By Marta Achler, Senior Legal Advisor, ECNL
It’s the night of 11 March 2020 and as I write my kids 5 and 7 are sound asleep in our home in the outskirts of Florence, Italy, while the official figure of persons infected with coronavirus in the country has reached 12,462 persons infected and 827 persons deceased. The whole country, including our family is under lock-down. Schools are closed. People can leave the house to go to and from work only. We can go to the pharmacy. The doctor. Food shopping.
We can only leave our house with a “self-declaration” form, undersigning that we are moving only to the permissible designated places and the police can stop and question us at any time.
Homework is done through YouTube channels set up by teachers, making films to connect with school and watching online messages from kindergarten friends who miss each other. We work remotely, in shifts, to keep things going. There were evening tears of fear, missing school and kindergarten friends, inability to leave the house or the city, let alone country where my kids have their grandparents. We handed out rounds of antibiotics to fight our family eruption of ‘pneumonia’ and had difficult and delicate discussions about why so many people are dying. All to the sound of loud- speaker announcements by mega-phone on the streets, to stay home.
online action. Photo: Marta Achler
But then, there was this highlight: an online activity passed around through WhatsApp school groups. Kids were asked to draw or paint rainbows and put them in their windows for others to see in person and share on-line. The point is to send a message and create an online connection among an isolated community in order to lift the spirits. The message: “tutto andrà bene”, meaning “everything will be OK”. A message of hope in these sad and confusing times for children, if not for us all. And this led me to a realisation – the internet and the online spaces are indeed becoming our ‘lifeline’ for expression and assembly. And to an appeal - this lifeline is under threat and deserves much more protection than it currently has. We have an immediate opportunity to remedy that.
The Market in Wuhan and the Suppressed Online Freedoms of Wuhan Citizens
We know that the spread of the coronavirus (COVID-19), began in Wuhan, Hubei Province of China. At a market where the virus passed from animal to human. Importantly though, it also began with a grave violation of the right to freedom of expression, of information and of assembly – online.
Dr Ai Fen, in a recent interview with the Guardian, explained how on 30 December last year she received test results of a patient with “SARS- Coronavirus” and shared this with her doctor friend. Soon, the results and news of the virus were circulating through online chats (“WeChat”) used by the medical community in Wuhan to gather and share information, including the now deceased whistle-blower Dr Li Wenliang. According to reports, Dr Ai was summoned by the hospital administration to “stop spreading rumours about a virus” and could resort only to warning her staff to wear protective gear. Dr Li Wenliag was also coerced into silence after he took to social media to warn about the virus. Several of Dr Ai’s colleagues died. The interview with her, the warnings posted by others online have been censored.
As the Guardian reported, even today the only possibility of information reaching “webizens”, is the now innate reaction of the Chinese public to take screenshots of online information or turn to inventive methods (like using emoji) to evade online censorship, before it is taken down by the government. Government censorship keeps up and posts are taken down with lighting speed; and internet service providers who wish to operate in the country must comply with the “Great FireWall of China”.
In the face of a serious and life-threatening global public health emergency, the right to information which could preserve the right to life, was put on the backburner and this it seemed was the first of many restrictions of rights to come – both in China and subsequently across the world.
It was this disproportional reaction to online activity of the medical community striving to inform the public where the government failed to do so, that kick-started the spread of the coronavirus. In conjunction with the physical spread coming from the market in Wuhan. Sure, the virus may have spread anyway, but preventive and protective measures could have been deployed earlier.
This raises few questions - where would we be if the not only the said infected animal were not sold, but also if the said freedom of expression and assembly online of the medical community in Wuhan were not violated? What can we learn from this example where restrictions of freedoms in one country impact not only the local people, but also the global community? What standards and measures should we put in place to prevent this in the future and hold those responsible to account? To ensure that we can rely on each other to come above the challenges our societies will be facing – including public health and environmental ones.
The online world is one of the crucial spaces where these questions need to be answered. But our rights to exercise expression, information, assembly and association online are under threat and insufficiently protected.
COVID-19 - Current Human Rights Restrictions and Rhetoric
Oftentimes, society expects action by the State to protect their lives and the lives of their loved ones and wider community. In Italy, as in Wuhan, as in many states affected by the virus, swift executive decisions of governments have been taken to primarily restrict the right to freedom of movement, in order to contain the spread of the virus from person to person. This containment has implications on child rights, the right to freedom of religion and belief (religious gatherings) the right to education, the right to access health services and a host of other so-called ‘third generation’ human rights, such as right to work, right to a living wage. In particular, physical assemblies have been banned, including religious gatherings, funerals and sporting events. The COVID-19 virus has also seen an increased discrimination and hate speech - in Italy against persons of Chinese origin. Some leaders even resort to further hate against migrants and foreigners to justify the restrictions on these freedoms and fuel own narratives. In Hungary, migrants have been directly blamed. In the United States, COVID-19 has given further pretext to build “the wall” and keep migrants and the “foreign virus” out.
These are acceptable limitations under international law, for public health reasons, where they are imposed in a proportionate manner. But it is important to remain vigilant and monitor whether restrictions to our freedoms, including physical gatherings, are always legitimate. That state of emergency measures are not misused to abuse fundamental rights, adopt unpopular policies without consultation, and that such emergency measures do not remain in place long after the real threat or danger has lapsed.
The Internet Today - Our Only Available but Unprotected Human Rights Space
Greta Thunberg, in view of the global pandemic, has taken her climate protest online with the hashtag #climatestrikeonline. She and her followers will join action on Friday through this hashtag. They will assemble online. People and different organisations, schools, now use the online space to exercise religious rights and educate under lockdown.
Today, the online space is indeed the only place in which I can gather with the people I wish to be with as each day brings further measures of isolation and restrictions. We use hashtags, YouTube, Facebook, WhatsApp to gather and create online actions, such as that done by my very own children- to connect and spread the message.
Yet, European and international standards and bodies currently fail to fully protect this space, the web citizens of Wuhan and of the world. If COVID-19 does not give testimony just how much protection is lacking in what today is the critical available space to express and assemble, and the only one in case of lockdown, then what will? It did not start with the market in Wuhan only, please recall, it started also in conjunction with a violation of the rights of expression, information and assembly in this very space.
From Threats to Our Online Space….
Our new human rights space online deserves, and desperately requires, protection. But our experience shows that this is a challenging feat to governments, borders and physical spaces. It is also challenging because it creates a new human rights dynamic, questions the classical vertical relationship between the State and the person, as it involves the acts or inaction of third parties who appear as moral guardians of our freedoms - the internet intermediaries. Internet intermediaries with the State already control, and restrict our rights online, the messages we wish to send and the way we want to gather. In concert, they took down the vital information about the new virus in early December, and here we are.
Content is also controlled by internet intermediaries, who apply their own, internally drafted rules on what we may or may not say and how we can appeal blocking or takedown of information. This in addition to some governments who shut down or filter the Internet. That clearly does not suffice.
So what if, as the COVID-19 case shows, content is deleted, by a third party based on an algorithm or unknown criteria, or perhaps in collusion with the demands of a repressive government, for the sake of profit. The rights we dearly hold, become illusory, dead in the water Studies and case-examples have already shown that the goals of commercial operators that are the Internet intermediaries, do not always coincide with the goals of activists using, for instance, social networks for expression, assembly and association. The suppression of the COVID-19 outbreak is another alarming example of the same.
…to Protection of Our Online Space
We have an immediate opportunity to strengthen standards for online freedoms. The UN Human Rights Committee is currently revising standards that regulate assemblies and will support litigation in case of violations. The European Union is developing a digital policy for its members States that would consider greater responsibility on internet intermediaries. OECD launched an observatory to shape policies around development of artificial intelligence for the benefit of the society. The Council of Europe is also drafting recommendations to that effect.
The opportunity for global and European bodies to elevate human rights online by protecting online, internet, freedoms of assembly, association, expression, from State interference, but also from commercial interests of internet service providers, cannot be missed. The world is no longer connected only through physical gatherings of people across oceans and borders. We are connected and gather online, for a variety of purposes. To express solidarity and connect isolated communities, voice opinions, but also for reasons such as access to important, life-saving information. States but also private entities need to undergo the scrutiny to meet the requirements of international law, when deciding what content may or may not be expressed online.
This online space and our gathering online must therefore be protected, in full. The European and global bodies must do so through an elevation of our online gatherings and other online freedoms to the same standards of respect, protection and facilitation as those we conduct in physical spaces. If this task is taken up seriously, “tutto andrà bene” - everything will be OK.