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 have jointly moved to set international standards and conditions under which free expression may be limited.
In a “Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and propaganda” adopted at their meeting in Vienna, on March 3, 2017, the parties expressed concern that disinformation and propaganda are often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek and receive, as well as to impart, information and ideas of all kinds, regardless of frontiers, protected under international legal guarantees of the rights to freedom of expression and to hold opinions.
With reference to their joint declarations of November 26, 1999 with 17 others, the parties expressed shock at instances in which public authorities denigrate, intimidate and threaten the media, including by stating that the media is “the opposition” or is “lying” and has a hidden political agenda. These, it noted, increase the risk of threats and violence against journalists, undermine public trust and confidence in journalism as a public watchdog, and may mislead the public by blurring the lines between disinformation and media products containing independently verifiable facts.
The Parties deplored attempts by some governments to suppress dissent and to control public communications through varied measures. These include repressive rules regarding the establishment and operation of media outlets and/or websites; interference in the operations of public and private media outlets, including by denying accreditation to their journalists and politically-motivated prosecutions of journalists; unduly restrictive laws on what content may not be disseminated; the arbitrary imposition of states of emergency; technical controls over digital technologies such as blocking, filtering, jamming and closing down digital spaces; and efforts to “privatise” control measures by pressuring intermediaries to take action to restrict content.
Parties to the joint declaration noted that the human right to impart information and ideas is not limited to “correct” statements, that the right also protects information and ideas that may shock, offend and disturb, and that prohibitions on disinformation may violate international human rights standards, while, at the same time, this does not justify the dissemination of knowingly or recklessly false statements by official or State actors.
The Parties thus adopted the Declaration wherein they set general principles under which States may impose restrictions on Freedom of Expression, referencing Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR).
The Declaration inter alia makes provision to protect individuals against liability for merely redistributing or promoting, through intermediaries, content of which they are not the authors and which they have not modified.
The Declaration condemns content filtering systems which are imposed by a government and which are not end-user controlled as not justifiable as a restriction on freedom of expression.
It provides that:
“The right to freedom of expression applies ‘regardless of frontiers’ and jamming of signals from a broadcaster based in another jurisdiction, or the withdrawal of rebroadcasting rights in relation to that broadcaster’s programmes, is legitimate only where the content disseminated by that broadcaster has been held by a court of law or another independent, authoritative and impartial oversight body to be in serious and persistent breach of a legitimate restriction on content (i.e. one that meets the conditions of paragraph 1(a)) and other means of addressing the problem, including by contacting the relevant authorities of the host State, have proven to be demonstrably ineffective.”
While setting standards on disinformation and propaganda, the Declaration makes effort to ensure that Authorities do not use vague expressions to criminalise legitimate expressions. It provides that: “General prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression, as set out in paragraph 1(a), and should be abolished.
“Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.”
The Declaration obliges States to provide enabling environments for Freedom of Expression, noting that: “States have a positive obligation to promote a free, independent and diverse communications environment, including media diversity, which is a key means of addressing disinformation and propaganda.
“States should put in place other measures to promote media diversity which may include, as warranted by the situation, some or all of the following: Providing subsidies or other forms of financial or technical support for the production of diverse, quality media content; Rules prohibiting undue concentration of media ownership; and Rules requiring media outlets to be transparent about their ownership structures.”
The Declaration urges the media and journalists to, as appropriate, support effective systems of self regulation whether at the level of specific media sectors (such as press complaints bodies) or at the level of individual media outlets (ombudsmen or public editors) which include standards on striving for accuracy in the news, including by offering a right of correction and/or reply to address inaccurate statements in the media.
While calling on all Stakeholders to develop participatory and transparent initiatives for creating a better understanding of the impact of disinformation and propaganda on democracy, freedom of expression, journalism and civic space; the Declaration specifically called on Media outlets to consider including critical coverage of disinformation and propaganda as part of their news services in line with their watchdog role in society, particularly during elections and regarding debates on matters of public interest.
