Amidst the global COVID-19 pandemic and the measures taken worldwide in response to the outbreak which has had significant implications for human rights, the United Nations Educational Scientific and Cultural Organisation (UNESCO) has issued guidelines on the role of judicial operators in the protection and promotion of the right to freedom of expression.
The guidelines aim to provide support for judges and members of the judiciary to protect and promote the right to freedom of expression during and in the aftermath of the COVID-19 pandemic.
UNESCO, in its own view, “hopes that the guidelines will help in gaining a deeper understanding of the theoretical frameworks underpinning the right to freedom of expression, as well as the skills to put this theory into practice, during and beyond this time of crisis”.
Being the United Nations’ specialized agency with a specific mandate to promote and protect freedom of expression and its corollaries, press freedom and access to information, UNESCO seeks to sensitize all relevant actors, and in particular, those working in the judicial systems, such as judges, prosecutors and lawyers on the importance of guaranteeing these fundamental human rights.
As a result of the COVID-19 outbreak, nations have come up with a strict measure to curtail the pandemic, which includes the declaration of states of emergencies which has restricted many fundamental rights including freedom of expression, access to information and privacy.
In addition, some governments have adopted laws to fight disinformation which judicial authorities are likely to soon put to use to rule on cases related to freedom of the press and freedom of expression.
The guidelines are seen as a timely tool to support judicial operators in the processes, in particular, the guidelines promote the proper consideration and correct understanding of applicable international and regional standards, thus upholding the adequate and effective protection of the fundamental rights of freedom of expression and freedom of information beyond the specificities of the respective national laws.
The guidelines highlighted the main challenges to freedom of expression and freedom of information which include: access to information; access to the internet; safety of media and journalists; disinformation and misinformation; privacy, and justice system.
Also included in the guidelines are recommendations listed below that addressed several stakeholders, including judicial operators.
National courts and judges are the first instance in the protection of human rights and play a fundamental role in reviewing the decisions regarding the declaration of the state of emergency and/or exceptional measures affecting fundamental rights.
The current context of public health crisis requires that public authorities, including the judiciary, provide special protection to the different angles of the exercise of the right to freedom of expression and freedom of information. Freedom of expression and unfettered access to public information is to be considered as powerful instruments to fight the pandemic and protect the health of the population.
During a public health crisis, state authorities – including the judiciary – must guarantee that the information they provide to the public is accurate, or accurate as possible framing them appropriately as uncertain or evolving. These authorities should also provide clear and honest guidance. Failure to comply with this principle may represent a violation of citizens’ right to access to information.
In a moment of a global pandemic, access to the Internet is a critical element of health- care policy and practice, public information and even the right to life.
Journalists shall be properly protected from arrests and/or questioning by law enforcement, limitations to report on the situation and possible disruptions in the operation of hospitals, health care facilities, public transportation or other public spaces. They must also be protected from attacks and intimidation by public officials in order to avoid the dissemination of non-official narratives and information, on the broad basis of the existence of a health emergency and exceptional situation.
Journalists’ work should be considered as the provision of an essential service and protected and enabled accordingly, including by granting access to protective masks and other relevant gear.
Judicial operators, particularly judges, could pay special attention when reviewing cases related to addressing measures to fight disinformation, guaranteeing that international standards on freedom of expression and privacy are fully respected within those measures.
When considering possible hate speech cases, it is the responsibility of national judicial operators, to make a proper assessment of each piece of content on the basis of principles, rules and conditions established in international law.
Health data collection must be accompanied by strict personal data protection guarantees and be time-limited while also promoting the public’s right to know the outcomes of such collection.
Justice systems need to incorporate the necessary tools which will allow for the continuation of the provision of this fundamental public service under the circumstances of the pandemic.
Please visit https://bit.ly/2Ss5Iwh to download the full text of the guidelines