ARTICLE 19 has submitted its response to the Special Rapporteur on Freedom of Expression and Opinion’s consultations for her upcoming report to the UN Human Rights Council focused on ‘disinformation.’ The will to control the spread of ‘disinformation’ poses many challenges, including the ever-expanding role of dominant social media platforms and state-controlled information. The risk is giving these actors absolute control over what information is deemed true or false. Digital platforms have increased the scale of information sharing but due to current content moderation practices, diversity and pluralism of said information is at an all-time low. We are concerned that an over-reliance on restrictive legislation instead of positive policy measures will only lead to the decline of freedom of expression online.
Although problems posed by disinformation are not new, in recent years and months, the issue has emerged to permeate an increasingly digital society, triggering further debates over politics, journalism and social media. Amid the COVID-19 pandemic, calls to stop the “spread of disinformation” and “infodemics” have increased and more and more States have opted to legislate on the issue. The Special Rapporteur’s report is therefore extremely timely considering the ongoing policy and legislative developments. As restrictions on disinformation de facto limit freedom of expression, any policy or legislative proposal must respect international freedom of expression standards.
In our submission, ARTICLE 19 presents the key challenges for freedom of expression raised by the laws, policies and measures adopted by States as well as commenting on those taken by digital platforms to address the issue of disinformation on their platforms.
In particular, ARTICLE 19 highlights the following:
• The concept of ‘disinformation’ and related terms (e.g. ‘misinformation,’ ‘false information’ or propaganda) do not have an agreed definition in international or regional human rights law. Specific laws and general prohibitions on spreading ‘disinformation’ are more often than not used and abused by States to silence independent media and voices of opposition. States should repeal such restrictive legislation and ensure that any laws on disinformation fully comply with international freedom of expression standards and are proportionate and necessary in a democratic society.
• Restricting freedom of expression on the basis that the information shared is “false information” is not a legitimate interest under international human rights law. This amounts to creating a legal “duty of truth” which, in turn, limits the free flow of information. States should not be able to decide that is true or false as this allows for state-controlled information and censorship. Sharing “false information” may be of public such as artists creating parodies or people who simply want to share the “false information” with their audience to note its existence. Additionality, falsity of information may evolve or change in time. This is particularly notable regarding the use of facemasks during the COVID-19 pandemic.
• Disinformation must be seen in the context of reduced pluralism and diversity of information accessible online. Currently, the business models of online platforms are profit-driven. Exposure diversity is not a priority. The user is therefore not exposed to a wide range of content and opinions. This is concerning as plurality and diversity is fundamental in any democratic society as it enables open and informed public discourse. Despite the larger scale of online information sharing, users are limited to their own bubbles of content due to the content curation algorithms and practices of the companies. Their content moderation and curation practices lack respect for human rights, accountability and transparency over decision-making.
• Companies have tried to be part of the solution by adopting their own set of policies and tools to detect and stop the spread of disinformation on their platforms. However, ARTICLE 19 observes that these initiatives have not, as of yet, been conclusive. We have recommended in the past that self-regulation framework can provide better solutions for the current problems caused by disinformation. It allows for a flexible and adaptable framework to adjust to the Additionally, partnerships with other entities to promote trustworthy content a could also be a part of the solution of limiting the spread of disinformation.
• Disinformation laws in several instances have been misused and abused by public authorities. Not only do they apply very harsh sanctions, they also often fail to meet the three-part test of being prescribed by law, in pursuit of a legitimate aim and necessary and proportionate in a democratic society. In the submission, ARTICLE 19 documents a list of examples of restrictive legislation adopted by States from various regions.
We recommend that the Special Rapporteur highlight the following in her report:
• ARTICLE 19 does not recommend that any legislator use the concept of disinformation to adopt any new legislation. New legislation prohibiting disinformation is not the way forward due to the negative impacts it has on freedom of expression. There are other existing laws that cover defamation, incitement to violence and privacy among others that cover the issues related to disinformation. So long as these laws respect international standards on freedom of expression, the negative impacts of disinformation such as discrimination and hostility can be countered.
• States should focus on their positive obligations to promote a free, independent and diverse communications environment, including media diversity and digital and media literacy that are key means of addressing disinformation. Media actors will be able to fulfil their role only if there are broad means for them to receive, seek and impart information. An open media landscape is key to addressing the issues of disinformation.
• States should facilitate access to public information by adopting comprehensive right to information laws and complying with the principles of maximum transparency of public administration.
• Social media platforms should, in line with their international human rights obligations, ensure full transparency of their actions concerning disinformation. This includes clear and transparent content moderation procedures to ensuring full transparency when engaging with governments and other relevant stakeholders.
ARTICLE 19 looks forward to continue supporting the Special Rapporteur’s work in this area.