Information as a “perishable commodity” during the COVID-19 pandemic

The Bonavero Institute of Human Rights, in partnership with UNESCO and the Reuters Institute for the Study of Journalism (Department of Politics and International Relations, University of Oxford), hosted a webinar on 22 June 2020 on the “Legal challenges related to freedom of expression amid the COVID-19 pandemic”.
The webinar forms part of a series of webinars for judicial operators on legal challenges related to freedom of expression in relation with the COVID-19 pandemic. It was moderated by Prof. Kate O’Regan, former judge of the South African Constitutional Court, and current Director of the Bonavero Institute. The webinar brought together experts from regional human rights courts and academics, to discuss the challenges for freedom of expression, access to information, privacy and related rights posed by measures adopted by governments around the world in response to the COVID-19 pandemic.

Joan Barata, from the Center for Internet and Society and the Cyber Policy Center (Stanford University), emphasized how internet shut-downs are particularly harmful in the context of safeguarding freedom of expression and access to information, and they cannot be justified by a health crisis. Mr. Barata added that it is imperative during these times if countries are to institute ‘state of emergency’ powers, that other freedoms, i.e. the freedom of journalists and media, should not be curtailed in any respect. He continued by saying that declarations of state emergency can also be subjected to the control of the judiciary, especially in by national courts or regional human rights courts. Within this framework, the role of the judiciary is vital if we are to ensure the respect of freedom of expression, notably in the context of a public health crisis.

The participants underscored the crucial role the authorities play in disseminating accurate information to the general public to promote the right to access to information. Justice Edward Asante, President of the Economic Community of West African States (ECOWAS) Court of Justice, notably recalled the jurisprudence of the ECOWAS Court of justice in this regard and underlined the legal instruments – notably the African Charter on Human and Peoples’ Rights (1986), and the Revised ECOWAS Treaty (1993) – guaranteeing the protection of freedom of expression. In addition, the right to seek and obtain information is notably guaranteed in Article 10 of the European Convention on Human Rights. Indeed, Judge Darian Pavli, from the European Court of Human Rights, emphasized the fact the “information is a perishable commodity” and that, in the context of a pandemic, access to accurate and timely information can help save lives. To that effect, the panellists emphasized the need for governments to implement and strengthen access to information laws, for instance by establishing access to information commissions provided by international law.

In addition, the panellists also discussed the important topic of disinformation, or “fake news” during the pandemic. Indeed, UNESCO has highlighted that the pandemic was also accompanied by a “disinfodemic”, and the panellists discussed the role of online platforms in disseminating misleading or inaccurate news. However, they cautioned against laws that would aim at regulating the spread of disinformation on online platforms, which could prompt them to over-censor and would thus have a negative impact on freedom of expression. Delegating the very sensitive task of deciding what is legal and what is not to a platform, especially to small platforms who do not necessarily have the appropriate resources, could lead them to decide to pre-emptively block some information to avoid any risks.

Jennifer Robinson, Barrister at Doughty Street Chambers, highlighted as a way of conclusion the hopeful solutions offered by technology during a health-crisis, and the shift in public opinion in terms of what is expected of these major platforms. “While COVID-19 has shown restrictions on open justice, it has been mitigated by technology”. She followed this with the example in the UK, which allows journalists to attend court hearings remotely. “It has not been perfect, but there are a lot of upsides”, she added. Open justice is inextricably linked to the freedom of media to report on court proceedings, which is vital to preserve democratic order.

The webinar was organized in partnership with the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights, the ECOWAS Court of Justice and benefited from the support of Open Society Foundations. It follows many of UNESCO’s activities which support the role security forces and the judiciary have in protecting and ensuring an environment conductive to freedom of expression, access to information and other fundamental freedoms. To date, more than 17,000 judicial operators and representatives of civil society from Latin America and Africa have been trained on these issues through a series of Massive Open Online Courses (MOOCs), on-the-ground training and workshops, and the publications of a number of toolkits and guidelines.

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