COVID-19, Freedom of Expression and the Rule of Law

As the world continues to grapple with new waves of COVID-19, some of the challenges that journalists are facing during this pandemic, while exercising their right to free expression and access to information, are transforming into legal challenges in court. While states have an obligation to protect and save lives, some have also employed ’emergency provisions as well as existing laws and regulations […] to directly restrict the exercise of such rights and to introduce further controls using the rationale of the need to protect public health.’

This development is described in the new UNESCO publication “COVID-19: the role of judicial operators in the protection and promotion of the right to freedom of expression: Guidelines”.

International law gives states the power to take measures ‘derogating from certain of their human rights obligations and commitments under international and regional law instruments to the extent strictly required by the exigencies of the situation.’ However, all restrictions on freedom of expression must follow the three principles of the 3-Part Test: restrictions must be clearly described by law; pursue a legitimate aim; and must be proportionate and necessary.

In practice, press freedom organisations have since the onset of the pandemic observed worrying infringements and denials of the right to free expression, access to information and declining media freedom and safety for journalists around the world. It is expected that ‘judicial authorities will soon have to rule on cases related to freedom of the press and freedom of expression in relation to these measures’, as the UNESCO publication states.

While reporting on the pandemic, journalists may become targets of attacks and intimidations and face limitations due to imposed restrictions. Their work should be considered as the provision of an essential service, therefore protection must be provided and any violations to their safety should be thoroughly investigated and prosecuted […] Measures to counter disinformation should avoid general prohibitions on the dissemination of information and assess the impacts on freedom of expression, applying always the three-part test […] to check the conformity with international human rights standard.

from the UNESCO guidelines

The guidelines have been developed for judges and courts, both at national and regional levels, as to ‘ensure the application of international and regional human rights standards of freedom of expression and privacy when ruling on cases involving States’ responses to the COVID-19 outbreak that have an impact to freedom of expression, press freedom, access to information, privacy and safety of journalists.’

The text is currently available in seven languages: English, French, Spanish, Russian, Khmer, Chinese, Arabic.