Comment: Freedom of expression and ‘fake news’ during Covid-19


AS the outbreak of Covid-19 continues, drastic measures are being implemented all over the world to tackle the threat of the disease to public health, the economy and our ways of life. Many countries, including Malaysia, are facing the particular challenge of dealing with the spread of disinformation, or “fake news”, online.

But while robust responses are necessary, the government must take care to counter disinformation without undermining our human rights.

Freedom of expression is a fundamental right which gives people the opportunity to seek, receive and impart information and ideas, have important conversations of public concern and hold those in power to account. As World Press Freedom Day approaches on May 3 this year, we are reminded that freedom of the press is a fundamental element of freedom of expression. This right is no less relevant to our lives in times of global crisis; arguably, it is more important than ever.

Malaysia has committed to protecting freedom of expression in the Federal Constitution, the Asean Human Rights Declaration, and its obligations under international human rights law. Like many rights, freedom of expression can be restricted by governments in narrow circumstances. Limitations must be lawful, necessary and proportionate, in the pursuit of legitimate interests such as public order or health. Therefore, any restrictions to our rights as a result of this pandemic, like those to our freedom of religion, movement or assembly, should be directly linked to legitimate public health outcomes.

Disinformation is the spreading of false information with the deliberate intention to deceive, whereas misinformation refers to the inadvertent sharing of such material, without the intent to deceive or cause harm. Recent examples in Malaysia in relation to Covid-19 include false claims that military personnel were authorised to assault civilians, that various hospitals were desperately seeking funds and equipment, and that certain areas, facilities or shops were contaminated with the virus, all of which were prone to causing fear and anxiety to the public.

Others have opportunistically used the pandemic to exploit and scam people, including businesses falsely claiming to be authorised by the government to implement measures related to Covid-19 or sowing confusion by inaccurately or misleadingly publishing information pertaining to government initiatives.

The use of WhatsApp and other messaging apps to disseminate false information is particularly concerning and difficult to control. The promotion of alleged cures for Covid-19 which have proliferated in Malaysia, including the consumption of turmeric water and garlic, are misleading and risk giving people a false sense of security. The risks of disinformation can be extremely high, as seen from the tragic example in Iran, where hundreds of people died after drinking industrial or bootleg alcohol following fake reports that it could cure Covid-19.

The state has an important role to play in countering disinformation. The authorities have investigated, arrested and charged a number of individuals under section 233 of the Communications and Multimedia Act (CMA) and section 505(b) of the Penal Code. Section 233 of the CMA deals with the creation or transmission of communications which are “obscene, indecent, false, menacing or offensive in character” with the intent to “annoy, abuse, threaten or harass another person”, while section 505(b) of the Penal Code criminalises the publication or circulation of communications which cause or are likely to cause “fear or alarm to the public”.

The use of these provisions can be problematic, particularly the offence under the CMA, which is vague and expansive in scope, and has a history of being abused. It is important that the authorities resist the urge to become reliant upon overly broad laws which can be used to criminalise or unnecessarily restrict freedom of expression. The authorities are also employing other methods to tackle the spread of disinformation, such as giving regular press briefings and statements, and posting updates and clarifications on social media and government websites.

To counter disinformation, it is vital that we have access to clear, accurate and evidence-based information and so ongoing openness and transparency is key.

Malaysia has also focused on its responsibility to educate the public and has encouraged people to apply critical judgement to any material they come across online. This approach will be essential to ongoing efforts to deal with disinformation in the age of social media and messaging apps, as the reality of these platforms necessitates greater digital literacy.

Coercive measures, constant correction and debunking of false reports are neither the most effective nor sustainable solutions. Members of the public must be informed and empowered to use their own judgement and good sense when determining whether information is accurate or not. Simple practices should be promoted, such as checking whether the website or social media account looks legitimate or if the information is also reported on other reputable sites. If you cannot be sure about the legitimacy of the information after making such assessments, then do not share.

The authorities must strike the correct balance, as an overzealous attempt to remove “fake news” or censor criticism whether justifiable or not, is likely instead to create a conducive environment for rumours, speculation and panic to take hold.

While disinformation itself can have serious consequences, so too can an authoritarian response which unduly restricts freedom of expression. Censorship not only offends freedom of expression as a principle of human rights, but we have recently observed how it has very real and damaging consequences for public health and peoples’ lives.

Malaysia, as a democratic nation which values human rights, must continue to respect fundamental freedoms. Taiwan, South Korea and Singapore have all managed the pandemic using a variety of measures to keep infection and death rates low. While none of their approaches has been completely free from human rights impacts, they have demonstrated that effective public health measures can be taken while still displaying transparency and openness, with regular press briefings, public information campaigns on multiple platforms and the publication of reliable data.

The government must recognise the critical role the media has to play in tackling disinformation. The role of an independent media, adhering to standards of professional ethics, cannot be undervalued in times like these. The public must be able to access reports and opinions on a wide spectrum of issues, as well as government information. All of this content can help to inform and empower people to act in the best interests of their communities without coercive enforcement.

The World Health Organisation warned of an “infodemic” - an overabundance of information, some of which is inaccurate, making it difficult for people to find trustworthy guidance when they need it. We must avoid such an infodemic in Malaysia and a candid, calm and rights-respecting response will be key to this.

Freedom of expression and public health are not mutually exclusive goals, and one does not have to be completely sacrificed for the other. We can, and should, have both. The Covid-19 outbreak has demonstrated that transparency, education and making evidence-based information available to the masses go hand in hand with the protection of public health. Respect for freedom of expression is needed to navigate this crisis.

Eric Paulsen is the Representative of Malaysia to the Asean Intergovernmental Commission on Human Rights (AICHR).

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