Worrisome regulation on disinformation in times of COVID19

The bill “Which sanctions non-compliance with the measures disposed in the face of epidemiological alerts and in a state of declared health emergency” presented in the Paraguayan Congress on March 18, 2020 by Senator Pedro Santa Cruz, consists of 7 articles that propose to sanction with a fine “those who put at risk or affect the health of other people” in the context of the health emergency (Art. № 1).

This legislative proposal that seeks to enforce with sanctions the effective application of public policies in times of emergency is unclear, especially with regard to disinformation or “false information”. Article 3 states the following: “Anyone who knowingly or willfully disseminates, by any means, false information that generates social panic linked to the epidemiological alert or declaration of a health emergency, shall be punished with a fine […]”.

This article of the law, under the pretext of fighting against disinformation or false information, couldresult in a setback regarding people’s fundamental rights and put freedom of expression particularly at risk. This fundamental right is covered in the National Constitution, where Article 26 establishes:

Free expression and freedom of the press are guaranteed, as well as the dissemination of thought and opinion, without any censorship, with no other limitations than those provided in this Constitution; consequently, no law will be enacted which would render them impossible or restrict them. There will be no press crimes, but only common crimes committed through the press.”

Is disinformation something new?

Disinformation changed its ways with the arrival of the Internet, increasing at a speed unprecedented in the history of information. However, it is worth noting that this is not a new type of phenomenon. Harvard professor Robert Darnton claims1 that already in the 6th century the Byzantine historian Procopius had written a book full of stories of dubious truthfulness, with the aim of ruining the reputation of Emperor Justinian.

Locally, the writer Damián Cabrera brings our attention2 to the campaign carried out between 2010 and 2012 against ABC Color, the newspaper with the largest circulation in Paraguay. The campaign, called “ABC Ijapu” (Guarani for “ABC Lies”), led to an important debate about what is “the truth”, who tells it and from which point of view that “truth” is told.

Concerning terminology, the European Commission’s High Level Expert Group on Fake News and Online Disinformation, in its 2018 report3, recommends abandoning the term “fake news” and using only “disinformation”, defined as follows: “false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit”. The report also states that this does not cover issues arising from the creation and dissemination online of illegal content which is already subject to regulatory remedies under national laws, notably defamation, hate speech, or incitement to violence.

Currently, the legislative proposal does not define what “false information” means, which leaves the definition at the discretion of the judge of the case, making it hard to clearly state when something is “false” and enabling any given stance to be denounced as irregular.

As for the news ecosystem surrounding the COVID19 pandemic, it is developing amid a historical concern over disinformation. We can safely assume that the digital tools, tactics, and capabilities that we develop during this response to the pandemic will lead to future attempts to manipulate markets, borders, and politics.

We should ask ourselves if our approach to the infodemic lives up to the circumstances of the information policy, as it continues to define very real borders and markets. The international political community’s stance on disinformation, in recent years, has been focused on a strategy of contention and blaming. As the consequences of disinformation during the emergency continue to increase, so does the incentive to invest in the quality and governance of public information infrastructure. We may find that containing disinformation, like containing this new virus, is beyond the capacities of the world powers, and that the best we can do is mobilize digital diplomacy systems and adapt ourselves.

Freedom of expression and disinformation

The Office of the United Nations High Commissioner for Human Rights, in its report “on the promotion and protection of freedom of expression on the Internet”4, states that restrictions on the access to online content should be the exception, provided that the following criteria are met: it complies with the principle of legality, meaning that it is provided for in the law, which must be clear and accessible to all; all ordinary instances to achieve the objective have been exhausted; the measure is proportional and necessary; and that it is consistent with the restrictions established in article 19, paragraph 3, of the International Covenant on Civil and Political Rights (ICCPR)5.

In line with this, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, unequivocally stated in a joint statement6 that“General prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression (…) and should be abolished.

Especially relevant is the statement7 of the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, according to which: “Proper interpretation of international standards (…) leads us to conclude that the right to information encompasses all information, including that which we might term ‘erroneous’, ‘untimely’ or ‘incomplete’. Therefore, any prior conditionality to qualify information would limit the amount of information protected by the right to freedom of expression. (…) Requiring the truth or impartiality of information is based on the premise that there is one indisputable truth. (…) Requiring truthfulness could lead to virtually automatic censorship of all information that cannot be proved. This would eliminate, for example, virtually all public debate based primarily on ideas and opinions, which are inherently subjective. Even in cases of information regarding concrete events that may be factually proven, it is still impossible to demand veracity since, unquestionably, there may be a considerable number of markedly different interpretations of a single fact or event.”

Furthermore, UNESCO (the United Nations Educational, Scientific and Cultural Organization) made a contribution to this discussion with an article8 concerning its 5 laws on Media and Information Literacy (MIL), where media literacy is considered to be one of the most important requirements to promote equitable access to information and knowledge, and to promote free, independent and pluralistic media and information systems. As summarized in the title of the article, “developing a critical mind against fake news”.

On the other hand, the Center for Studies on Freedom of Expression of the University of Palermo, Argentina, in a publication on fake news and how to counter disinformation9, highlights that the scale and timing of the solution influence its impact, and that partial or isolated actions to fight disinformation can result in unwanted effects or have a negative impact. While pointing out that the evidence is still precarious, the document indicates that:

“According to a research by a group of academics, still in the review stage, tagging false news stories with verification tools and warnings does not necessarily change the user’s perception of them. And, what’s even more serious, if a user sees stories where there are warnings of possible falsehood, he may draw the conclusion that all those without warnings are true, which, of course, is a wrong generalization.”

In addition, it underlines the following:

“This document is not intended to disqualify actions such as fact-checking, warnings, or context articles. These are answers that seek to weigh the problem of disinformation with the guarantee of freedom of expression for users. Discarding restrictive or openly arbitrary measures increases the difficulty in solving the problem, but avoids the creation of other worse ones.”

According to experts from OAS and UN Special Rapporteurs on Freedom of Expression, the right approach is based on a number of interconnected and mutually reinforcing responses, such as enhancing transparency of online news, promoting media and information literacy to counter disinformation and help users navigate the digital media environment, and developing new tools to empower users and journalists to tackle disinformation and foster a positive engagement with fast-evolving information technologies.

This leads us to reflect on how dangerous the laws that seek to regulate information can be in times of the Internet. It is not the role of legislators or private companies (such as content platforms) to define what is “true” and what is “false”. The challenge is to generate preventive measures, focused on the development of people’s critical thinking, in order to analyze and decide by themselves in the midst of so much over-information that exists online. In other words, education is key in dealing with disinformation and being able to fully exercise such rights as freedom of expression online.

We request the National Congress to reject Article 3 of the bill, because it threatens freedom of expression and other fundamental rights enshrined in our National Constitution, and is therefore contrary to the public interest.

Notas:

  1. Available (in Spanish) at: https://elpais.com/cultura/2017/04/28/actualidad/1493389536_863123.html
  2. Available (in Spanish) at: https://damiancabrera.blogspot.com/2014/03/mentira-relativaabcolorme-y-la.html
  3. Available at: https://ec.europa.eu/digital-single-market/en/news/final-report-high-level-expert-group-fake-news-and-online-disinformation
  4. Available at: https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-30_en.pdf
  5. Available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
  6. Joint Declaration on Freedom of Expression and “Fake News”, Misinformation and Propaganda: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=1056&lID=1
  7. Available at: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=132&lID=1 (sections 31 et seq.)
  8. Available at: https://en.unesco.org/courier/july-september-2017/developing-critical-mind-against-fake-news
  9. Available (in Spanish) at: https://www.palermo.edu/cele/pdf/FakeNews.pdf