As the pandemic advances and affects almost all spheres of social life, it simultaneously poses a number of risks that affect not only UK citizens but those around the globe as well. As Coronavirus has had a truly life-changing impact on our everyday routines it has presented a great challenge to human rights, but more particularly the freedom of expression. A number of international organisations, including UNESCO United Nations Educational, Scientific and Cultural Organisation (‘UNSECO’) and accompanying ones have created reports and guidelines that aim at ameliorating the access to information and United Nations Human Rights Council objectives. As national authorities continue to declare states of emergency that result in serious restrictions of fundamental rights, it is crucial to trace and comment on possible inconsistencies with the International Human Rights Law (Spadaro, 2020). This is undoubtedly a growing legal challenge, that presumably will not cease to exist even if when legislative and executive forces decide to end the current constraints imposed on citizens.
Covid-19 and Human Rights
As a consequence of war-like responses to the current pandemic, billions of people around the world have been put under some sort of lockdown. Concerns about the impact of such restrictions, which scale to an extent that was previously unprecedented in the democratic countries (Spadaro, 2020), have been raised by the United Nations (‘UN’) and other human rights experts. The pandemic is putting an unusual strain on human rights due to the overreach of the executive powers (Spadaro, 2020). For example, the enjoyment of personal freedom was largely restrained by the imposition of mandatory quarantine or the prohibition of gatherings. The limitation on freedom to manifest one’s belief and religion (Article 9 of the European Convention on Human Rights and Article 18 of the International Covenant on Civil and Political Rights) was affected by the closure of the places of worship. These measures may be recognized as just in light of their effectiveness in addressing the pandemic, including action targeted at full and complete containment of the virus. Yet, the point of legality may be raised - a majority of the restrictions severely interfere with a number of mentioned human rights.
On the other hand, it can be argued, that the pandemic primarily underlines the necessity of upholding the rights to life and health in order for a “normal life in a democratic society to be preserved” (Spadaro, 2020) and to eventually secure our full human rights and personal freedoms. This is a clash that is subjected to a balancing act’ as authorities are forced to prioritize the protection of a distinct set of freedoms and choose between reducing the spread of influenza-like diseases and protecting other internationally recognized rights.
UNESCO guidelines on the promotion and protection of the freedom of expression
Following a webinar that was addressing a number of legal challenges that was organized by UNESCO, Knights Center for Journalism in the Americas, and the Reuters Institute for the Study of Journalism, the United Nations decided to publish a set of guidelines that refer specifically to misinformation and restrictions on freedom of expression. Within the guidelines, one can find the recommendation to implement measures aimed at countering disinformation. Among those, UNESCO encourages all UN member states to introduce a solid system of checks and balances in order to prevent the arbitrary abuse of the freedom of expression. The main challenges to the freedom of expression and freedom of information are disruptions, either temporary or permanent, in access to information held by public authorities, limitations in access to the internet, threats to the safety of media and journalists, and illegitimate collection of individual health data and other private information. Subsequently, the challenge for the justice system is that in such cases, guaranteeing the protection of human rights (including freedom of expression) is to be considered and urgently declared as an absolute priority. In relation to this, the UN Special Rapporteur on the Independence of Justice and Lawyers.
Legal answer to implementation of the state of emergency
According to commonly agreed provisions of international law, in times of severe public emergency, which threatens the life of the nations, states may take a number of measures that derogate, either fully or partially, certain human rights or other convention commitments. Such provisions, enabling the limitation in scope of currently applicable human rights, are found in Article 4 of the International Covenant on Civil and Political Rights (‘The Covenant’), article 27 of the Inter-American Convention on Human Rights (‘the Inter-American Convention’), as well as in Article 15 of the European Convention on Human Rights (‘the European Convention’). All of the abovementioned refer to a situation of emergency, whereby any state can adopt such measures that derogate particular rights. Additionally, the UN provided General Comment number 29 (‘the Comment’) which refers directly to the issue of emergency within the framework of the above Article 4. Provisions that relate directly to the current context include the fact that in situations of armed conflict or another such emergency each state should carefully “consider the justification and reasons why such a measure is necessary and legitimate in the circumstances” (General Comment, 2001). Additionally, some of the provisions in the International Covenant on Civil and Political Rights ‘cannot be subjected to derogation in any case’ (General Comment, 2001). These articles include Article 19 - protecting the freedom of expression. The General Comment specifically states that Article 19 of the Covenant ‘cannot be subjected to derogations at will, even where a threat to the life of the nation exists’. Hence, states have a legal obligation to narrow all derogations to those “strictly required by the exigencies of the situation” (General Comment, 2001).
In reply to that, the Human Rights Committee has adopted, on 24th April 2020, a specific statement on derogations from the Covenant in connection with the Covid-19 pandemic (Statement on derogations, 2020). It states specifically that “freedom of expression and access to information and civic space, where a public debate can be held, constitute important safeguards for ensuring that states resorting to emergency powers in connection with the Covid-19 pandemic comply with their obligations under international and regional human rights standards” (Statement on derogations, 2020). Eventually, on the 14th of July 2020, the United Nations Human Rights Council (‘UNHRC’) has adopted a Resolution that requires all member states to “refrain from using public health laws to restrict the right to freedom of opinion and expression in ways that are contrary to their obligations under international law, including by ensuring that all measures taken to counter threats related to public health are in full compliance with international human rights obligations.” (Resolution, 2020). With these means, it has been shown that national courts and judges must play a fundamental role in reviewing the mentioning governmental decisions and protect the aforementioned freedom of expression, as defined in Article 19 of the International Covenant. On the other hand, it can be said that judicial institutions should not unreasonably intervene in matters that imply the potential conflict of interests in International Covenant provisions. Namely, in current pandemic circumstances, Article 6 of the Covenant which recognizes the inherent right of every person to life, adding that this right “shall be protected by law” clearly contradicts with the aforementioned Article 19.
The ‘disinfodemic’
UNESCO along with accompanying UN bodies, including the World Health Organization (‘WHO’), highlighted that “the right message at the right time from the right messenger through the right medium can save lives”. This essentially means that WHO specifically condemns the spread of misinformation about the medical facts that make it difficult to distinguish information from disinformation. This problem is not new; yet, it has now become even more relevant than before. UNESCO has given criteria and principles that need to be considered by state actors or individuals when dealing with such content. One of those implies that governments shall ensure that they “disseminate reliable and trustworthy information, including matters of public interest” (UNESCO, 2020). UNESCO has also warned that “falsehoods have spread as fast as the virus itself” (UNESCO, 2020). Eventually, a number of international agents that take part in monitoring human rights have emphasized that judges and other judicial operators shall introduce and promote measures that combat disinformation. They must act as authority figures that denounce the phenomenon of such disinformation and review the actions aiming at promoting and publishing reckless claims about the origins of the virus and other harmful assertions.
The role of the judicial operators
All signatories of the International Covenant, as well as of the European Convention, have an obligation, under human rights law, to tackle the Covid-19 pandemic. (Spadaro, 2020) However, they are likewise obliged to limit possible interferences with a number of recognized human rights. Therefore, following UNESCO recommendations, national courts and judges shall serve as the first instance in the protection of aforementioned human rights and play a fundamental role in reviewing the decisions. It is imperative to guarantee that the judiciary will provide the public with the proper legal guidance so that unnecessary interferences into the sphere of personal freedoms are avoided in democratic states. That is the only way in which judicial operators can guarantee that international standards on the freedom of expression are fully respected.
A piece by Marta Stępniewska
[1] European Convention on Human Rights, [online]. Available at: https://www.echr.coe.int/documents/convention_eng.pdf, [Accessed 12th January 2021].
[2] General Commen No. 29. States of Emergency CCPR/C/21/Rev.1/Add.11 [online]. Available at: https://digitallibrary.un.org/record/451555?ln=en [Accessed 12th January 2021].
[3] International Covenant on Civil and Political Rights, [online]. Available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [Accessed 12th January 2021].
[4] Inter-American Convention on Human Rights [online]. Available at:
https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm [Accessed 12th January 2021].
[5] Resolution of the United Nations Human Rights Council on Freedom of Expression A/HRC/44/L.18/Rev.1 [online]. Available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/G20/180/77/PDF/G2018077.pdf?OpenElement. [Accessed 12th January 2021].
[6] Spadaro, A. (2020). COVID-19: Testing the limits of human rights. European Journal of Risk Regulation, 2020 (2), [online] Available at: https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/article/covid19-testing-the-limits-of-human-rights/DED8334F9C1D793ACDB43054A2A9F19C [Accessed 12th January 2021].
[7] Statement on derogations form the Covenant in connection with the COVID-19 pandemic, Human Rights Committee [online]. Available at: https://www.ohchr.org/Documents/HRBodies/CCPR/COVIDstatementEN.pdf [Accessed 12th January 2021].
[8] United Nations Educational, Scientific and Cultural Organization. The role of judicial operators in the protection and promotion of the right to freedom and expression. Guidelines. [online]. Available at: https://unesdoc.unesco.org/ark:/48223/pf0000374208 [Accessed 12th January 2021].
[9] United Nations Human Rights office of the High Commissioner rapport on Coronavirus emergency: challenges for the justice system [online]. Available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25810&LangID=E [Accessed 12th January 2021].