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Tatiana Puiu, lawyer
Since then, the measures taken about the new coronavirus broadened exponentially: both through the efforts of experts, agencies dedicated at the international level at solving the problem and those who understood that correct and responsible communication is needed, as well as through the actions of a unique category of individuals who want to catch some fish in the turbulent waters of panic, who have tried and are trying to use the interest for the topic to spread fake or incomplete news, reports aimed at raising the audience’s awareness and producing a state of panic around the topic.[1]
Panic and misinformation have swarmed all over the globe. Thus, some countries put their weapons out against fake coronavirus news, namely – they passed laws that criminalize what we call today fake news – starting with fines and ending with imprisonment. For example, the Chinese Government focused on suppressing reports of whistleblowers and discouraging the dissemination of information about the virus. Iranian authorities suppressed the journalistic coverages and arrested people who were allegedly spreading fake news. The officials from the rich country of Singapore, passed a law allegedly aimed at fighting against fake news phenomenon, that they applied in more than 20 different cases, but which didn’t help eradicate the immediate public health issues. In Thailand, the authorities arrested at least 13 people for spreading fakes about the pandemic. Indonesian authorities arrested at least six people. In Nigeria, the MPs debated a draft law inspired by the practices of Singapore that compared the fake news to a dangerous virus. Recently a site from Romania, which allegedly published fake information about the coronavirus, was blocked.
Do these restrictions violate freedom of expression? The answer is unequivocal. The international right that protects the right to the freedom of expression and the right to ‘search, receive, and transmit information and ideas’ is thus violated. Certain international organizations called upon vigilance to fight against abuses during the coronavirus pandemic invoking that ‘now, more than ever, the world needs the benefits of democratic governance, including an independent media. (...) For the past weeks, there were various worrying events when authoritarian regimes used Covid-19 to suppress the independent discourse and to restrict the fundamental rights, thus going beyond the needs of public health’.[2]
The ‘Infodemic’ in Moldova
Recently, the Parliament from Chisinau declared a state of emergency for 60 days in order to fight the new virus[3], and the ‘coordination of the activity of the media’, according to the Parliament, is also a method of preventing and combating the coronavirus pandemic. Coincidence or not, but following the example of abusive practices of certain undemocratic regimes, several MPs and the current Parliament spoke about the initiative to impose criminal liability on those who spread fake news on this topic.[4] Even the president of the country recently proposed to impose criminal liability on the media that ‘promotes fake news and panic’. This is an ambitious proposal, even for a state of emergency!
As regards the term fake news, how do we legally define them, especially fake news about coronavirus? Who will be held liable, given that at present we don’t have a viable framework for regulating the activity of the media? How are the terms ‘media’ and ‘journalism’ defined in the national legislation? Who are the officials of the criminal prosecution body from the Republic of Moldova who have the competence and special knowledge both in media and medical field to apply criminal sanctions?
These are only several questions that buffed me after the most recent proposals. Can the practices of some states in combating fake news phenomenon be applicable to the realities of Moldova? For example, the Malaysian law provides for a penalty amounting to EUR 110,000 and/or prison up to six years for creating, offering, publishing, printing, distributing, circulating or disseminating fake news in bad faith, as well as for supporting this type of activities.[5]
The first sanction of this type was applied to a Danish national who published a video on YouTube criticizing the local police for answering a call only after one hour. Germany passed a controversial law that requires social media platforms to remove immediately any posts that contain hate messages, fake news or illegal materials.[6] Websites that do not remove the ‘obviously unlawful’ posts are fined up to EUR 50 million. The Philippines, Venezuela, Kenya, Singapore are some of the dictatorships or authoritarian countries that were inspired by German law. International organizations pointed out that ‘The German law is setting this way a dangerous precedent, which is useful to totalitarian governments seeking to restrict the freedom of expression in the online environment, by requiring companies to apply censorship to users on behalf of the Government.’[7] The best example of a country that prohibits fake news (while massively promoting it abroad and at home) remains the Russian Federation.
However, why didn’t several democratic states make drastic and draconian amendments against the fake news phenomenon? Given that the freedom of expression constitutes ‘one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man’.[8] Article 10 of the European Convention on Human Rights provides that ‘everyone has the right to freedom of expression’, while the Article 32 of the Constitution of the Republic of Moldova guarantees the freedom of opinion and expression. Last but not least, I want to remind you that the media has the duty to inform properly the public on matters of public concern. ‘The disseminated news should reflect the truth and be thoroughly checked before they are spread, the facts should be presented, described and covered impartially. Information and rumors must not be mistaken for one another. News headlines and announcements must reflect as faithfully as possible the facts and data presented.’[9]
In its turn, the Government should support the work of the independent media, which is a key ally in fighting against coronavirus.
Indeed, the phenomenon of fake news is over-expanding in the Republic of Moldova. The special rules on the media and the obligation to share accurate information to the public are enshrined in certain regulatory acts. There is also a public policy document adopted by the Parliament in 2018 – the 2019-2024 Information Security Strategy of the Republic of Moldova. Moreover, one of the objectives of the action plan implementing this Strategy is to monitor the information landscape and identify the misinformation and/or manipulatory information endeavours within and outside the country, harmonize the definitions regarding the misinformation and/or manipulatory information as well as prevent their spread on media platforms. The legal framework aimed at combating the phenomenon of fake news should lie within the range of the Article 10(2) of the European Convention on Human Rights, without being transformed into a tool of censorship.
Today, more than ever, the famous phrase Primum non nocere or First do no harm of Hippocrates should warn our authorities about the fact that any action taken during emergency situations must not violate human rights. However, as noted by Fionnuala Ní Aoláin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms in the fight against terrorism, ‘Some States and security institutions may find the use of emergency powers attractive because it offers shortcuts. (…) As a result, they tend to persist and become hardwired’.[10] Whether it's an emergency or not, the government should reach the same threshold of legality, legitimacy, necessity and proportionality of each measure.
