New York. ‘The prosecution of those spreading fake news should not turn into censorship of critical reporting.’

Balin doesn’t believe laws to address disinformation are the solution. ‘Nothing could be more harmful right now than false information, but under existing criminal law we can prosecute those knowingly spreading harmful, false information,’ he says. Criminal law was used in Ghana in March to arrest a man operating a Russian internet troll army that targeted US voters. He was charged with money laundering.

According to Facebook, Ghana – in common with other African countries – has one of the lowest percentages of reporting suspected disinformation, which makes it easy for disinformation to spread. ‘Clearly, Ghana, like many other countries, is not immune to fake news,’ says Teki Akuetteh Falconer, Publications Officer of the IBA Communications Law Committee and a senior partner at Nsiah Akuetteh & Co in Accra. ‘We have not however seen any specific measures – by way of enforcing existing or passing specific laws – being taken to address fake news.’

Akuetteh Falconer, who is also Founder and Executive Director at the Africa Digital Rights Hub, says lawyers need to stay on top of developments resulting from the emergency communications measures that are introduced to combat the Covid-19 pandemic. ‘Lawyers are extremely important in the current climate,’ she believes. ‘We are the ones who are normally consulted or engaged to advise on and draft these instruments. Our interventions can therefore go a long way to ensuring the safeguarding of fundamental rights.’