The COVID-19 pandemic is the health crisis of the century, and states are legally obliged to take measures to contain the spread of the virus and save people’s lives. 1The authorities are under obligation, pursuant to Article 2 of the European Convention, to take measures to protect the right to life. See, Budayeva and Others v. Russia, nos. 15339/02 and 4 others, ECHR 2008. As well as the challenges related to public health, the situation is exacerbated by the rapid growth of COVID-19-related misinformation (fake news).
Misinformation endangers people’s health and lives. 2‘UN Tackles ‘Infodemic’ of Misinformation and Cybercrime in COVID-19 crisis’ (31 March 2020), accessed 28 July 2020. States have to take appropriate measures to mitigate the effects of COVID-19 misinformation. While some states have decided to suppress misinformation by providing accurate information from trusted sources, 3OSCE, ‘Human Dimension Commitments and State Responses to the Covid-19 Pandemic’ (OSCE Office for Democratic Institutions and Human Rights (ODIHR) 2020) 5, 55. others have responded with a heavy hand and introduced major restrictions to freedom of expression. 4Article 19, ‘Viral Lies: Misinformation and the Coronavirus’ (March 2020), accessed 15 July 2020. In general, state responses to COVID-19 misinformation can be divided into three groups: criminal measures, content removal and awareness campaigns. While the circulation of trustworthy information by states is seemingly uncontroversial, restrictive measures can potentially be deemed an unjustified interference with the right to freedom of expression.
In this article, we will focus on the criminal measures introduced by states. We argue that the general prohibition of COVID-19 misinformation is largely incompatible with the principles of legality and necessity in a democratic society, in accordance with Article 10 of the European Convention on Human Rights (ECHR, Convention). To support this argument, we will refer to the prohibition of COVID-19 misinformation in Russia and Serbia. Both countries have deployed criminal legislation to prevent the spread of COVID-19 misinformation. Russia has introduced a new law, while Serbia has used existing criminal legislation. In the first part of this article, we will briefly map out the general rules governing state interference under Article 10 of the ECHR. Then, using the examples of Russia and Serbia, we will consider whether the general prohibition of COVID-19 misinformation is compatible with the case-law of the European Court of Human Rights (the Court).
Limitation of information and misinformation under Article 10 of the European Convention on Human Rights
Freedom of expression is a fundamental right, but it is not absolute and it can be restricted. 5Toby Mendel, Freedom of Expression: A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights (Council of Europe 2012) 2. In general, interference with freedom of expression can be justified only if it satisfies the three-step test, namely interference should be prescribed by law, intended for one or more of the legitimate aims set out in Article 10(2), and should be necessary in a democratic society. 6European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950) ETS 5, Art 10(2); Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave 2018) 96; Mariya Alekhina and Others v Russia, no. 38004/12, para 199, 17 July 2018. We will now briefly outline the principle of legality and necessity in a democratic society.
With regard to the ‘prescribed by law’ criterion, the Court has two standards that should be satisfied for a regulation to be considered as law in accordance with Article 10 of the ECHR: accessibility and foreseeability. 7The Sunday Timesv the United Kingdom (no. 1), 26 April 1979, para 49, Series A no. 30; Gawęda v Poland, no. 26229/95, para 39, ECHR 2002-II. Accessibility means that “the impugned measures should have a basis in domestic law.” 8Tolstoy Miloslavsky v the United Kingdom, 13 July 1995, para 37, Series A no. 316-B. Foreseeability requires that law should be “formulated with sufficient precision to enable them [people] – if need be, with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” 9Ibid para 37. So, all restrictions of COVID-19 misinformation should be prescribed by law and this law should explain clearly how to identify misinformation and whether all types of misinformation are restricted.
Any limits to freedom of expression which are prescribed by law and pursue one of the legitimate aims should also be ‘necessary in a democratic society’. 10Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave 2018) 98. The Court’s interpretation of this standard involves the obligation of a respondent state to show that its actions were motivated by the existence of ‘pressing social need’. 11Handyside v the United Kingdom, 7 December 1976, para 48, Series A no. 24. The Court has considered the question of misleading information in relation to three distinct areas: (1) defamation cases; 12Lindon, Otchakovsky-Laurens and July v France [GC], nos. 21279/02 and 36448/02, ECHR 2007-IV. (2) cases related to Holocaust denial; 13Perinçek v Switzerland [GC], no. 27510/08, ECHR 2015. and (3) cases in which authorities recognised particular health information as misleading. 14Vérités Santé Pratique Sarl v France, no. 74766/01, ECHR 2001. The process of assessment of ‘pressing social need’ is conducted differently for each group of cases, but in all of them misleading information can be restricted only if it leads to significant social harm. For instance, in defamation cases “serious repercussions on the reputation and rights of individuals” 15CoE, ‘Internet: case-law of the European Court of Human Rights’ (June 2015) 20, accessed 1 August 2020. constitute significant social harm. In cases of Holocaust denial, significant social harm will occur if statements “call for hatred or intolerance.” 16Perinçek v Switzerland (n 14) para 280. Therefore, COVID-19 misinformation can be restricted only if it leads to significant social harm “of such magnitude that there is a ‘pressing social need’ to restrict such expression.” 17Marko Milanovic, ‘Viral Misinformation and the Freedom of Expression: Part I’ (EJIL:Talk, 13 April 2020), accessed 5 July 2020.
Criminal Responses to COVID-19 Misinformation
While in some rare cases the use of criminal measures can be justified, this approach raises concerns from a human rights perspective. 18Article 19 Report (n 5) 9. In this part of the article, using the examples from Russia and Serbia, I argue that the general prohibition of coronavirus ‘fake news’ is largely incompatible with the criteria of legality and necessity in democratic societies for restrictions upon freedom of expression.
Firstly, “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’” 19The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, ‘Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda’ (3 March 2017) 2 (a), accessed 7 July 2020. are incompatible with the ‘prescribed by law’ requirement. The absence of a precise definition of misinformation creates a risk of broad and subjective application of criminal provisions. 20Article 19, ‘Singapore: New law on “online falsehoods” a grave threat to freedom of expression’ (Article 19, 9 May 2019), accessed 13 August 2020.
For instance, the Serbian authorities used Article 343 of the Criminal Code to prosecute those who spread misinformation. 21‘Serbia journalist’s car tyre cut, Nova.rs says, NDNV worries about her safety’ (N1, 1 May 2020), accessed 18 August 2020. This article provides that the spreading of false news which causes panic or disturbs public order shall be punished by imprisonment of between three months and three years. 22Criminal Code of the Republic of Serbia Official Gazette of RS, Nos. 85/2005, 88/2005, 107/2005, Art 343. However, it does not explain how to identify misinformation or how to assess whether misinformation causes panic.
The fact that the general prohibition of vaguely formulated misinformation does not satisfy the principle of legality can be demonstrated by the case of Ana Lalic. Ana Lalic is a Serbian journalist who was arrested after reporting on the inadequate working conditions and lack of protective equipment in a hospital. 23Ana Lalic, ‘KC Vojvodine pred pucanjem: Bez zaštite za medicinske sestre’ (Nova, 1 April 2020), accessed 19 August 2020. As a result of her article, she was “placed in detention on suspicion of publishing texts that cause panic and disorder.” 24Article 19, ‘Serbia: Journalist Ana Lalic arrested for reporting on inadequate hospital facilities for coronavirus’ (Article 19, 2 April 2020), accessed 27 July 2020. Ana Lalic maintained that it was not misinformation, but an interview with doctors about working conditions in their hospital. 25Attila Mong, ‘Serbian reporter Ana Lalić on her arrest and detention over COVID-19 report’ (CPJ, 29 April 2020), accessed 29 July 2020. It seems that it is hard to predict what statements may constitute misinformation according to Article 343 of the Criminal Code of Serbia because it is at the discretion of the authorities to determine what information should be considered misleading. Consequently, this law is not foreseeable because it is not possible to predict what types of misleading information are within its scope.
Secondly, the general prohibition of COVID-19 misinformation is also incompatible with the principle of necessity in a democratic society. The UN special rapporteur on freedom of expression noted that “vague prohibitions of disinformation effectively empower government officials with the ability to determine the truthfulness or falsity of content in the public and political domain, in conflict with the requirements of necessity and proportionality.” 26HRC, ‘Report of the Special Rapporteur to the Human Rights Council on Disease Pandemics and the Freedom of Opinion and Expression’ (23 April 2020) U.N. Doc. A/HRC/44/49 para 49.
Turning to the Russian example, according to Article 207.1 of the Russian Criminal Code, “public dissemination of knowingly false information about circumstances posing a threat to the lives and security and/or about the government’s actions to protect the population” is punishable by a fine of up to 700,000 rubles (USD 9,300), up to a year of compulsory labour, or up to five years of imprisonment in case of dissemination of “knowingly false information of social significance.” 27Criminal Code of Russian Federation N 64-ФЗ 1996, Art 207.1. The Supreme Court of the Russian Federation indicated that misinformation should be punishable only when it poses a real danger to the public. 28Review of selected issues of judicial practice related to the application of legislation and measures to counter the spread of a new coronavirus infection (COVID-19) N1 in the territory of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation on April 21, 2020) At first sight, this wording satisfies the requirement of necessity in a democratic society, as only those actions that pose a danger to the public are punishable. However, the law does not set the criteria for what constitutes danger to the public, leaving this at the discretion of the authorities. Hence, the criminalisation of COVID-19 misinformation has become a “convenient pretext to silence critics and consolidate power.” 29Kenneth Roth, ‘How Authoritarians Are Exploiting the COVID-19 Crisis to Grab Power’ (HRW, 3 April 2020), accessed 18 July 2020.
To demonstrate that the general criminalisation of COVID-19 misinformation allows authorities to ignore the principle of pressing social need, I will use the case of Aleksey Pichugin, who was found guilty for a post on the messenger app Telegram. 30Anna Pushkarskaya, ‘Неверно понял интересы общества’. Как нижегородского журналиста приговорили за ‘фейк’ о пандемии’ (BBC Russia, 10 December 2020), accessed 17 December 2020. In April 2020, a service took place in the Diveevsky monastery, despite the threat of the spread of COVID-19. On his small Telegram channel, Pichugin wrote sarcastically that this service looked like a “act planned to infect the population.” 31Ibid. His post was a reaction to the illogical actions of the authorities who had allowed the service to go ahead during the pandemic. 32«На журналиста из Нижнего Новгорода завели уголовное дело о фейках из-за поста про коронавирус» (OVD-Info, 17 April 2020), accessed 18 December 2020. Despite the fact that this post did not cause any panic or significant social harm to the public, Pichugin was found guilty of dissemination of false information. 33Anna Pushkarshaya (n 32) The national court ruled that Pichugin “misunderstood public interest” and as a professional journalist he “had to realise the possibility of dangerous consequences.” 34Ibid.
Interference with the right to freedom of expression based on the ‘possible negative impact’ of a statement can be lawful. 35For instance, Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999-IV; Šimunić v. Croatia, no 20373/17, ECHR 2019. However, the nature of the expression, its potential effects, and the context in which it was made should be assessed before interference. 36Perinçek v Switzerland (n 14) paras 12-26. In the case of Pichugin the national court did not make this assessment. It is hard to claim that the statement was harmful by nature as it does not call for dangerous acts. In addition, it could hardly lead to harmful consequences given the small size of Pichugin’s Telegram channel and its minor public impact. Finally, the national court should have taken into account that this statement was made in a sarcastic manner. The criminal measures taken in Pichugin’s case were not proportionate. This example demonstrates that without precise criteria for what type of misinformation can lead to harmful consequences or thorough scrutiny of all details of the case by the authorities, interference with the right to freedom of expression may not be proportionate. To conclude, it may be said that different forms of misinformation require different responses. Criminal measures should be applied only in extreme situations, where COVID-19 misinformation leads to significant social harm and less restrictive measures are not possible. Also, criminal law which prohibits the spread of COVID-19 misinformation should not be drafted vaguely, as a broad definition of COVID-19 misinformation may facilitate the disproportionate use of criminal measures.
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References
↑1 | The authorities are under obligation, pursuant to Article 2 of the European Convention, to take measures to protect the right to life. See, Budayeva and Others v. Russia, nos. 15339/02 and 4 others, ECHR 2008. |
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↑2 | ‘UN Tackles ‘Infodemic’ of Misinformation and Cybercrime in COVID-19 crisis’ (31 March 2020), accessed 28 July 2020. |
↑3 | OSCE, ‘Human Dimension Commitments and State Responses to the Covid-19 Pandemic’ (OSCE Office for Democratic Institutions and Human Rights (ODIHR) 2020) 5, 55. |
↑4 | Article 19, ‘Viral Lies: Misinformation and the Coronavirus’ (March 2020), accessed 15 July 2020. |
↑5 | Toby Mendel, Freedom of Expression: A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights (Council of Europe 2012) 2. |
↑6 | European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950) ETS 5, Art 10(2); Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave 2018) 96; Mariya Alekhina and Others v Russia, no. 38004/12, para 199, 17 July 2018 |
↑7 | The Sunday Timesv the United Kingdom (no. 1), 26 April 1979, para 49, Series A no. 30; Gawęda v Poland, no. 26229/95, para 39, ECHR 2002-II. |
↑8 | Tolstoy Miloslavsky v the United Kingdom, 13 July 1995, para 37, Series A no. 316-B. |
↑9 | Ibid para 37. |
↑10 | Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave 2018) 98. |
↑11 | Handyside v the United Kingdom, 7 December 1976, para 48, Series A no. 24. |
↑12 | Lindon, Otchakovsky-Laurens and July v France [GC], nos. 21279/02 and 36448/02, ECHR 2007-IV. |
↑13 | Perinçek v Switzerland [GC], no. 27510/08, ECHR 2015. |
↑14 | Vérités Santé Pratique Sarl v France, no. 74766/01, ECHR 2001. |
↑15 | CoE, ‘Internet: case-law of the European Court of Human Rights’ (June 2015) 20, accessed 1 August 2020. |
↑16 | Perinçek v Switzerland (n 14) para 280. |
↑17 | Marko Milanovic, ‘Viral Misinformation and the Freedom of Expression: Part I’ (EJIL:Talk, 13 April 2020), accessed 5 July 2020. |
↑18 | Article 19 Report (n 5) 9. |
↑19 | The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, ‘Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda’ (3 March 2017) 2 (a), accessed 7 July 2020. |
↑20 | Article 19, ‘Singapore: New law on “online falsehoods” a grave threat to freedom of expression’ (Article 19, 9 May 2019), accessed 13 August 2020. |
↑21 | ‘Serbia journalist’s car tyre cut, Nova.rs says, NDNV worries about her safety’ (N1, 1 May 2020), accessed 18 August 2020. |
↑22 | Criminal Code of the Republic of Serbia Official Gazette of RS, Nos. 85/2005, 88/2005, 107/2005, Art 343. |
↑23 | Ana Lalic, ‘KC Vojvodine pred pucanjem: Bez zaštite za medicinske sestre’ (Nova, 1 April 2020), accessed 19 August 2020. |
↑24 | Article 19, ‘Serbia: Journalist Ana Lalic arrested for reporting on inadequate hospital facilities for coronavirus’ (Article 19, 2 April 2020), accessed 27 July 2020. |
↑25 | Attila Mong, ‘Serbian reporter Ana Lalić on her arrest and detention over COVID-19 report’ (CPJ, 29 April 2020), accessed 29 July 2020. |
↑26 | HRC, ‘Report of the Special Rapporteur to the Human Rights Council on Disease Pandemics and the Freedom of Opinion and Expression’ (23 April 2020) U.N. Doc. A/HRC/44/49 para 49. |
↑27 | Criminal Code of Russian Federation N 64-ФЗ 1996, Art 207.1. |
↑28 | Review of selected issues of judicial practice related to the application of legislation and measures to counter the spread of a new coronavirus infection (COVID-19) N1 in the territory of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation on April 21, 2020) |
↑29 | Kenneth Roth, ‘How Authoritarians Are Exploiting the COVID-19 Crisis to Grab Power’ (HRW, 3 April 2020), accessed 18 July 2020. |
↑30 | Anna Pushkarskaya, ‘Неверно понял интересы общества’. Как нижегородского журналиста приговорили за ‘фейк’ о пандемии’ (BBC Russia, 10 December 2020), accessed 17 December 2020. |
↑31, ↑34 | Ibid. |
↑32 | «На журналиста из Нижнего Новгорода завели уголовное дело о фейках из-за поста про коронавирус» (OVD-Info, 17 April 2020), accessed 18 December 2020. |
↑33 | Anna Pushkarshaya (n 32) |
↑35 | For instance, Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999-IV; Šimunić v. Croatia, no 20373/17, ECHR 2019. |
↑36 | Perinçek v Switzerland (n 14) paras 12-26. |