FREEDOM OF EXPRESSION

Free Speech vs Misinformation -

The Imperative Role of State Legislation

Freedom of expression is a component of the human act of communication and interaction within society; the Human Rights Commission states that freedoms of opinion and expression constitute the ‘foundation stone[s] for every free and democratic society’.

By Kar Lok Pang

April 11, 2021

Dmitry S

Potential for denigration of human rights

Article 19 of the Universal Declaration of Human Rights enshrines freedom of expression as a fundamental human right, and this has been accorded recognition in the constitutions of many jurisdictions across the world. The constitutional right to freedom of expression is protected by Article 10 of the Human Rights Act in the United KIngdom, and the concomitant right to free speech is protected by the First Amendment in the United States.

However, freedom of expression is not an absolute right. Governments have restricted freedom of expression in the form of public assemblies where there is a perceived or actual threat to wider societal interests. For instance, while Article 14(1) of the Constitution of the Republic of Singapore guarantees citizens the right to freedom of speech and expression, Human Rights Watch reports that ‘the Singapore government’s use of overly broad criminal laws, oppressive regulations, and civil lawsuits severely curtails freedom of speech and assembly’.

Freedom of expression may not be absolute, yet it is an indisputably important right that cannot be abolished altogether. As such, constitutional protection serves as a public guarantee against complete erosion. That said, recent developments have sometimes been used as justification for limiting freedom of expression, which has arguably become more important in the digital age where speech need not be verbal in nature. 

Social media

The 2011 Arab Spring saw social media being harnessed as a tool to spread democracy, but social media is only a tool. Social media users are especially susceptible to believe misinformation. A tool can be used for both good and evil, and there are signs of the tool being used in the opposite direction of late. The increasing reach of governments into the corporate sphere, as well as the insidious collection of user data without explicit channels for informed consent, point towards the potential of digital technologies to do more harm than good.

In particular, the advent of social media has shifted the public construction of human rights as dispensable — in some instances the wider public interest of societal stability is understandably justified, yet the potential for abuse of power by the state is not curtailed, given the lack of government transparency in the absence of constitutional checks and balances.

Misinformation and the rise of fake news

Popularised by Donald Trump in his presidential campaign, the term ‘fake news’ is in fact no stranger to public vocabulary. It is reported that ‘false news reached more people than the truth; the top 1% of false news cascades diffused to between 1000 and 100,000 people, whereas the truth rarely diffused to more than 1000 people’. Fake news threaten accessibility to accurate, unbiased, and objective information sources, leading to widened cracks in the delicate fabric of social cohesion in an increasingly multicultural and pluralistic world. It is up to governments to straddle the difficult question of balancing the right to freedom of expression with curbing the threat of fake news. Worryingly, false information seems to peak during election periods.

Given the availability of fact-checking tools and resources, and greater awareness of the phenomenon in the political psyche of the public, it is submitted that state interference needs to (i) be limited to particular circumstances, (ii) transparently communicated, and (iii) err on the side of caution more often than not. To do otherwise would open the proverbial floodgates to abuse of power that has no place in a modern society built on the ideals of human autonomy.

The imperative role of the state

What states should not do

Social media has transformed the landscape in which human rights operate, but the role of the state in protecting human rights remains the same. It is important to adopt a considered approach towards perceiving fake news and developing an appropriate response to tackle any problems that may arise. To this end, states should not:

• Manipulate transmission of information via social media for the purposes of election manipulation (‘cyber troop’ activity in India); or 
• Cut off access to social media to mask oppressive regimes (2021 Myanmar junta coup).

What states should do

States play many roles in social coordination, from normative aspects related to upholding human rights, to regulating the promotion of different perspectives while serving public interests. Since legislation passed by the state has a pervasive reach within individual jurisdictions, it is imperative that states remain accountable for their actions.

States should:



• Develop educational campaigns to increase general public savviness (2020 summer of digital activism);
• Work alongside industry stakeholders to strengthen existing digital infrastructure and promote press freedom;
• Only wield legislation sparingly and in clear, unambiguous language, considering its utility as a social tool with communicative purposes.

In summary, governments have much to do (and not do) in regulating free speech. Ultimately, transparency must be demanded for, by setting precedents and following detailed qualifications when potentially infringing human rights.

Kar Lok Pang is a law undergraduate at the University of Oxford. He is a researcher in the Digital Human Rights team under Law & Technology. Kar Lok is interested in promoting state accountability, harnessing law as a force for good, and the impact of technology on regulatory and human rights issues.