On 1 April 2022, the UN Human Rights Council consensually adopted a new resolution on disinformation, led by Ukraine and a core group consisting of Japan, Latvia, Lithuania, Poland, the United Kingdom, and the United States. The resolution rejects measures that rely on censorship and instead reaffirms the “essential role” that the right to freedom of expression and the freedom to seek, receive and impart information play in countering disinformation. It includes strong language on media freedom, the safety of journalists, and access to information held by public bodies. It has also mandated a high-level panel discussion on countering the negative impact of disinformation and ensuring a human rights-based response to take place at the 50th Session of the UN Human Rights Council in June 2022.
In this statement, ARTICLE 19 highlights the key aspects of the resolution and provides recommendations for further steps that States should take to ensure protection of the right to freedom of expression when addressing disinformation.
Importantly, this resolution is adopted amid other initiatives on countering disinformation across the UN. This includes a commendable report by the UN Special Rapporteur, the joint declaration on freedom of expression and “fake news”, disinformation and propaganda by UN and regional freedom of expression rapporteurs in 2017, a resolution led by Pakistan at the UN General Assembly, and an upcoming report by the UN Secretary General. We call for synergies between these different initiatives and a standard approach to countering disinformation that embraces the right to freedom of expression across the UN.
Holistic Measures
ARTICLE 19 welcomes that the resolution includes strong language on holistic, positive measures on countering disinformation. These measures contribute to flourishing information ecosystems and allow disinformation to be checked and challenged before it can cause harm in societies.
ARTICLE 19 has long asserted that positive measures that embrace the right to freedom of expression are the best way to counter disinformation. The resolution shares this approach and rightly recognises “the importance of safeguarding free, independent, plural and diverse media [and] of ensuring the safety of journalists and media workers online and offline” in the fight against disinformation. The media plays a primary role in countering disinformation, including by facilitating the free flow of information and challenging corruption and falsehoods. Despite this, journalists and media workers are under increasing threat for conducting their vital work, with attacks against them too often leading to impunity, exacerbating the spread of disinformation.
The resolution also emphasises the role of governments in “promoting access to diverse and reliable information to counter disinformation, including by increasing their own transparency [and] proactively disclosing official data online and offline”. The implementation of comprehensive right to information laws, including by complying with the principle of maximum disclosure of information and by proactively releasing information of public interest, is essential to the democratic functioning of societies and is invaluable in our fight against discrimination. While 90% of the world’s population lives in a country with a right to information law, many of these laws are not properly implemented or fall short of international standards, contributing to the spread of disinformation.
We urge States to follow this approach of the resolution and combat disinformation through holistic, positive measures, including by ensuring a diverse, free and independent media environment, protecting journalists and media workers, and implementing comprehensive right to information laws. Alongside this, they should incorporate media and digital literacy lessons into school curriculum and engage with civil society and social media platforms on similar efforts. States should also support civil society and the media in efforts to tackle disinformation.
Importantly, State authorities should ensure that they do not spread disinformation, and governments should abandon intentional propaganda or disinformation campaigns.
Censorship
We also welcome that the resolution rejects measures that rely on censorship as a means of countering disinformation. These measures are not only fundamentally at odds with international human rights obligations, but ultimately facilitate the spread of disinformation throughout societies.
The resolution adds to international standards by stressing that “condemning and countering disinformation should not be used as a pretext to restrict the enjoyment and realisation of human rights or to justify censorship, including through vague and overly broad laws criminalising disinformation”. We have documented these disinformation laws be used in many contexts to harass and detain scores of journalists and media workers, human rights defenders, and other civil society actors. We note how laws criminalising disinformation or vague concepts such as “false news” are inherently out of line with international standards. In particular, the falsity of information in itself is never a legitimate basis for restricting the right to freedom of expression.
The resolution also follows other UN resolutions by “strongly condemning the use of Internet shutdowns” as a means of countering disinformation. Worldwide, there is a growing trend of States resorting to Internet shutdowns and other censorship measures as a response to disinformation, such as website blocking and filtering, network throttling, or disruptions to mobile services. These measures not only severely suppress the right to freedom of expression, but facilitate the spread of disinformation by denying the free flow of information and hampering fact-checking efforts.
We urge States to be attentive to this new language and refrain from adopting new legislation criminalising disinformation or repeal or substantially amend existing laws. States should ensure that any laws related to disinformation and narrowly construed to protect one of legitimate aims under Article 19(3) and Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) and are proportionate to the aims sought. States should also refrain from reliance on criminal prosecution and other coercive measures as a primary means of combating disinformation – criminal proceedings and custodial sentences should be reserved for the most serious form of speech-related crimes. Outside cases that fall within this narrow category, authorities should drop charges against all individuals currently facing charges for disinformation, and release from prison those already imprisoned on similar grounds. We also urge States to immediate cease Internet shutdowns and all other restrictions.
Social Media Companies
We appreciate that the resolution not only focuses on State responses to disinformation, but also highlights the role of social media companies in minimising disinformation online.
The resolution invites States to “encourage business enterprises, including social media companies, to address disinformation while respecting human rights, including through the review of business models, in particular the role of algorithms and ranking systems in amplifying disinformation”. We believe that addressing disinformation on social media platforms must be seen in the context of overall problems of their business models and deficiencies in algorithmic curation practices, where each social media user is only exposed to a subset of the vast amount of sources and viewpoints available online.
We encourage dominant social media to articulate clear policies governing disinformation on their platforms in line with international human rights standards. In particular, they should articulate clear and easily understood policies governing disinformation on their platforms in line with international freedom of expression standards. They should also be transparent about the enforcement of these policies, including this into periodic transparency reports, which should be complete and comprehensive. Social media platforms should also leverage partnerships to combat various forms of disinformation, and modify their business models that allows disinformation flourish on their platforms.
Looking Forward
While the resolution takes the right approach overall and contains strong language pertaining to the right to freedom of expression, we regret certain elements of the text.
The resolution reaffirms that “the exercise of the right to freedom of expression carries with it special duties and responsibilities”. This language is distracting in a resolution which otherwise strikes the right approach. While this is a reference to Article 19(3) of the ICCPR, we think it is problematic to invoke restrictions to the right to freedom of expression in the context of this resolution in particular as disinformation or speech being “false” in itself is never a legitimate basis of restricting the freedom of expression. We are concerned that such language could be misinterpreted to allow further censorship in the name of countering disinformation.
The resolution also includes language on incitement to discrimination, hostility and violence in two preambular paragraphs. While we share concerns about incitement and agree that a narrow subset of disinformation may constitute incitement, we are very cautious about blurring the lines between these two concepts in a resolution. These are distinct phenomena and require very different legal and policy responses. Whereas disinformation should be tackled through holistic, positive measures, incitement can be prohibited by law.
We encourage future initiatives on this subject to refrain from invoking any language on restrictions to the right to freedom of expression and to maintain a narrow focus on countering disinformation instead of other concepts.