Pandemic, media, regulation

Everything has changed suddenly, and the new order continues with the application of many restrictions on fundamental human rights and freedoms based on the interests of public health. Sometimes these restrictions also "hit" the media and journalists. In most European countries, neighboring Turkey and Georgia, when the restrictions were made public, the exclusion of media activities and journalists was highlighted in plain text. These exceptions even included days when a curfew was imposed. In other words, journalists could be at work as usual by following the recommendations of protection. A relatively different situation was observed in Azerbaijan. Several journalists were administratively detained for violating quarantine rules. In the days when a curfew was imposed, the media and journalists were discriminated against.

Crisis such as the coronavirus pandemic has not occurred in the last 100 years. Against the background of this feature of the crisis, sometimes, perhaps, it justifies all the restrictions on rights. However, along with many basic rights, the right to freedom of expression and the right to access to information requires a special sensitive approach. This article focuses on the role and place of freedom of expression and the media in the light of universally accepted standards.

The importance of freedom of expression and information

Freedom of expression is protected by Article 19 of the Universal Declaration of Human Rights, adopted by the United Nations. According to that article, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19 of the International Covenant on Civil and Political Rights elaborates on this right. These documents oblige all states to guarantee this right. Article 10 of the European Convention on Human Rights also protects the right to freedom of expression, as in the previous documents, and the member states of the Council of Europe are obliged to provide these guarantees.

Although the right to freedom of expression is a fundamental right, it is not absolute. States may impose restrictions on this right on legitimate grounds. Public health can be one of those legitimate foundations. However, the UN Human Rights Committee, which is tasked with commenting on the two documents mentioned at the beginning of the article, notes that in exceptional cases, these restrictions can be applied through a three-stage test. Restrictions imposed must have the following characteristics: 1) They must be provided by law. When we say law here, we mean an act adopted by parliament; 2) They must aim to achieve a legitimate goal. The purpose of the restriction must be to respect the rights of others, to protect national security, public order, health, or morals; 3) It must be necessary and adequate.

Specifically, in the current situation, when restricting freedom of expression and journalistic activity, it is the duty of governments to explain to the public the content of the threat to public health or other interests protected by law and that measures to restrict expression are necessary and adequate. The Human Rights Committee has always expressed fears of targeting journalists, investigators, and human rights defenders in such cases. In our case, if a curfew is also imposed on journalists, then the one who applies the rule must also clarify questions such as: “How does a journalist's going out threaten public health?” It should be explained by evidence that the public health benefits of restricting journalistic activity outweigh the benefits of a journalist's professional activities.

In crises that threaten public health, such as a pandemic, the actions or inactions of those in power naturally become a matter of public concern. The fear of a pandemic in society can sometimes lead to well-founded or unfounded opinions about officials and sometimes government policies. In this regard, restricting such criticism of officials is incompatible with freedom of expression. The Human Rights Committee states that “in the context of public debate, it is extremely important that freedom of expression is not prohibited.”

Access to information is a key part of freedom of expression. Individuals have the right to access information in institutions that have public information. The UN Human Rights Committee emphasizes that states should disclose public information in a proactive manner and create legislation that facilitates access to such information. Ensuring the right to access to information includes all public institutions and individuals. Access to information may also be restricted but must comply with the International Covenant on Civil and Political Rights.

The above-mentioned guarantees of the right to freedom of expression should be specially provided for the media and journalists. In their documents, international human rights organizations have repeatedly stated "the important role of the media in states governed by the rule of law" and the key role of the media in democratic societies. For example, the UN Human Rights Committee states that “the free dissemination of information and ideas on social and political issues among citizens is vital. In this case, a free media that can comment on public issues and inform the public without any censorship or restrictions is essential. Moreover, the public has the right to access media news.”

Media, Freedom of Expression, Right to Health

The right to health is also protected by the Universal Declaration of Human Rights and gets its strength from Article 12 of the International Covenant on Economic, Social and Cultural Rights, which requires member states to prevent, to cure, and to control epidemics. The article also imposes obligations on states to monitor epidemics and collect information on diseases. The right to access to information also includes the study, acquisition, and dissemination of information and ideas related to health issues. That is, the obligations of states to obtain information do not differ from the usual situation during the pandemic.

As can be seen, the right to health, freedom of expression, and access to information are inextricably linked. The United Nations Committee on Economic, Social and Cultural Rights emphasizes that "access to information is an essential part of the right to health." When states restrict freedom of expression on health issues, impede access to such information, and do not disseminate such information proactively (self-disclosure), communities may be adversely affected related to the right to health and thus may not fully enjoy their right to health.

The United Nations Committee on Economic, Social and Cultural Rights warns against censoring health information or taking steps that could prevent the public from participating in public health discussions and initiatives. The initial secrecy of information about the pandemic in China created serious obstacles to the monitoring and intervention of the disease. Respecting the right to access to information in such a situation could be vital.

In particular, the UN special rapporteur emphasizes the importance of transparency in public health policies, the accountability of policymakers who hold information in their hands, and the empowerment of individuals to protect their own health. The United Nations Committee on Economic, Social and Cultural Rights also condemns "the deliberate concealment and misrepresentation of important information about health care and treatment."

During crises, the media must be able to operate freely

Governments must not forget that false information can create the most serious difficulties in resolving public health crises. In the early days of pandemics, anxious people were usually caught in the grip of real and imaginary information. Therefore, the development of a clear, transparent policy to prevent false news should be one of the top priorities of governments. False information can negatively affect not only the right to health but also other human rights. False information can pose a threat, but it is also unacceptable to arbitrarily limit the information that has the potential to create that threat. All restrictions must meet the test of legality, necessity, and adequacy. At the same time, while applying these criteria, governments should be aware that the guarantees of freedom of expression are not limited to accurate statements and information. Inaccurate expressions, information, exaggerations, etc. can also benefit from guarantees of freedom of expression.

In public health crises such as the coronavirus, the ability of the media to operate freely is particularly important. Free and independent media can monitor the local and international fight against the disease and ensure transparency and accountability of public health measures. The media is also responsible for conveying the messages of groups and people affected by the disease to those in charge and other important institutions. The right of the media to make mistakes, which perform a very important function, must also be kept in mind, and such honest mistakes must not become the basis for interference with freedom of expression.

The ability of the media to operate freely also plays an invaluable role in measures such as virus prevention. The true news of journalists eliminate lies, prevent propaganda, and fight "hate speech". Inaccurate, discriminatory, or deliberately misleading information can lead to intolerance. In this regard, it is important to adhere to the principle of ethical journalism, to disseminate accurate and reliable information.

What should the government do?

In light of the above, what governments need to do in times of crisis, such as pandemics, can be summarized in two ways. The first direction is the proactive disclosure of certain types of information. Governments should promptly disclose information on the number of infections, their geographical area, deaths, and recovery. Furthermore, the rules and action plans for combating the pandemic should be as transparent as possible. The second direction should be focused on the environment of the media and journalists. First of all, the media and the legal regime of journalists' activities should not differ from the usual ones by adhering to protective measures. Legislation on access to information should be applied to further facilitate public access to information. For example, it is possible to oblige the disclosure of certain types of information, to create flexible systems that allow individuals and groups to obtain information from public institutions. In countries with separate laws on access to information, such as Azerbaijan, more effective application of this law should be ensured. In times of public health crisis, pressure on journalists must end and resources must be specially protected.

Khalid Agaliyev