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    The Right to Freedom of Expression

    Module 1: General Overview of Trends in Digital Rights Globally and Expected Developments

    Recent trends indicate that the most significant threat to freedom of expression is the criminalisation of online speech.  Criminalisation is effected through the enactment of laws which are generally vague and broad and give governments a wide range of powers to declare certain forms of online expression as offences.  The Council of Europe, in its 2019 Report on threats and attacks against media freedom in Europe, found that journalists, in particular, are facing these challenges.  It noted that in Turkey, more than 200 journalists have been arrested or detained on account of their publications.

    Efforts to address disinformation

    The Independent High-level Group on Fake News and Online Disinformation recorded that spreading of false, inaccurate, or misleading information that is designed to intentionally cause harm or generate profit continues to be one of the significant threats to freedom of expression.  The World Economic Forum noted that in 2013 the terms “fake news” and “post-truth” began gaining traction.  However, with Brexit and the election of Donald Trump, the “prevalence and impact of digital wildfires have surged”, with some instances of fake news stories outperforming legitimate stories from primary news sources.

    Disinformation continues to poison the digital sphere creating serious risks for freedom of expression as states tighten controls.  In 2018 Freedom House reported:

    • Global internet freedom has persistently declined since 2010.
    • Nearly 20 countries had enacted or proposed legislation that would criminalise the spreading of false news.  (The Washington Post reported that Singapore, Nigeria and Ethiopia have recently followed suit.)

    It is predicted that in the run-up to the upcoming 2020 US elections, disinformation will again reach new heights.(1)

    The Protection from Online Falsehoods and Manipulation Act (POFMA), enacted in Singapore in 2019, seeks to prevent the communication of false information and to suppress support for and counteract the effects of such information. POFMA further seeks to enable measures to detect, control and safeguard against coordinated inauthentic behaviour. POFMA prohibits a person who communicates a statement that is a false statement of fact, and that is likely to be (i) prejudicial to the security of Singapore; (ii) prejudicial to public health, public safety, public tranquillity or public finances; (iii) prejudicial to the friendly relations of Singapore with other countries; (iv) influence the outcome of an election; (v) incite feelings of enmity, hatred or ill-will between different groups of persons; or (vi) diminish public confidence in government. A person who contravenes these provisions is guilty of an offence and liable on conviction to a fine or imprisonment.(2

    Towards the end of 2019, the Protection from Internet Falsehood and Manipulation Bill 2019 was tabled in Nigeria. The Bill seeks to prohibit a long list of statements including false statements of fact and statements that are likely to be prejudicial to the country’s security, public health, public safety, public tranquillity or finances. Statements that prejudice Nigeria’s relations with other countries, influence the outcome of an election or referendum, incite feelings of enmity, hatred towards a person, or ill will between a group of persons will also be monitored, and those who utter such statements will be liable to fines and, possibly, imprisonment.(3)

    Ethiopia has recently criminalised disinformation with the adoption of a new law that seeks to increase jail sentences and fines for hate speech and the dissemination of disinformation.(4)

    If the start of 2020 is anything to go by, there are major concerns for the continued spread of disinformation. Reports are emerging that disinformation about the Coronavirus is spreading faster than the virus itself.(5) The spreading of false news around the coronavirus has been labelled as an “infodemic” according to the World Health Organisation.(6) Social media platforms are playing an active role in trying to redirect the spread of the infodemic by encouraging users to visit legitimate sites such as the World Health Organisation.(7)

    However, despite the alarming and current rise of disinformation, there is some comfort in knowing that there are organisations, institutions and states making a concerted and decisive effort to address this unfortunate and harmful trend.

    Positive resources and examples for overcoming disinformation challenges

    • UNESCO developed a “Journalism, fake news & disinformation: handbook for journalism education and training”.
    • The European Union has published its “Code of Practice on Disinformation”.
    • Harvard is assisting people with “4 Tips for Spotting a Fake News Story”.
    • Infographics are being designed to assist people with disinformation detection.
    • InterAction released a toolkit to assist people with preparing for online disinformation threats.
    • In Finland, schools and community colleges are introducing lessons on disinformation to inform people at a young age about disinformation and how to guard against it.

    African Court engaging with issues regarding false news

    The East African Court of Justice in Media Council of Tanzania and Others v Attorney-General of the United Republic of Tanzania and the Court of Justice of the Economic Community of West African States in Federation of African Journalists and Others v The Republic of The Gambia have ruled in favour of upholding the fundamental right to freedom of expression and have called for the repeal of vague and broad provisions that seek to stifle freedom of expression.

    There is a corresponding trend that is seeking to overcome disinformation threats through education, awareness and dialogue.  Despite negative forecasts, the rise of digital activism can play a critical role in rerouting the current trajectory.

    Efforts to address hate speech

    The 2019 UN Strategy and Plan of Action on Hate Speech advises:

    “Around the world, we are seeing a disturbing groundswell of xenophobia, racism and intolerance – including rising anti-Semitism, anti-Muslim hatred and persecution of Christians. Social media and other forms of communication are being exploited as platforms for bigotry.  Neo-Nazi and white supremacy movements are on the march. Public discourse is being weaponised for political gain with incendiary rhetoric that stigmatises and dehumanises minorities, migrants, refugees, women and any so-called ‘other’.”

    There is undoubtedly a need to counteract the above groundswell.  However, states are quickly turning to criminalisation to address this, rather than addressing the systemic issues of perceptions, ignorance, privilege and inequality.

    Similar justifications and repressive legislation have been seen in response to hate speech.  Many of the laws discussed above that target disinformation also target hate speech.  The Internet Health Report reported that Germany has recently enacted legislation that seeks to decrease hate speech online.  South Africa has been in the process of adopting the Prevention of Combating of Hate Crimes and Hate Speech Bill that aims to prevent and combat hate crimes and hate speech.

    There are also growing practices encouraging states to move away from sanctions and prohibitions towards more positive measures.  ARTICLE19 emphasises that states should engage with the symptomatic causes of hate speech rather than adopting a singularly punitive approach.  The 2019 UN Strategy and Plan of Action on Hate Speech seeks to focus on the root causes and drivers of hate speech and seeks to ensure effective responses.  The plan lists a variety of commitments, including:

    • Monitoring and analysing hate speech.
    • Engaging and supporting the victims of hate speech.
    • Convening relevant actors.
    • Engaging with new and traditional media.
    • Using education as a tool for addressing and countering hate speech.
    • Fostering peaceful, inclusive and just societies to address the root causes and drivers of hate speech.
    • Developing guidance for external communications.

    Continued disinformation and the promotion of hateful speech should be anticipated.  However, there are parallel pushes to engage more meaningful and substantively with hate speech and find ways that address hate speech without limiting freedom of expression.

    Harassment of journalists, bloggers and other professionals

    The UN reported:

    “In just over a decade, more than 1,000 journalists have been killed while carrying out their work.  In nine out of 10 cases, no one was held accountable.  Last year alone, the UN agency advocating for freedom of the press, UNESCO, reported that at least 99 journalists were killed and thousands more were attacked, harassed, detained or imprisoned on spurious charges, without due process.  Women journalists are often at greater risk of being targeted, including through online threats of sexual violence.”

    Journalists fulfil an important role in any society but are often at risk.  UNESCO’s 2018 Report on trends in the safety of journalists notes that there has been a marked increase over the last decade in the frequency and regulatory harassment of journalists, bloggers and other professionals.  Comprehensive statistics are available which illustrate the challenges faced by journalists:

    A 2017 Reporters without Borders study by the Council of Europe indicated that:

    • 31% of journalists water-down their coverage of stories after being harassed.
    • 15% of journalists drop the story.
    • 23% of journalists don’t cover specific stories.
    • 57% of journalists do not report that they have been the targets of online violence.

    The UN reported that women are facing increased challenges.  It has been recognised that “[o]ver the past 15 years there has been ‘a marked increase’ in cyber harassment, making the safety of women journalists a significant issue for reportage in today’s digital era.”

    The Council of Europe found that within the first two months of 2020, the following alerts have been raised:

    • Slovak Columnist Charged with Criminal Defamation for Criticism of Priest.
    • Head of the Russian Republic of Chuvashia says Critical Journalists Should be “Wiped Out”.
    • Threats and Insults against Female Journalists.
    • Arson Attack against Newspaper.

    The harassment of journalists is a global issue and remains a deeply entrenched problem.  UN bodies are calling for protection, and civil society actors are assisting where they can.  Still, there needs to be a far more concrete and legitimate effort, particularly by states, to ensure the safeguarding of journalists.

    Footnotes

    1. The Atlantic, ‘The Billion-Dollar Disinformation Campaign to Re-elect the President:
      How new technologies and techniques pioneered by dictators will shape the 2020 election’ (2020) (accessible at https://www.theatlantic.com/magazine/archive/2020/03/the-2020-disinformation-war/605530/).
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    2. Protection from Online Falsehoods and Manipulation Act, 2019 (accessible at https://sso.agc.gov.sg/Acts-Supp/18-2019/Published/20190625?DocDate=20190625). Back
    3. Al Jazeera ‘Nigerians raise alarm over controversial Social Media Bill’ (2019) (accessible at https://www.aljazeera.com/news/2019/12/nigerians-raise-alarm-controversial-social-media-bill-191218130631539.html). Back
    4. Al Jazeera, ‘Ethiopia passes controversial law curbing ‘hate speech’ (2020) (accessible at https://www.aljazeera.com/news/2020/02/ethiopia-passes-controversial-law-curbing-hate-speech-200213132808083.html). Back
    5. Washington Post, ‘The coronavirus is spreading rapidly. So is misinformation about it’ (2020) (accessible at https://www.washingtonpost.com/health/2020/02/10/coronavirus-is-spreading-rapidly-so-is-misinformation-about-it/). Back
    6. BBC News ‘WHO says fake coronavirus claims causing ‘infodemic’’ (2020) (accessible at https://www.bbc.com/news/technology-51497800). Back
    7. Id. Back