As European eyes turn to India's fake news lockdown, Argentina's human rights response should be evaluated

The influx of false and misleading information during the COVID-19 pandemic has once again raised anxieties about potential regulatory intervention to curb this ever-growing digital problem. As a global issue, it is interesting to observe developments when considering how Europe could respond. As the European institution tasked with legislative initiative in this area, the European Commission has highlighted how the dissemination of false and harmful content has further strained the public's ability to decipher genuine and reliable news from medical falsities.

In response to the proliferation of inaccuracies during the current crisis, the Commission has advised citizens to refrain from sharing "unverified information coming from dubious sources", while simultaneously "encouraging" online platforms to amplify authoritative sources and "demote" low credibility content. This is reflective of the self-regulatory legal framework that the Commission has adopted as a response to this technological problem. This can be traced back to the resolution on "Online Platforms and the Digital Single Market" in June 2017. On foot of this resolution, the Commission established a High Level Group (HLG) to discuss and ultimately "advise on policy initiatives to counter fake news and the spread of disinformation online". This led to the development of the "Action Plan Against Disinformation" in December 2018, and eventually, the Codes of Practice on Disinformation.

While these provide useful guidance for online platforms in addressing this problem, the voluntary and non-binding nature of the Codes left scope for further regulatory intervention, and this was acknowledged by the Commission. The COVID-19 pandemic represents the most urgent situation in relation to both disinformation and misinformation since the establishment of the Codes, meaning that pressure to reassess and potentially change the regulatory framework in this area will likely grow.

The Indian Supreme Court's response to fake news panic

It is important not to analyse the European position in isolation, and to draw attention to important global legal developments that have been spurred by an influx of rumours and lies online. In particular, the Indian Supreme Court decision on 31st March in Alakh Alok Srivastava v Union of India provides a useful insight into the legal perils associated with fake news regulation.

For the EU, the practical implications of this case are not as germane as recent legislative developments in Hungary that introduced criminal sanctions for fake news dissemination. However, it provides two interesting developments. Firstly, it represents an extremely rare (if not unprecedented) instance where the popularised term "fake news" has been invoked in a Supreme Court setting. Secondly, it provides a clear example of the dangers to fundamental rights that can be demonstrated by fake news regulation in the wake of a global panic.

The background of the Supreme Court's advice to the central government of India highlights a deeply troubling reality. In the midst of India's response to the COVID-19 outbreak, misleading rumours had been spread online concerning the potential for a lockdown for over three months. This prompted a number of migrant workers to return home in fear of being caught in the prolonged lockdown. As a result, the court noted that this "panic" driven exodus was heavily linked to "fake and/or misleading news" on digital platforms. According to the court, this signified a continuation of "deliberate or inadvertent fake news" as the "single most unmanageable hindrance" in the central government's response to COVID-19. This is particularly noteworthy in light of the court's characterisation of India's general response as "proactive, pre-emptive and graded".

In light of this panic driven mass exodus, the Supreme Court issued advice to the central government in order to contain the spread of false and misleading information during the current pandemic. The government was advised that "no electronic/print media/ web portal or social media shall print/ publish or telecast anything without first ascertaining the true factual position from the separate mechanism provided by the central government."

This "mechanism" would consist of a web portal established by the central government in order to provide accurate and recognised official information regarding ongoing responses to COVID-19. Accordingly, information and news circulated must first be checked off by this governmental information verification mechanism.

An urgent gap: human rights compatibility

In assessing the Indian Supreme Court's decision, a pressing and continuing anxiety can be seen when approaching this growing problem from a legal perspective. That is, it is far easier to identify the scope of the fake news problem than it is to prescribe effective and sufficiently measured solutions. In particular, the need to balance responses becomes especially prescient when analysing these developments in the context of international human rights. In issuing guidance, the Court correctly acknowledged the link between the dissemination of false information and the "potential of causing panic in large sections of society". Moreover, it was also noted that a continuing deluge of misleading claims fuelled by social media can have the effect of impeding otherwise effective governmental responses, which are of particular importance during a public health crisis. When considering the need to protect public health under numerous international human rights instruments including the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFR), it is essential that proportionate legal responses consider this factor during pandemics such as COVID-19.

In spite of this, a number of fundamental rights concerns are raised by this decision, and other related directions that could seek to mirror the court's directions. While the government is tasked with reducing the spread of false information, the position of the centralised information and news "portal" raises questions. Both during the current crises and in the aftermath, a balanced human rights response to fake news must mediate the necessity for a pluralistic and free press environment, with the protection of the public from misleading, manipulative, and ultimately harmful information. It is questionable whether the Court's decision could ultimately lead to a chilling effect from numerous legitimate media publications that provide valuable and accurate coverage of the coronavirus.

The need for media institutions to hold power to account is particularly relevant during a pandemic, when the government's responses must be scrutinised accurately and honestly. In particular when considering the potential for governments to use such powers to suppress unfavourable but verified information from press outlets, a state sponsored information portal could create a dangerous precedent. While the potential for fake news to exacerbate public health concerns and related panic, the ability for journalists to hold power accountable for harmful governmental responses (or unacceptable inaction) is also critical from a public health and fundamental rights perspective. Responses such as these must also clearly specify when restrictions will be lifted. While it is difficult, if not impossible, to ascertain when the severity of COVID-19 will subside, instructions such as these must indicate that they will last until broader governmental restrictions remain in place, or as otherwise decided.

These factors underscore the need for Europe to enshrine future regulatory developments for disinformation and misinformation with adequate protections for the free press. In particular when considering the right for the public to "receive and impart information" under Article 10 of the ECHR, the need for legitimate journalists and news outlets to be protected in their coverage of pandemics is crucial.

A promising development in Argentina

Going forward, global developments in response to this issue should be closely monitored in their compatibility with fundamental rights protections. Numerous jurisdictions have yielded promising developments, especially when furnished with human rights protections. In Argentina for example, the legislature recently proposed legislation that floated a "Commission" to verify the authenticity of news. This legislation arises on foot of the rapid "speed of creation, propagation and distribution of false news", and would exist under the umbrella framework of the national electoral commission, and would be tasked with detecting, labelling, and curtailing the spread of false information. Applying to both online and offline content, a notable and promising feature of this development is that it is grounded in a recognition of fundamental rights principles. The proposal of the Commission for the Verification of Fake News (CVNF) recognises the "right to access the Internet as a human right, based on the integral respect for human dignity, freedom, equality and diversity in all its expressions." It also acknowledges the need to protect "personal data", and would appoint journalists from both the "Graphic Media Associations" and the "Associations of Audiovisual Companies".

Proposals such as these represent a promising blueprint for fake news regulatory responses to achieve compatibility with international human rights principles. While the precise direction of future legal developments is far from certain, it is increasingly likely that the current pandemic could launch significant regulatory changes.