Legality of Free Speech During a Pandemic

By: Jack Burgess

Jack Burgess is a first-year in the College of Arts and Sciences at the University of Pennsylvania who plans to study International Relations, with minors in International Development and Legal Studies and History. 
​
The sudden emergence of the Coronavirus pandemic in January of 2020 caught leaders and citizens off guard. Many governments acted rashly in response to this pandemic. With limited knowledge and context, they attempted to quell the spread of the pandemic by employing cutting edge technologies. Eighty-three of such governments challenged freedom of speech by justifying its restriction as COVID-19 safety measures [2]. Authorities in various nations around the world have attempted to restrict the dissemination of information via social media and prevent peaceful protests. They have attacked protestors and detained and prosecuted those who chose to exercise their freedom of expression and association [2]. Vague laws have been established across nations coming from federal bodies such as the Turkish Radio and Television Supreme Court and the Egyptian Supreme Court for Media Regulation [8]. This article will address the legality of these actions orchestrated by governments censoring social media, mitigating misinformation, and more in the name of public health. It will analyze how governments’ actions have challenged the United States’ first amendment or international law. Particularly, it will address both the International Covenant on Civil and Political Rights and S. 2248, the Health Misinformation Act. It will discuss the nation's adherence to this Covenant and the  constitutionality of S. 2248., uncovering the fine line between public health measures and freedom of speech which was blurred during the panic of the COVID-19 pandemic. 

What did foreign nations do to mitigate the spread of COVID-19?

Experts express that the implementation of public tracing acts and complex technologies to help manage the spread of COVID-19 must be a joint trust agreement between citizens and governments, rather than superimposed by the latter [1]. For instance, South Korea designed a comprehensive system of testing, contact tracing, and quarantines, supported by user-friendly technology and data analytics [3]. Authorities were allowed access to private information like medical records, banking records, mobile phone location data, and closed-circuit television [3]. South Korea’s system, which employed complex data analytics, depended heavily on public buy-in and trust which was achieved through transparency between the government and its citizens [3]. Also, South Korean authorities have history on their side, as seen in the outbreak of the Middle East Respiratory Syndrome in 2015 – another coronavirus – which prepared them to navigate another epidemic [3]. 

Many other nations did not display such transparency with their citizens. Instead, they did quite the opposite. Governments employed firewalls and wielded influence in the tech realm to lock legitimate websites, remove unwanted content that did not align with the national dialogue, and shut down internet services completely in some areas [8]. China, known for its notorious intervention in their domestic ChainaNet, banned over 2,000 keywords related to the pandemic such as Lǐ Wénliàng 李文亮, a famous Chinese whistleblower early in the pandemic, on communication platforms for WeChat and streaming platform YY [8]. Egypt’s Supreme Court of Media Regulation and Turkish President Erdogan enacted similar measures including blocking sources that questioned the human rights of their COVID-19 precautions or reprimanding individuals who shared social media posts that contained information deemed “provocative” or “abusive” [8]. 

Does international law govern technological censorship by regimes?

The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations on December 16, 1966 [7]. It commits parties to respect the civil and political rights and liberties of individuals such as basic freedoms outlined in the United States Bill of Rights. Some include the right to life, freedom of religion, freedom of speech, freedom of assembly, among many more. Article 19 commits social media companies, online platforms of free expression, and domestic laws governing the internet to define freedom of expression as a core constraint and mission [7]. Additionally, Article 20(2) states that any “advocacy of national, racial, or religious hatred” will be deemed hate speech and, thus, prohibited by law [7]. All 173 nation-states who have become parties to the Covenant must adhere to these rules– including the United States [7]. Some notable missing players in international politics who have not ratified this international law are China, Singapore, UAE, Oman, Saudi Arabia, among others [7]. Some of these commitments are made with reservations regarding certain articles or intents [7]. These laws are ambiguous and inadequate as they do not outline specific determinants of “hatred” or how governments should ensure the protection of free speech on multinational megacorporations like Facebook, Alphabet, Apple, Twitter, and Microsoft. 

In the United States, what measures have been taken to temper misinformation? 

In the 117th Congress, in the 1st Session, S. 2448: Health Misinformation Act was introduced on July 22, 2021. It was a collaborative effort between Senator Amy Klobuchar (D) of Minnesota and Senator Ben Ray Luján (D) of New Mexico [4]. It states that interactive computer service providers (social media platforms) that allow for the proliferation or dissemination of health information will be treated as the publisher or speaker of that misinformation [4]. The act deems social media platforms as the circulators of fake news and misinformation regarding the COVID-19 pandemic, claiming that its proliferation has spread at an alarming rate and has prompted disarray in society [4]. 

On paper, Klobuchar’s bill did not make it illegal for Facebook and other social media platforms to share and disseminate misinformation on COVID-19 according to the popularity algorithm of the platforms, but instead it makes the social media platform liable. The United States Department of Health and Human Services would be required to define what constituted health misinformation under this bill [6].

In practice, the bill discourages large corporations like social media platforms from facing legal liability, forcing them to create regulations on freedom of speech [6]. Previously, Facebook and other social media platforms held immunity from such a lawsuit under Section 230 of the Communications Decency Act [5]. Although not directly an infringement on the First Amendment, it in fact infringes upon the autonomy of these social media corporations and encourages them to monitor and censor their content so that they cannot be found liable during such contentious times [6]. This threatens the constitutionality of the act, as it is the first amendment that limits the ability of tech companies to dictate and moderate online forums or information [6]. In fact, there are at least 6 different ways that the Constitution limits Congress' power to limit online discussions [6].

Gerry Simpson, associate crisis and conflict director for Human Rights Watch, says “Governments should counter Covid-19 by encouraging people to mask up, not shut up. Beating, detaining, prosecuting, and censoring peaceful critics violates many fundamental rights, including free speech, while doing nothing to stop the pandemic [2].” The deterioration of human rights in times of global crisis is not what the world needs. The world needs a united front of human rights defenders and public health leaders to forge a path out of the pandemic. The fine line between public health measures and freedom of speech and association remains blurred. The solution is clear – guidance is needed to move forward from the current legal gray area. The combination of malpractice and arbitrary laws as seen around the world demonstrate the infringement of individual and technological rights by governments. This must be paid closer attention to.


The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References:
[1] Bachelet, Michelle. “OHCHR | International Day of Democracy Conference on Democracy in Times of Crisis.” www.ohchr.org, September 15, 2020. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26235&LangID=E.
[2] “Covid-19 Triggers Wave of Free Speech Abuse.” Human Rights Watch, February 11, 2021. https://www.hrw.org/news/2021/02/11/covid-19-triggers-wave-free-speech-abuse.
[3] Dyer, Paul. “Policy and Institutional Responses to COVID-19: South Korea.” Brookings, June 15, 2021. https://www.brookings.edu/research/policy-and-institutional-responses-to-covid-19-south-korea/.
[4] Klobuchar, Amy. “Text - S.2448 - 117th Congress (2021-2022): Health Misinformation Act of 2021.” www.congress.gov, July 22, 2021. https://www.congress.gov/bill/117th-congress/senate-bill/2448/text.
[5] MacCarthy, Mark. “Senator Amy Klobuchar Seeks to Quell Health Misinformation on Social Media.” Brookings, July 27, 2021. https://www.brookings.edu/blog/techtank/2021/07/27/senator-amy-klobuchar-seeks-to-quell-health-misinformation-on-social-media/.
[6] Manjoo, Farhad. “Opinion | Facebook Is Bad. Fixing It Rashly Could Make It Much Worse.” The New York Times, October 27, 2021, sec. Opinion. https://www.nytimes.com/2021/10/27/opinion/facebook-regulation-section-230.html.
[7] Samples, John. “International Law and ‘Hate Speech’ Online.” Cato.org, July 23, 2020. https://www.cato.org/blog/international-law-hate-speech-online.
[8] Shahbaz, Adrian, and Allie Funk. “Information Isolation: Censoring the COVID-19 Outbreak.” Freedom House, 2020. https://freedomhouse.org/report/report-sub-page/2020/information-isolation-censoring-covid-19-outbreak.