Future of Free Speech in the Wake of COVID-19

Raghav Mendiratta &

Shreya Tewari

London School of Economics

The ongoing health pandemic has taken thousands of lives and also weakened freedom of speech, which is the immune system of democracy. COVID-19 has led to the consolidation of authoritarian crackdowns on freedom speech across the world. This is a phenomenon in countries where democracy was already immunocompromised. Examples range from soft authoritarian states such as Hungary to robust democracies such as the U.K..

In this context, the two most pressing challenges for the post-COVID future of free speech are: first, to ensure that countries roll back emergency measures applied during the pandemic once it has passed.  This includes rolling back the increased censorship and criminalisation of disinformation. Second, to ensure that mass surveillance introduced during the pandemic does not cause a chilling effect for speech.

Rollback of emergency measures that curtail free speech

The spread of COVID-19 has highlighted the importance of the free exchange of information and transparent governance. Similar to the 2002 SARS outbreak, Chinese censorship is possibly a major reason for COVID-19 to have spiraled out of control. Ironically, a crisis which has been caused by a lack of freedom of speech has resulted in nations rushing to censor and criminalise speech. Historical evidence suggests that democracies with a free exchange of information have even performed much better in dealing with pandemics.

Quoting WHO Director-General Dr Tedros, “fake news spreads faster and more easily than the virus, and [it] is just as dangerous”. The problem arises when measures adopted to regulate this disinformation ‘infodemic’ are vague and disproportionate. A disproportionate restriction on free expression makes it violate the standard laid down in Article 19(3) of the ICCPR. Article 19(3) lays down that any restriction on free expression must 1) be proportionate to the aim pursued, 2) be laid down by a valid law, and 3) pursue a legitimate aim such as protecting the reputation of persons, national security etc. In fact, as per the UN Special Rapporteur on Freedom of Expression, this three-part test applies with greater force during a pandemic because of the extraordinary value that the ICCPR places on free expression to advance public health. 

The unintended consequence of penal provisions to curb medical misinformation is the stifling of dissent, chilling free speech, distrust in institutional information and delayed access to reliable information. Unsurprisingly, countries including India, Cambodia, Thailand, Hungary, Zimbabwe, Azerbaijan and Sri Lanka have used these provisions to attack journalists and dissidents.

To rectify the damage caused to free speech by these provisions, there is a compelling need to roll back these provisions as soon as possible. To do so, the first step would be to keep a constant check on the introduction and subsequent use of such measures in countries around the world. A possible mechanism to track the introduction of such provisions is to create an international repository of censorship and emergency measures introduced during the lock-down, and to then program a live monitor that tracks whether they have been rolled back.

Mass Surveillance

Surveillance and freedom of speech are closely linked.  Surveillance creates a panopticon structure, by which an all-powerful entity/government can monitor everyone around them. This  infringes upon the right to privacy, right to association and right to movement that is intrinsically linked to freedom of speech. Surveillance infringes upon free expression as knowing that one’s speech may be monitored, causes persons to self-censor their own speech. This may cause a widespread chilling effect. As a recent example of the threat caused by surveillance on free speech, we look at the recent protests in Hong Kong. The Chinese Government actively used facial recognition technologies to intimidate protesters and threaten them with long-term consequences for them being critical of the Chinese Government. 

Governments may argue for a trade-off between privacy and public goals during a health pandemic. However, civil society must be wary before this becomes an excuse to transgress more rights in the future. Historically, societies have responded to crises by increasing surveillance, such as in the aftermath of 9/11. However, it is pertinent that measures rolled out in response to 9/11were never withdrawn and continue to be in silent operation. Moreover, what makes surveillance in the aftermath of COVID-19 unique is that governments now have access to intimate details about their entire citizenries including their location, travel history, call records, health conditions and even social media accounts by using specifically designed mobile applications, telecom data, Bluetooth-based-contact tracing systems etc.

By citing efforts of contact tracing, proximity tracking, and ensuring isolation, governments now have access to intimate details about their citizenries including their location, travel history, call records, health conditions and even social media accounts. While the efficacy of these measures remains unproven, their chilling effect seems self-evident. For example, call records may not accurately reveal proximity within 6 feet, but would surely reveal a journalist’s confidential source.

Thus, there is a need to ensure that surveillance measures include both due process and transparency provisions. We could respond to this in two ways: first, by lobbying with policymakers and raising awareness amongst members of the society about surveillance measures if they are not withdrawn. Second, to mount strategic litigation against these measures at an appropriate forum (preferably, a Constitutional Court). If successful, such a challenge could be a landmark case with global implications.

Conclusion

In the words of UN Special Rapporteur on Freedom of Expression Prof David Kaye, the pandemic serves as a jolting wake-up call to all Governments and relevant players in the digital age that censorship of all sorts interferes with a range of human rights and promoting access to information bolsters the promotion of health, life, autonomy and good governance.

It is the unfortunate reality that COVID-19 has weakened the freedom of speech framework worldwide and turned the clock back by many years. On the bright side, freedom of speech has made the case for itself showing that even (or especially) in times of crisis, sunlight is the best disinfectant. We need to come to terms with the drastic changes in the last couple of months and make a sustained effort to restore normalcy and let free speech thrive.

Raghav Mendiratta is a Member of the Teaching Committee at the London School of Economics, and Legal Researcher at the Columbia University's Global Freedom of Expression Centre, New York and Stanford's Centre for Internet and Society

Shreya Tewari is a LL.M. Candidate, London School of Economics and Political Science

Suggested citation: Raghav Mendiratta & Shreya Tewari, “Future of Free Speech in the Wake of Covid-19” IACL-AIDC Blog (28 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/23/constitutional-literacy-in-times-of-crisis