ARTICLE 19 has submitted its response to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression regarding her upcoming thematic report on challenges to freedom of opinion and expression in times of armed conflicts and other disturbances for the 77th session of the UN General Assembly. In our submission, we provide clarification on the legal regime applicable to issues of freedom of expression, disinformation and state propaganda during armed conflicts. We further express concern about undue restrictions on freedom of expression and information during armed conflicts and address the role of legacy media and social media in both curbing and spreading disinformation and propaganda in conflict scenarios.
Information operations in the context of armed conflict can have a variety of effects on the conduct of hostilities and influence the possibility of reaching a peaceful settlement. Disinformation and state propaganda activities during armed conflicts can have many harmful consequences for those most affected by the hostilities. For example, it may lead to the vilification of certain groups and encourage violence against them or distort information that is vital for the needs of civilians caught up in the hostilities.
It is therefore precisely during times of conflict that freedom of expression and a free flow of information should be vigorously defended. Respect for freedom of expression is a crucial element in any long-term policy to promote peace and bring an end to the conflict as well as protect lives in conflict situations. It is also necessary for adequate reporting on the conflict itself and for addressing human rights abuses – both as a cause of the conflict and a factor perpetuating it. Yet, we routinely observe that undue restrictions are imposed on freedom of expression and information and these rights become serious casualties during armed conflicts.
In our submission, we highlight the following:
- While an armed conflict situation triggers the applicability of international humanitarian law, it does not suspend the application of international human rights law and freedom of expression and information more specifically. Limitations to free speech and access to information during armed conflicts must generally continue to meet the three-part test of legality, legitimacy, necessity and proportionality provided for by Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
- Disinformation and state propaganda are not per se prohibited under international law. In particular, the right to receive and impart information includes information that is false. International human rights law only allows the restriction of disinformation or propaganda when connected to one of the particular legitimate aims under Article 19(3) of the ICCPR. To the extent that disinformation and propaganda constitute propaganda for war or illegal hate speech (which reaches the level of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence), it will also be prohibited under Article 20 of the ICCPR.
- Responses of States and companies seeking to curb what they perceive as disinformation can be problematic, as they are often not based on a sound human rights assessment and go beyond the restrictions permissible under international humanitarian and international human rights law. ARTICLE 19 highlights that prohibitions of certain sources or types of information generally do not constitute an effective tool to address propaganda and that the free flow of information tends to be more effective in enabling resilient counter-responses to propaganda and disinformation. We further note that, in extreme cases, parties to an armed conflict have treated journalists and media institutions as legitimate military targets on the basis that they directly participated in the hostilities by spreading propaganda.
- Reporting by legacy media continues to assume a central role in conflict and conflict resolution. While sound public interest reporting can be effective in curbing the spread of disinformation, including in situations of armed conflicts, legacy media can also be a vehicle of propaganda and incitement to violence. ARTICLE 19 believes that efforts to support media diversity and independence and to promote media literacy are key tools in countering disinformation both in times of peace and in times of armed conflicts.
- Social media platforms have undoubtedly shown strong potential for defending democracy and human rights. However, because of their business model – based on the vast collection of personal data and selling access to users’ attention through targeted advertising – social media platforms have also increasingly become a driver of conflict. ARTICLE 19 notes that in many ways, the problems associated with social media platforms are the same in times of peace and in times of armed conflicts, but during armed conflicts, there is a real risk that dehumanising and extremist content online results in offline violence and harm. We also highlight that platforms’ content moderation processes are often ill-equipped to appropriately tackle the spread of extremist and violent messages in armed conflict scenarios.
- It is deeply concerning that internet shutdowns are increasingly used in response to situations of armed conflicts or internal disturbances, when online connectivity becomes ever more important. Internet shutdowns will put many civilians at risk because they lack access to vital information. Where employed during times of armed conflicts, internet shutdowns that are used to conceal crimes and other serious human rights violations contribute to a culture of impunity. ARTICLE 19 highlights that internet shutdowns are inherently disproportionate and can never be compliant with international human rights law.
We recommend that the Special Rapporteur highlight the following in her report:
- Parties to an armed conflict should not target journalists and media outlets on the basis that they support propaganda activities. Only direct and demonstrable incitement of war crimes or other international crimes by media and media professionals can potentially justify a loss of protected status;
- Parties to an armed conflict should ensure that they do not spread propaganda and disinformation that may incite violence or have other harmful effects and prolong an armed conflict;
- States should implement comprehensive right to information laws that comply with international human rights standards and do not contain broad national security exceptions;
- States should ensure a diverse and independent media environment to best promote freedom of the media and freedom of expression;
- States should refrain from imposing internet shutdowns;
- Media companies should abide by the highest ethical standards of objectivity and independence and refrain from disseminating any communication that could fuel tension and exacerbate conflict situations;
- Social media platforms should transparently articulate clear, accessible and easily understood policies governing disinformation, propaganda and hate speech that are in line with international human rights standards and engage with local civil society actors to understand the human rights risks associated with each context that they operate in. Their content moderation processes should not disadvantage users on the basis of language, country or region.
ARTICLE 19 looks forward to continuing to support the Special Rapporteur’s work in this area.