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‘Fake news’ laws, privacy & free speech on trial: Government overreach in the infodemic?

The infodemic has prompted some governments to restrict online speech in an attempt to stop the spread of false information. The cost? Fundamental human rights and freedoms.

The surfeit of misinformation online during the pandemic has prompted some governments to implement extraordinary measures in an attempt to establish control amid the chaos. Criminalizing the dissemination of “false news,” expanding existing penalties for spreading misinformation, and increasing surveillance are among the actions some authorities have taken. Human rights and media observers warn that such remedies are worse than the problem they seek to alleviate, and that freedom of expression, privacy and the right to protest are disintegrating under the pretext of safeguarding public health.

But governments’ concerns aren’t without reason. Over the past six months, conspiracy theories, bogus cures and partisan finger-pointing online have spilled over into real-world harm: more than 700 dead from alcohol poisoning in Iran, Muslims attacked in India, telecommunications infrastructure vandalized in the UK, and untold numbers of people sick or dead from a virus they thought wasn’t serious. This on top of more than 700,000 deaths from Covid-19 and the gutting of economies around the globe.  

Hungary, Romania, Algeria, Thailand and the Philippines are among the countries that have instituted new laws or invoked emergency decrees giving authorities the power to block websites, issue fines or imprison people for producing or spreading false information during the pandemic. In Cambodia and Indonesia, social media users have been arrested after allegedly posting false news about the coronavirus. In Egypt, a journalist who had been critical of the government’s response to the pandemic and was detained for “spreading fake news” contracted the virus in custody and died before he could be tried. Even in South Africa, where freedom of expression is a constitutional right, politicians criminalized the publication of any statement made “with the intention to deceive any other person” about Covid-19, government measures to address the disease or — in a sign of the country’s grim experience with HIV/AIDS — a person’s infection status.

In a March 2020 statement, United Nations human rights experts urged governments to “avoid overreach of security measures” in responding to the pandemic, and said that emergency powers should be “proportionate, necessary and non-discriminatory,” and not be used to quash dissent.

It’s an exhortation that many are not heeding.

Julie Posetti, global director of research at the International Center for Journalists, said legislation is being misused to justify crackdowns on legitimate speech in a number of countries. 

“There are circumstances where journalists have been detained and fined, for example, in reference to reportage that has been critical of government and that is deemed to be ‘fake news’ because it doesn’t suit the government,” Posetti told First Draft.

But she said that even well-intentioned laws could “inadvertently catch legitimate communication in the net,” effectively criminalizing journalism and undermining fundamental rights.

Whistleblowers have also come under attack, notably the Chinese ophthalmologist Li Wenliang, who was reprimanded for “spreading rumors” about the outbreak in Wuhan before dying from Covid-19, only to receive a posthumous apology. 

“If you can’t have doctors, nurses and other healthcare workers speaking publicly about failures of the system where it’s in the public interest to do so, because they’re afraid of being jailed on so-called ‘fake news’ laws because the government equates criticism with fakery, you have a really serious problem,” Posetti said.

Nani Jansen Reventlow, a human rights lawyer and founding director of the Digital Freedom Fund, said laws governing misinformation affect private individuals as much as journalists. So does increased surveillance, such as contact-tracing software.

“Using apps to track people’s movement has a chilling effect on people being able to share information because everyone knows where they’ve been,” she said.

She cited South Korea’s app as an example of a coronavirus tracker having a particularly deleterious impact on people’s privacy, with individuals able to monitor one another through technology that was found to have serious security flaws.   

In addition to affecting whistleblowers and source confidentiality for journalists, increased surveillance could also affect people’s willingness to exercise their right to assemble.

“Will you actually go to a protest if you know you’re going to be monitored? That particularly applies to those of us who are in a more vulnerable position when it comes to law enforcement,” Jansen Reventlow said. “You never know how it’s going to backfire.”

Internet shutdowns preceding the pandemic — such as those in Indian-administered region of Kashmir and the Rohingya refugee camps in Cox’s Bazar, Bangladesh — have also impeded access to essential information about the virus and response.

Jansen Reventlow fears emergency measures that stifle civil society and press freedom, such as those implemented in Hungary, will outlast the pandemic. “There is a danger that those emergency powers will not be turned back anytime soon,” she said.

Then there’s the question of whether laws against misinformation achieve their professed purpose.

Posetti said there was a lack of empirical evidence as to whether such laws impeded the distribution of false and misleading information. “But what we can say from prior research is that these sorts of laws do, in fact, chill a broad range of public communication, and that is where the problem lies.”

It’s a concern Jansen Reventlow shares. “The only thing it’s going to do is make it easier for public authorities to clamp down on things they don’t like.”

Instead, she said, governments should consistently and proactively provide accurate, timely information about the situation and the basis for policy decisions, so that people aren’t left to speculate in a vacuum. 

“It’s about finding the right balance. But a thorough debate about where that balance should be found is pretty absent at the moment,” she said.

This article is part of a series tracking the infodemic of coronavirus misinformation.

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