27 April 2020, 9:15 a.m.
(Disponible en français : Défis associés à la liberté d’expression et à l’accès à l’information en temps de pandémie : points de vue national et international)
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.
– Universal Declaration of Human Rights (1948), Article 19.
One aspect of the COVID-19 pandemic is the overwhelming amount of information generated by commentators with good and bad intentions. The World Health Organization has described the abundance of both accurate and inaccurate information on the crisis as an “infodemic” that could jeopardize the public’s ability to discern what sources of information are reliable.
In response to this infodemic, many voices have been calling on states to legislate against misinformation and disinformation. However, this has led others to fear that freedom of expression will become compromised.
This HillNote provides information on freedom of expression in international law, and the impact of COVID-19 on this right internationally and in Canada.
1. Freedom of Expression in International Law
The right to freedom of expression is an internationally recognized fundamental human right. It includes both the right to express and disseminate information, as well as the right to receive information. It is recognized in numerous international instruments, including the legally binding International Covenant on Civil and Political Rights (ICCPR), ratified by Canada.
However, the ICCPR stipulates that governments may place restrictions on the right to freedom of expression when necessary. Such restrictions must be provided by law and can only be for the protection of the rights of others, public health or morals, or national security.
In addition, Article 4 of the ICCPR allows states to derogate from certain rights, including freedom of expression, “to the extent strictly required” in times of public emergency. For more information, see the Library of Parliament HillNote, Human Rights in Emergency Situations.
Freedom of information is recognized as an integral part of the right of freedom of expression and has been defined as “both the general right of the public to have access to information of public interest from a variety of sources and the right of the media to access information.”
2. COVID-19 and Freedom of Expression Around the Globe
2.1. Disinformation and Misinformation
Since the beginning of the pandemic, inaccurate or false information has been widespread, including on topics such as the spread of the virus and its mortality rate; incorrect reports of health authorities’ and government bodies’ actions; false cures and methods to prevent the spread of the virus; and conspiracy theories about its origins.
Fearing this could lead to serious health consequences, international monitors for freedom of expression have called on governments to urgently address disinformation by providing reliable information themselves.
However, human rights groups have also raised concerns over serious infringements of freedom of expression by governments under the guise of combatting misinformation and disinformation. In the past, international monitors have maintained that prohibitions on spreading misinformation are often incompatible with international law regarding restrictions on freedom of expression as they fail to meet the requirement to be necessary and proportionate to protect the interest at issue – in this case, public health.
Regarding the COVID-19 pandemic, governments in countries such as China, Hungary, Iran and Thailand have implemented measures that risk restricting freedom of expression, including the imposition of criminal sanctions for the promotion of false information, often targeting journalists, researchers and human rights defenders. Detention of individuals for reporting on the pandemic on social media, repression of anti-government protests, and internet censorship have also been identified as problems.
2.2. Access to Information
Access to reliable information is deemed critical in responding to a global pandemic. In this context, providing accurate information on public health recommendations, the spread of the virus and actions taken by public bodies is important to preserve the right to health.
Since the pandemic requires a large part of the world’s population to remain in isolation, human rights groups maintain that access to the Internet is key to ensuring the protection of the right to freedom of information. International monitors for freedom of expression have emphasized that governments should refrain from blocking Internet access, and that broad restrictions on Internet access are not required to maintain public order or national security.
Human Rights Watch has also recommended that critical information about COVID-19 be accessible and available in multiple languages, and that special attention be provided to citizens with lower literacy levels.
2.3. Hate Speech
Another issue resulting from the COVID-19 pandemic is a potential increase in hate speech and violence targeting specific communities. The United Nations (UN) Special Rapporteur on minority issues raised concerns over reports of physical attacks against people of Asian descent, hate speech blaming minorities for the spread of the virus, and calls for denying migrants access to medical services. He called on all states to implement “firm actions… to safeguard the human rights of the most vulnerable and marginalised.”
However, broad criminal sanctions targeting hate speech could also create a chilling effect on other forms of expression. Article 19, a non-governmental organization focused on expression rights, has warned governments against creating excessive criminal penalties to prohibit hate speech. These concerns are consistent with those of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, who recommended in 2019 that countries resist criminalizing hate speech except in severe situations, such as advocacy of national, racial or religious hatred inciting discrimination, hostility or violence.
3. Situation in Canada
In Canada, freedom of expression, including freedom of the press and other media, is protected under section 2(b) of the Canadian Charter of Rights and Freedoms. However, various laws do place limitations on freedom of expression, including section 319 of the Criminal Code which prohibits the public incitement of hatred towards certain groups (i.e., hate speech). For more information, see the Library of Parliament HillNote, Freedom of Expression – A Continuing Debate.
Subject to certain exemptions, Canadians have the right to access records of federal government institutions (Access to Information Act), and the right to access their personal information held by federal government institutions (Privacy Act). The provinces and territories also have access and privacy legislations guaranteeing these rights.
In the context of COVID-19, Canada has taken measures to curb misinformation. For example, the federal government is funding several organizations working to combat COVID-19 misinformation as well as related racism and stigmatization. The Competition Bureau has issued warnings against several businesses for making false or misleading claims about their products’ efficacy in preventing or curing the virus. Legislation to prevent “dangerous misinformation,” which could lead to limits on freedom of expression, is also being considered by the federal government.
The pandemic also has an impact on the ability of all governments in Canada to process access to information requests, which could affect Canadians’ access to information rights. By prioritizing essential services and directing most of its workforce to work remotely, government institutions are encountering difficulties in keeping records of information and responding to requests for information.
In a statement, the Information Commissioner of Canada called on federal institutions to provide clear guidance on how information is to be managed during the crisis and to proactively disclose information that is of fundamental interest to Canadians.
Amnesty International, Responses to Covid-19 And States’ Human Rights Obligations: Preliminary Observations, 12 March 2020.
Cara Zwibel, “Physical Distancing Shouldn’t Preclude Public Dissent,” Canadian Civil Liberties Association, 3 April 2020.
Council of Europe Commissioner for Human Rights, Press freedom must not be undermined by measures to counter disinformation about COVID-19, 3 April 2020.
Joel Simon, “COVID-19 is spawning a global press-freedom crackdown,” Columbia Journalism Review, 25 March 2020.
Katie Bresner, Understanding the Right to Freedom of Expression: An International Law Primer for Journalists, Journalists for Human Rights and the International Human Rights Program, 2015.
Philip Mai and Ana toliy Gruzd, “We can inoculate ourselves against COVID-19 misinformation,” Policy Options, 14 April 2020.
Organization for Security and Co-operation in Europe, COVID-19: Governments must promote and protect access to and free flow of information during pandemic, say international media freedom experts, 19 March 2020.
Alexis De Lancer et al., Voici la désinformation qui circule à propos de la COVID-19 [available in French only], Radio-Canada, 31 March 2020.
Authors: Laurence Brosseau and Alexandra Smith, Library of Parliament
Categories: COVID-19, Information and communications, Law, justice and rights