The outbreak of the COVID-19 pandemic has resulted in a weakening of fundamental rights such as freedom of expression, the right of access to information, and the right to privacy in many parts of the world. Several national authorities have declared states of emergency, resulting in serious restrictions of fundamental rights including freedom of expression. In addition, some governments have adopted laws to fight disinformation, not always in line with International Human Rights Law. It is foreseeable that courts will have to rule on cases related to freedom of the press and safety of journalists in relation with the outbreak of the pandemic.
In response to these growing legal challenges, UNESCO has issued guidelines for judges and courts, both at national and regional levels, that can serve as references to apply the theorical frameworks of international law and human rights standards to protect and promote freedom of expression. The production of the guidelines follow a webinar series on legal challenges to freedom of expression in relation with the COVID-19 pandemic, organized in June 2020 by UNESCO and the Knight Center for Journalism in the Americas, The Bonavero Institute for Human Rights and the Reuters Institute for the Study of Journalism of the University of Oxford and in partnership with the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights, the ECOWAS Court of Justice and the Office of the Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights. The webinars (available here in Spanish, English and French) featured renowned speakers, including judges and former judges from the aforementioned regional human rights courts and the European Court of Human Rights, university experts and academics.
Developed within the context of the global health pandemic, the guidelines unpack the implications of a state of emergency and exceptional measures with reference to prevailing international law. This involved namely the requirements and criteria under which the adoption of restrictive measures on the fundamental right of freedom of expression is justifiable according to international and regional standards.
“Freedom of expression can be limited for public health reasons inasmuch as the three-part test is respected”, said Joan Barata, from the Center for Internet and Society and the Cyber Policy Center (Stanford University) and the expert authoring the text. Accordingly, in order to be legitimate, restrictions on freedom of expression must comply with a three-part test, based on the principles of legality, legitimacy, necessity and proportionality in a democratic society.
The guidelines also emphasize the need to apply international standards of data protection and privacy in the development of health data collection tools (e.g. contact tracing apps) to track the spread of the virus. Collection and retention of health data can have wide-ranging implications on individual personal data, which judicial authorities must be especially cognizant of in the digital age.
“This pandemic is also a ‘disinfodemic’, which must be faced by a free, independent and plural press”, said Guilherme Canela, Chief of Section for Freedom of Expression and Safety of Journalists at UNESCO. During the COVID-19 crises, an overabundance of falsehoods contents has been produced and shared with malicious motivation. The guidelines recommend principles to follow when dealing with the spread of falsehoods during the pandemic, including open communication by national authorities, promotion of independent media and media literacy, and due diligence on the part of social media companies to combat hate speech.
Since 2013, UNESCO has been developing comprehensive programmes to raise capacities of judges and judicial actors (prosecutors, lawyers) and civil society on international and regional standards on freedom of expression and safety of journalists. These guidelines, which have been produced in the framework of this programme for judicial operators, will support the work of members of the judiciary and prosecution services in upholding the respect of the rule of law, freedom of expression and safety of journalists during and beyond the pandemic.
The webinars and the publication of the guidelines received the support of the Open Society Foundations.