Free vs hate speech as world changes
published : 28 Dec 2022 at 04:00
newspaper section: News
While the Asia-Pacific region is home to a wealth of constructive traditions and practices, it is also confronted with the conundrum of how to protect freedom of expression at the same time as tackling hate speech which is rampant today. A morass of laws of a prohibitive and inhibitive kind are emerging, entrenching censorship and self-censorship, especially in the face of more authoritarian trends, rather than a broader range of actions to respect a diversity of opinions and to counter incitement to hatred.
That legalistic panorama overplays the claim of national security, fake news, misinformation and disinformation ("information disorder") to enact a vast panoply of laws which fail to comply with international standards. The litany of laws invites vigilance: the computer crimes law, online falsehood law, anti-fake news law, electronic transaction law, telecommunications law, internet gateway law, cybersecurity law, emergency decree, martial law, and national security/internal security law. To these can be added the ominous provisions of the Criminal Code in some settings, such as on sedition, lese majeste and criminal defamation.
Fortunately, international human rights law guides what should be permissible as constraints on the right to freedom of expression, in particular via Articles 19 and 20 of the Covenant on Civil and Political Rights to which an increasing number of countries are parties. Although that freedom and some other rights, such as on freedom of peaceful assembly and privacy, are not absolute, the limitations to be imposed on them must comply with the international three-part test: the authorities must prove that the limitation in question is not arbitrary and is consonant with the International Rule of Law ("legality"); that it is necessary to respond to the risks ("necessity"); and that it is proportionate to the circumstances ("proportionality").
The fact that non-democracies keep the lid on freedom of expression is a root cause of misinformation and disinformation, exemplified by its propagandistic tendency and the discontented rumblings below. The preferred approach is to aim for an educated public, with digital literacy, to cross-check information as part of open, critical analysis. The more convincing approach is to engender personal wisdom through liberal education to encourage people to choose not to believe fake news rather than to comply with diktats from the top in regards to what to believe or not believe.
In essence, the real risk could be fake (national) security from the authorities rather than alleged fake news from members of the public. After all, international relations analysts tell us that the notion of security is based on three possible threats, namely: actual threats, potential threats and fictitious threats. Fictitious means fake, and what if it emanates from the state itself in terms of its insidious self-justification? There is also now an army of fake e-accounts and trolls released by the powers-that-be to create more information disorder, coupled with firewalls to block messages seen as unpalatable to the authorities and opportunistic internet shutdowns. Fortunately, the United Nations (UN) human rights system helps to expose many of the discrepancies on this front to pierce the veil of opacity.
Aptly, this leads to the issue of hate speech, especially in today's social media and related platforms. Is it to be countered by more law? International guidance as above indicates that a law is needed against incitement to hatred which may lead to discrimination or violence (namely: X provokes Y to do something nasty to Z -- a triangular relationship) rather than a law against general hate (namely: X tells Y that X hates Y -- a bilateral relationship). This is inherent in Article 20 of the said covenant.
Thus other strategies can be explored against hate speech. Again, there is no substitute for an educated population which is also blessed with some empathy towards other people. Reflective spiritual input and meditation also help! To some extent, people have to bear a degree of criticism, unless the latter is tantamount to defamation (and all countries already have laws on defamation, although internationally the trend is to decriminalise that law and aim for only civil liability). Friends can offer counter-speech to help protect those who are targeted through hateful messages.
There can also be contractual obligations with internet service providers and platforms not to harbour hate speech, such as homophobia. The latter is also covered by existing self-regulation of the internet industry itself which can take down such content. Care is needed, however, in regard to that content moderation so that it reflects the international standards mentioned and to avoid censorship. In today's business world, there are also the UN Guiding Principles on Business and Human Rights which invite due diligence measures from the industry to ensure compliance with human rights, especially via human rights impacts assessments and related mitigation measures to prevent, reduce and remedy infringements.
Added to that is the challenge to match the right to freedom of expression with the right to privacy which today opens the door to notice-and-take down of comments in breach of the right to privacy, otherwise known as the "right to be forgotten". The situation is all the more futuristic now because digitalisation and artificial intelligence (AI) impinging on our personal data are ubiquitous. Various vulnerabilities call for special attention; a case in point is child protection. There are international standards based on the Convention on the Rights of the Child to which all countries of this region are parties to tackle child exploitation online and offline and this is based on an equilibrium with freedom of expression. A novel entry point is to have child-online protection laws and programmes which protect the personal data of children from being targeted by algorithms for abusive grooming and over-consumerism.
In reality, there are emerging issues of transparency, accessibility, protection and portability of personal data, explainability of AI, and accountability, coupled with gender-sensibility and victim-sensitivity, deserving more cross-cultural dialogue, which call for our attention as friends of freedom of expression in a delicate balancing act with a rapidly changing world.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN as UN Special Rapporteur, Independent Expert and member of UN Commissions of Inquiry on Human Rights.
Professor of law at Chulalongkorn University
Vitit Muntarbhorn is professor emeritus at the Law Faculty, Chulalongkorn University. He has helped the UN in a various positions, including as UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights.