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Excerpted From: Michael Karanicolas, Even in a Pandemic, Sunlight Is the Best Disinfectant: Covid-19 and Global Freedom of Expression, 22 Oregon Review of International Law 1 (2021) (114 Footnotes) (Full Document)
In times of war, the right to speak freely is often the first casualty. As global leaders use the language of war to describe their efforts to stop COVD-19, an implication exists that, as in wartime, the current crisis demands exceptional limitations on freedom of expression. In the name of public health, governments around the world have enacted new policies targeting misinformation or increased enforcement of existing rules over the course of the pandemic. While the World Health Organization warns of an “infodemic” of fake news that “spreads faster and more easily than this virus,” human rights advocates express alarm at the effects of the accompanying crackdown on freedom of expression.
This Article discusses the global human rights implications of aggressive measures targeting the spread of COVID-19-related misinformation.
Part I discusses the international human rights standards regarding misinformation.
Part II explores various regulatory responses to misinformation about COVD-19, thus showing the impact on international human rights.
Part III explores the applicability of international human rights law, specifically the standards for derogation in key human rights documents, to the current exceptional circumstances of COVID-19.
Part IV assesses the regulatory responses against international human rights standards, finding significant cause for concern, particularly if these enforcement postures become normalized.
Part V offers alternative solutions to the human rights challenges posed by health misinformation, particularly restrictions that are more carefully targeted and less open to abuse as well as transparency measures to promote trust and accountability in public institutions.
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Although harm to freedom of expression has not been the most dramatic impact of the current pandemic, the global shift away from international human rights standards may turn out to be one of its most pernicious and lasting legacies. This conceptual shift accompanies an increasingly common narrative regarding the supposed superiority of closed or repressive systems of government in responding to the pandemic. This perspective relies on a highly selective view of the global landscape that ignores, for example, atrocious failures to contain the virus in Iran. Some have even pointed to China as an example of the benefits of mechanisms of tight social control, even though these restrictions have, at best, been a double-edged sword. For example, Li Wenliang, the Wuhan doctor whom the government has now lionized for his early attempts to sound an alarm about the virus, was originally arrested for his actions.
During this time of crisis, states should cleave to their constitutional and human rights values not only for moral reasons but also for practical ones. It is understandable that governments, feeling particularly vulnerable, might seek to blunt criticism. Likewise, the public's requests for information must seem, to many officials, like a particularly annoying or frivolous exercise given the major threats that they are facing. But critical reporting and public oversight are valuable tools to improving government administration and fostering public trust, both of which are needed now more than ever.
Michael Karanicolas, Wikimedia Fellow-- Information Society Project (ISP), Yale Law School, with supporting research from ISP Summer Students Tomiwa Ilori, Ayesha Khan, and Juan Carlos Salamanca.
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