A Conversation With U.N. Special Rapporteur David Kaye: COVID-19 and Freedom of Expression

Editor’s Note: This piece is part of Just Security‘s United Nations Special Rapporteurs on #COVID-19 series, in which mandate holders offer their views on pressing issues related to the coronavirus pandemic.

Ryan Goodman, Just Security‘s co-editor-in-chief, recently posed a series of questions to David Kaye, U.N. Special Rapporteur on Freedom of Opinion and Expression.

1. Your report makes several references to the successful work of the World Health Organization including in setting standards for government communications of risk and standards for government transparency, as well as in providing trusted medical guidance that helps to counter disinformation. Could threats to cut off funds arbitrarily or delegitimize the work of the WHO during this pandemic potentially interfere with the right to receive critical health information?

No organization is perfect, and organizations that are established to advance and protect the public interest should be subjected to rigorous public oversight. They should have in place accessible processes to ensure the public, especially journalists, access to information (a subject that I reported on to the UN General Assembly in 2017). There is especially good reason for the WHO, at a time of global pandemic, to be scrutinized to ensure that it performs in a way that best protects global public health. I am not sure the resolution the World Health Assembly adopted on Tuesday will provide the basis for the kind of scrutiny the pandemic demands; it will be up to the Director-General to initiate an investigation that genuinely and independently explores the WHO’s response.

In any event, genuine investigation was not really the Trump administration’s demand. It is not pursuing a strategy of scrutiny to ensure a better performing WHO. The strategy is one of blame-avoidance, developed as a political answer to the administration’s failure to address COVID-19 during the two or three months when interventions would have had a meaningful impact. We can see that in the letter President Trump sent to the Director-General of the WHO, Dr. Tedros, which was so full of factual errors that The Lancet had to publicly correct them.

Clear and dangerous consequences flow from this broad attack on the WHO: the Trump administration’s efforts to cut funding delegitimize – whether intentionally or incidentally – the important public health work that the WHO does. Trump is not the only one to politicize the WHO; there is evidence of Chinese influence as well, from early in the outbreak (though I do not know if it is as consequential as some make it out to be). But Trump’s funding threats signal to Americans, or at least that part of the United States that pays him serious attention, that the WHO guidance is not necessary to follow. “They got it wrong then, why follow them now?” he seems to say. It fits with the overall anti-science attack the administration is pursuing in other areas. What’s more, this approach goes directly contrary to the WHO’s own guidance that governments and public health authorities adopt responsible strategies of risk communication – pay attention to rumors and correct them, do not amplify and promote false information and risky, or untested, behavior. I am afraid that Trump’s approach will have near-term effects on the way in which many Americans consume public health information, how the press presents it (if they fail to resist Trump’s disinformation strategy), and the course of the pandemic itself.

2. Your report states that due to the severe public health threat and need for accurate information, internet search and social media companies “should aim towards maximum transparency of their policies and engage, on an urgent basis, not only with public health authorities but with affected communities wherever they operate.” In 2018, you issued a report (A/HRC/38/35) specifically about user-generated online content, including a description of different kinds of transparency. With specific regard to the coronavirus pandemic, should these companies provide greater transparency about how they monitor content, how they use and share individuals’ information, and how they target information to individuals online?

We are now witness to the consequential power of the platforms. For some, the signal moment for platform consequences may be Facebook’s contribution of a platform for genocidal hate and incitement to violence in Myanmar. For others it may be departure of a journalist from Twitter due to misogynistic or racist harassment or the censoring of evidence of war crimes in Syria by YouTube. The power in the context of COVID is just as clear. The platforms are serving as stand-ins for government authorities, posting public service announcements and links to government guidance – benign and public-minded enough – or taking down calls to action and protest against the lockdowns.

Many of the platforms have done a good job informing the public about their new COVID rules related to content. The same cannot be said about implementation of those rules. Now, it’s early, so there is certainly time for the companies to offer real transparency about their enforcement. And they should do it, disclosing as much as they can about takedowns and other account or content actions due to disinformation or other public health threats. Granted, they have privacy obligations to their users, and they also need to be mindful about disclosing (for instance) disinformation in a way that reinforces or amplifies the content. But just as they should do with all content of concern, they should create a kind of case law to enable observers to understand exactly what decisions they are taking about COVID content. They should ensure genuine access to researchers, particularly those with expertise in computational propaganda or with research agendas focusing on the impact of platforms on public institutions. That research and analysis, in turn, should be available to policymakers and legislators and the public. If the companies are targeting information on specific individuals as a result of algorithmic functions (for instance, offering up certain content because of a person’s tendency to view disinformation), they should be clear about that effort, they should let users and the public know, and they should be scrutinized for it.

There is an opportunity here for everyone. For platforms, it’s an opportunity to move toward real transparency in a meaningful way. For governments, it’s an opportunity to think hard about the tools they need to provide public oversight of the companies. For civil society, it’s an opportunity to influence the narrative around platform decision-making in a way that resonates with the public, which can see in concrete ways how the platforms shape public debate and public knowledge.

3. From your review of responses to the coronavirus pandemic around the globe, what are some of the best practices for combatting disinformation and propaganda while still promoting freedom of expression?

What are some of the worst practices?

It is easier to identify the worst than the best practices, as always. But there are some good practices. I have been impressed with German Chancellor Angela Merkel’s public approach to the pandemic. She seems to have an intuitive grasp for the WHO’s guidance on risk communication. She has been open to Germans about the nature of the threat and our evolving understanding about the harms caused by the coronavirus. She speaks to the public as the adults that they are, capable of critical thinking and individual and social responsibility. The German government has permitted public protest against the lockdowns but also it has been clear about the extent to which such protests must observe public health priorities. Meanwhile, Germany went through a strict lockdown period and now is emerging with a public sense of unified purpose. I am sure I am overstating it and closer observers could correct this rosy view, but this is generally what I see from the outside. We see similar kinds of good practices in Taiwan, South Korea, New Zealand, Senegal, Canada, and some other places.

By contrast, there are some real troubling practices. Some have little to do with COVID, such as Viktor Orban in Hungary opportunistically exploiting the moment to expand state media’s control of public space, reinforce his own authoritarian governance, and enforce penalties against independent media. Egypt has detained reporters for reporting on coronavirus. South Africa adopted legislation designed to criminalize the dissemination of false information about the virus. India has taken ever harsher measures in Kashmir, limiting the flow of information in ways that clearly interfere with basic access to public health strategies.

The list of bad practices goes on, but if we were to focus on one, I would really watch for the proliferation of laws criminalizing “false information” about COVID. These are noteworthy on their own, because they may have the paradoxical impact of making it harder for government to address public fears and disinformation, thus exacerbating threats to public health, but also noteworthy in terms of what governments may hope to do in other areas outside of public health.

4. How should news outlets and social media companies address the problem of senior state officials, including heads of state, who give live press conferences or use social media to disseminate information that clearly contradicts guidance from public health authorities and puts public health at significant risk? 

This has been a particular problem in the United States and Brazil, where the heads of state regularly go on live television to dispute public health warnings, or at least minimize or even mock them. I think the public has a right to hear those statements and make decisions themselves, but I also think that media outlets – particularly broadcast – have to think hard about whether they are enabling the dissemination of information that runs counter to public health guidance. It is nearly impossible for them to do it on live broadcasts, to provide the kind of context or fact-check that is necessary to ensure that the public is well-informed. They just become platforms for Trump’s dangerous disinformation and rally-like circus. Some have come around to this, but it seems to me that broadcasters could provide a delay that gives them time to contextualize statements from public leaders, whether Trump, Brazil’s President Bolsonaro, or others. Print media have a different editorial question, which is how to describe and analyze these and other statements. Too often they report them straight, as if Trump’s assertion that he’s taking hydroxychloroquine to counter the coronavirus is true and reasonable, given the degree to which public health authorities have advised against it.

5. Under the heading of “access to information held by public authorities,” your report states that governments must provide the public with information about “the full scope of the threat posed by disease” and restrictions on this information should be “only on the narrowest grounds and with the greatest degree of necessity to protect a legitimate interest.” Does this framework apply to governments who may, through their intelligence services or other agencies, have information that another state is publicly covering up the full extent of a disease outbreak? 

The principle of access to information is fundamental to freedom of expression and to democratic accountability, and it has a legal basis as a matter of human rights law. Article 19 of the International Covenant on Civil and Political Rights has been interpreted as a basis for the right to access information held by public authorities (see General Comment 34 of the Human Rights Committee, paragraph 18). Over time international and domestic law has developed to reinforce the right.

When I was writing about access to information during the pandemic, I was focused on the way in which governments often resist sharing information with their own public, typically information they have generated or gathered that is domestic in nature. There’s a good example of this from Florida, where a scientist managing a public site to track COVID cases has alleged she was fired because she resisted manipulating data to serve a political agenda to reopen the economy.

Of course, the principle could just as well apply to other kinds of information, as the question suggests. That said, I think we need to be careful. The Trump administration has clearly been seeking to weaponize intelligence to provide a basis to argue that Chinese malfeasance, or some kind of incident at a coronavirus lab in Wuhan, China, caused the disease to spread (which The Daily Beast recently discredited). Selective access to information, like selective leaking by officials, may just be another form of disinformation. Intelligence is often raw and subject to interpretation and debate; we saw in the run-up to the war in Iraq in 2002 and 2003 just how government could, in bad faith, manipulate raw intelligence to sell a policy to the public. A government acting in good faith, however, might also resist sharing intelligence if they could demonstrate it was necessary to protect national security (a limitation permitted by Article 19 of the ICCPR – and often abused by States).

6. Your report provides a set of principles that should govern the use of digital surveillance technologies to combat the pandemic, including “rigorous record-keeping” so that individuals and oversight bodies can assess whether the surveillance is used appropriately and “strict privacy protections” that ensure personal information is provided only to people authorized for public health purposes. This list draws in part from your 2019 report on the more general subject of surveillance and human rights. Do you think best practices in the public health realm in addressing the coronavirus pandemic may also lead to greater compliance with human rights in the use of surveillance for counterterrorism and other national security purposes? Or are you concerned that the ramping up of surveillance to address the coronavirus, even if complaint with human rights, will lead to greater unnecessarily expansive uses of surveillance in other realms?

I would like to say yes to the first question. With the pandemic, public health surveillance has become a necessity, and it will apply to everyone. It will be a new kind of mass surveillance. With everyone subject to it, perhaps it will give people another way to think about the protections we need even when surveillance is justified. Perhaps we will develop a set of principles and a normative understanding that any surveillance must be necessary to achieve a legitimate purpose and proportionate to that aim. I am hopeful but I’m not naive.

Instead, I suspect that governments will compartmentalize the kinds of surveillance we’re talking about here. It’s not as if national security and counter-terrorism officials typically run in the same circles as public health professionals. The same is just as true in Congress, where the cult of national security and counter-terrorism will be hard to dislodge even after the pandemic ends. Also militating against the best practice is the news that many of the actors involved in national security surveillance – actors like NSO Group out of Israel – are seeking access to the public health surveillance market. Many of these private companies are used to operating with limited legal, let alone human rights legal, constraints. Many are content to sell their tools to governments that lack basic rule of law standards. If they become serious players in the health sector, I am not sure we can trust them to be promoting the kinds of principles my report describes.

Maybe I could put this another way. The lessons available from public health surveillance, if we learn them, can be applied to national security surveillance. But that will only happen if we have legislators who ensure that surveillance is governed by rule of law standards that are similar in both contexts. That means legal and policy advocacy can be consequential here, and it means that the 2020 congressional elections will be meaningful for this and countless other reasons.

7. Your report discusses the 2017 Joint Statement made by you with your counterparts from the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples’ Rights and, in particular, a principal standard in that Statement, which is:

“State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).”

Do President Donald Trump’s statements about the coronavirus pandemic (e.g., concerning the scale of the threat) violate that standard? 

No question. We have had three-plus years of Trump’s lies (is there any other way to put it?). His statements since the COVID outbreak have repeatedly emphasized, in a reckless way, how the disease is no worse than a bad flu, that it will disappear when the weather warms up, that hydroxychloroquine and zinc can prevent infection, and so on. Trump, the guy who has co-opted “fake news” as an assault on independent media, is himself the country’s most important platform for disinformation. What’s astonishing is not the level of his con but the inability of the media to unmask it and the willingness of the Republican Party to aid and abet it. I am sorry to end on a seemingly political note, but this is how I see it objectively. As they say, if this were any other country …

Image: David Kaye, United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, briefs journalists. October 25, 2017. United Nations, New York

 

About the Author(s)

David Kaye

UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Clinical Professor of Law at UC Irvine School of Law, Formerly Served in the Office of the Legal Adviser at the State Department (1995-2005). Follow him on Twitter at (@davidakaye).