Oliver, Meredith --- "Censorship, Covid-19 And The Golden Age Of The Anti-Vaccination Movement" [2021] UNSWLawJlStuS 20; (2021) UNSWLJ Student Series No 21-20

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CENSORSHIP, COVID-19 AND THE ‘GOLDEN AGE’ OF THE ANTI-VACCINATION MOVEMENT

MEREDITH OLIVER

I INTRODUCTION

Currently, 3,173,576 people have died during the COVID-19 pandemic, however, promisingly, over a billion vaccine doses have been administered worldwide.^[1] While countries such as India continue to face unspeakable tragedy from the virus as death tolls rise,^[2] others seem on track to quell the threat of the Coronavirus through efficient immunisation regimes.^[3] COVID-19 has highlighted the life-saving power of vaccines – fittingly, this article has been submitted immediately following the World Health Organisation’s (WHO) ‘World Immunisation Week’ 2021.^[4] However, anti-vaccination rhetoric and other COVID-19-related misinformation threaten to undermine these efforts. The rise of social media platforms over the past decade has led to a proliferation of misinformation about vaccines, leading to what has been dubbed a ‘Golden Age’ for the anti-vaccination movement.^[5] Vaccine hesitancy is increasing, leading to a slower uptake of COVID-19 vaccines in some countries, as well as a general resurgence in previously eradicated diseases.^[6] The overwhelming of health systems, inadequacy of preventative measures and failure to ensure herd immunity pose a threat to people’s ‘right to health.’ To respect, protect and fulfil the right to health, in whatever iteration, governments should consider limiting freedom of opinion and expression to block, report and penalise the spread of dangerous health misinformation online. As pandemics are on the rise and pose an ‘existential threat to the health and welfare of people across our planet,’^[7] it is time for a re-think of the interplay between the ‘right to freedom of expression’ and the ‘right to health.’

II WHAT RIGHTS MUST BE BALANCED?

In discussing the ‘right to freedom of opinion expression,’ this article will primarily refer to Article 19.2 of the International Covenant on Civil and Political Rights (ICCPR), which encompasses the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’^[8] The Human Rights Committee’s General Comment 34 on the full Article 19 states the rights are the ‘foundation stone for every free and democratic society’ and that they are necessary ‘for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights’.^[9] The right to freedom of opinion and expression was, of course, earlier enshrined in the Universal Declaration of Human Rights.^[10]

Article 12.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.^[11] This includes ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’.^[12] Under ICESCR, a State party is obligated to uphold this and other economic, cultural and social rights by taking steps ‘to the maximum of its available resources, with a view to achieving progressively the full realization of those rights...’ including through ‘legislative measures.’^[13] While it has been argued that the ‘right to health’ suffers some ‘definitional issues’ as it ‘suggests that people have a right to something that cannot be guaranteed namely perfect health or to be healthy,’ the term ‘right to health’ is the preferred term in international law.^[14] As Brigit Toebes has explained, while economic, social and cultural (ESC) rights are theoretically just as important as civil and political (CP) rights,^[15] ‘in practice, Western States and NGOs, in particular, have tended to treat economic, social and cultural rights as if they were less important,’ as they are ‘often considered nonjusticiable and...regarded as general directives...rather than rights’.^[16] It is vitally important to consider, given the current pandemic, how people’s right to health is not being sufficiently protected because ‘freedom of expression’ is prioritised.

This tension has been explored by Alicia Yamin, writing for the Human Rights Quarterly in 1996, ‘from the perspective of a right to health based on control over health and personal empowerment’.^[17] She noted that ‘health...is both a fundamental precondition and result of people’s capacity to create their own environments’ and that ‘illness is the product not only of human beings’ incomplete domination of nature, but of the domination of some people by others’.^[18] Regarding this idea of ‘domination,’ responsibility for the malignant spread of anti-vaccination ideology on social media lies at the feet of anti-vaccination activists and social media companies themselves, both groups profiting from advertising revenue.^[19] Additionally, disgraced doctors and scientists, like Dr Andrew Wakefield and Judy Mikovits, seemingly hell-bent on revenge against the scientific community and willing to undermine public health for personal glory.^[20] If herd immunity is compromised, vulnerable people will suffer – and not just from the Coronavirus itself. As General Comment 14 states, article 12.1 of ICESCR ‘is not confined to the right to heath care,’ but ‘embraces a wide range of socio-economic factors...including adequate sanitation, safe and healthy work conditions’.^[21] Continued closures of workplaces and social services during the pandemic also clearly have an impact on one’s ‘right to health’ according to this definition.

III DEFINING HEALTH MISINFORMATION

Defining scientific and health ‘misinformation’ and ‘disinformation’ is the first step in understanding the nature of the risk of anti-vaccination rhetoric to a right to health. Swire-Thompson and Lazer have defined misinformation in this context as ‘information that is contrary to the epistemic consensus of the scientific community regarding a phenomenon’. It’s important to note that understanding what ‘reaching consensus’ means (i.e., scientific literacy) is crucial, and that it’s a process. The authors give the example of the risk of thalidomide, which was only recognised after 10,000s of children had already suffered birth defects,^[22] but a more pertinent example here would be the WHO’s change in stance on mask-wearing, which was based on the collection of further and better evidence, but led to public uncertainty.^[23] Disinformation, then, ‘is a coordinated or deliberate effort to knowingly circulate misinformation in order to gain money, power or reputation’. As an example, misinformation, therefore, would be sharing an incorrect piece of information that masks do not reduce the spread of COVID-19, or that the MMR vaccine causes autism.^[24] Disinformation would be doing so in order to raise your public profile, attract advertising clicks or similar. Therefore, disinformation is not a ‘subtype’ of misinformation, but rather implies intentionality.^[25]

A group of Spanish researchers have studied misinformation and disinformation in the COVID-19 context under the umbrella term of ‘fake news,’ with some concerning findings. In the UK as at September 2020, ‘20-30% of respondents had encountered information/news about coronavirus that they thought was false or misleading in the previous week’ and a comparable proportion of respondents encountering information they weren’t sure of, ‘leaving less than 50% declaring they were unaware of false information’.^[26] This leaves open the possibility that within that 50% ‘unaware,’ many were exposed to false or misleading information that they align strongly with or that may shape their views on COVID-19 and/or vaccines, without their knowledge. In its 2020 report, ‘The Anti-Vax Industry – How Big Tech powers and profits from vaccine misinformation,’ The Centre for Countering Digital Hate (CCDH) presented research into the proliferation of anti-vaccination information, pages, followers, subscribers and therefore dollars, involved in the anti-vaccination movement since the start of the pandemic. The ‘feeble measures’ it accuses tech platforms of taking in 2019 after a ‘series of measles outbreaks’ - including Facebook’s decision to ‘downrank or hide anti-vaxx content’ - have been shown to be wanting, the CCDH argues, in light of COVID-19. The CCDH is an international non-governmental organisation based in London and Washington, whose work ‘combines both analysis and active disruption’ of networks who aim to ‘instrumentalise hate and misinformation’ online. Its researchers outline how the anti-vaccination ‘movement’ benefits from a lack of sufficient regulation from the private and public domains, and how a handful of individuals have profited off the back of spreading misinformation and disinformation online.^[27] This would align with the Swire-Thompson and Lazer definition of ‘disinformation’ – intentionality with a view to profit.^[28]

IV HOW DOES THIS IMPACT THE ‘RIGHT TO HEALTH?’

The COVID-19 pandemic is arguably a threat to the right to health, as well as the right to life. Spadaro has argued that ‘States have a due diligence obligation to protect individuals from deprivation of life caused by private persons’ which could include from those carrying deadly diseases, ^[29] but ‘private persons’ could also include social media companies and users. More relevantly to this article, the right to health is being affected by the spread of Coronavirus that ‘overwhelms the healthcare system,’ not only for those seeking COVID-19 treatment, but those with other health treatment needs. Marco-Franco et al.’s findings align with those of the CCDH, in that during the pandemic, ‘lockdown measures and extra time for the generation, circulation and reading of all kinds of news’ led to an increase in ‘denialist positions, conspiracy theories and fake news...which have sown turmoil’ in the population.^[30] The researchers note concerning levels of hesitancy across different countries and demographics and state that ‘without effective antiviral treatment, social isolation and vaccination seem to be the most rational hope for fighting the pandemic,’ but many people either do not trust the vaccine or do not trust its ability to quell the virus.^[31] The explosion of anti-vaccination material online during COVID-19 could also increase the overall risk of vaccine hesitancy to the right to health: allowing the spread of COVID-19 in particular, but also other preventable diseases, to overrun hospital wards, ambulance services and health staff, all of which plays directly into the ‘availability’ and ‘accessibility’ and ‘quality’ components essential to the ‘right to health.’^[32]

As Marco-Franco et al. stated, ‘as a result of misinformation, a citizen may act (or omit to act) with dangerous consequences for him/herself or for third parties’ and this is particularly concerning for COVID-19.^[33] Again, more specifically, misinformation can be linked to vaccine hesitancy. The WHO has defined ‘vaccine hesitancy’ as ‘the reluctance or refusal to vaccinate despite the availability of vaccines’ and noted the resurgence in measles (30% increase globally) as an example of how hesitancy ‘threatens to reverse progress made in tackling vaccine-preventable diseases’.^[34] The CCDH report shows that ‘anti-vaxxers now enjoy a following of 58 million’ – mainly in the US but also with large followings in UK, Canada and Australia – and that ‘this is enough to compromise a future vaccine’s ability to contain the disease’.^[35] The researchers used programs such as SocialBlade, the Internet Archive and ‘existing surveys’ to track followings of leading anti-vaccination accounts on various social media platforms.^[36] Of particular concern is that:

‘...scientists estimate that 82 percent of the population would need to become immune to Covid [sic], either through getting the disease or through a vaccine, in order to safely manage outbreaks. New polling of 2,861 US and UK adults commissioned from YouGov for this report indicates that vaccine refusal and use of social media are linked, and that too few people currently plan to get a Coronavirus vaccine’.^[37]

Indeed, recent reports from Australia, where the vaccine rollout has been significantly slower compared to other countries referenced in the report, show vaccine hesitancy is on the rise, particularly given concerns about the Astra-Zeneca blood-clotting risk. Australian researcher Professor Margie Danchin stated in late April 2021 that from qualitative research on healthcare professionals tasked with rolling out the COVID-19 vaccination program, as well as patients, ‘all the impressions suggest hesitancy has risen significantly’. A leading Victorian GP linked the ‘almost daily media reports on the blood-clot risk...estimated to be as low as one in 200,000 by some experts, was giving the impression [to older Australians due for their vaccines] the extremely rare side effect was more common than it truly was’.^[38] And these concerns are not even based on ‘misinformation’ from social media - just editorial decision-making. The situation gets more complex with social media: according to the CCDH, the percentage of people in the US and the UK who say they will ‘definitely or probably get a vaccine’ is around 10 percentage points lower in those who use social media as their main source of information, compared with those who prefer ‘traditional media’.^[39] If herd immunity is not reached to the required level to stop the spread due to such hesitancy, it is arguable that health misinformation is partly to blame.

Further, in 2019, well before the COVID-19 pandemic brought vaccines to the forefront of global conversation, the WHO included ‘vaccine hesitancy’ in its top 10 threats to global health. Therefore, the human rights implications of allowing anti-vaccination and other health misinformation to proliferate are not confined to the Covid-19 pandemic. The eradication of ‘crippling disease’ such as polio in Afghanistan and Pakistan is tantalisingly close.^[40] However, the source of anti-vaccination rhetoric in privileged countries such as the US, the UK and Australia seems to be concentrated in a select group of wealthy individuals (including Robert F Kennedy Jr, David Wolfe, Del Bigtree and Ty and Charlene Bollinger) for whom polio would not be an immediate concern.^[41] A 2019 editorial from The Lancet Child & Adolescent Health drew on the WHO’s concerns, noting the reported presence of vaccine hesitancy in over 90% of countries, which has led to the resurgence of measles in the UK and the US. In the US, vaccination rates for the measles-mumps-rubella (MMR) vaccine in children has gradually decreased and is as low as 60% for New York’s ultra-Orthodox Jewish population, where, at the time of writing, a measles outbreak was ‘ongoing’. Staggeringly, the US had ‘eradicated’ measles back in 2000. The Lancet stated that ‘vaccine hesitancy cannot be addressed by paediatricians alone: governments and health policy makers also play an essential role in promoting vaccination, educating the general public, and implementing policies that reduce the general health risks associated with vaccine hesitancy’. These include our local Australian policy of denying Family Allowance payments to families whose children are unvaccinated.^[42] However, this analysis addresses the issue once people are already sceptical, already convinced they need to ‘do their own research.’ Should the ‘maximum of resources’ available to State parties be better allocated?^[43] Is it time to stop the problem at its source – the misinformation?

V LIMITATIONS OF HUMAN RIGHTS DURING COVID-19

Human Rights Watch announced on 11 February 2021 that ‘[At] least 83 governments worldwide have used the Covid-19 pandemic to justify violating the exercise of free speech and peaceful assembly’. The justification of ‘public health’ has been used, the organisation reported, to attack, detain and sometimes even kill critics and journalists, as well as healthcare workers. The associate crisis and conflict director at Human Rights Watch, Gerry Simpson, stated that:

‘Excessive and sometimes violent crackdowns on critical speech by governments signify a perilous willingness to sideline a fundamental freedom in the name of countering COVID-19’ ... ‘the obligation of governments to protect the public from this deadly pandemic is not a carte blanche for placing a chokehold on information and suppressing dissent’.^[44]

However, if we separated the ‘carte blanche’ tactics used by governments with an existing reputation as oppressive or authoritarian (e.g., violence and arrests in Brazil, Russia, Uganda and Kenya),^[45] from a necessary and proportionate response, could such concerns about limitations on freedom of expression be allayed? It is true that human rights concerns abound when governments go down this route. Between March and May 2020, Indian authorities arrested more than 640 people for ‘allegedly publishing false information relating to COVID-19’. However, some of this false information reportedly included mere questioning of government policies, e.g., the location of a COVID-19 quarantine facility,^[46] and ‘free speech activists accused the government of carrying out the arrests to curb criticism of authorities’.^[47] About a year later, the Indian authorities have been the target of pleas by top scientists to release crucial pandemic data, as the country’s death toll rises exponentially. Currently, the government has been accused of failing to systematically collect and disseminate true figures.^[48] Freedom of expression advocates note that the ‘Freedom to Speak’ and the ‘Freedom to Know’ are interlocking freedoms, and Indians are arguably being denied their right to know and speak currently,^[49] and seemingly for no reason other than to make the government’s response look better than it is. However, this type of restriction is not what this article is advocating. Rather, we need transparent rules for scientific and health misinformation that disincentivise its spread and stop new conversions to the anti-vaccination or COVID-19-denial camps.

As reported by Human Rights Watch, actual derogation of the freedom of expression has not been widely employed – rather, States are limiting rights.^[50] Dr Audrey Lebret, of the Copenhagen University Faculty of Law, wrote in May 2020 of concerns about the potential for excessive limitations on human rights during the pandemic, arguing that ‘States must ensure that the general measures they adopt to face the crisis do not disproportionately harm vulnerable people’.^[51] Clearly, this ‘vulnerability’ does not quite apply to the handful of individuals behind the majority of anti-vaccination and COVID-19 misinformation and disinformation identified by the CCDH. These include individuals who fund multiple ‘research’ institutions, sell potentially dangerous health products and set up super PACS to get former President Trump re-elected.^[52] Lebret also notes that ‘human rights compliance might require the adoption of specific measures that make the basic rights of vulnerable people as effective as the rest of the population’.^[53] If anti-vaccination and other health-related misinformation has the real potential to cause unnecessary usage of a nation’s health resources, such as staffing, hospital beds, respirators, oxygen, ambulance services and personal protective equipment, then surely it could be considered within a state’s legitimate prerogative to narrowly limit freedom of expression to stop it?

VI LIMITING ONE RIGHT TO PROTECT ANOTHER

Reflecting the inequity between the perceived value of CP rights and ESC rights outlined by Toebes above, European scholar Alessandra Spadaro states that the pandemic has highlighted ‘how human rights are interdependent while at the same time reflecting competing interests that are sometimes hard to reconcile’.^[54] So, while the right to ‘freedom of expression’ in Article 19 may be seen as sacrosanct by many, particularly in the US context,^[55] ‘human rights treaties are dynamic documents’. As the European Court of Human Rights has stated, ‘they are “living instruments” to be interpreted in the light of modern day circumstances.”’^[56] Importantly, the Court has asserted that ‘the Convention is intended to guarantee, not rights that are theoretical or illusory but rights that are practical and effective’.^[57] This lens of practicality aligns with the Human Rights Committee’s General Comment 31, which explains that the means of enforcement of rights under the ICCPR must be accessible, effective and ‘appropriately adapted’ to the needs of ‘certain categories of person’.^[58]

Most importantly, limitations on Article 19 are included in paragraph 3 for the purpose of safeguarding national security or public order, or public health or morality.^[59] Restrictions on such rights must meet conditions of legality, necessity and proportionality, with the latter condition being hailed as the ‘orienting idea in contemporary human rights law and scholarship’.^[60] The CCDH report raises the argument that current policies by governments in collaboration with social media giants, and the regulatory policies of the tech platforms themselves, have not sufficiently quelled anti-vaccination misinformation online, and that companies are still profiting from advertising on anti-vaxx channels while anti-vaxx communities grow.^[61] If we acknowledge that private regulation is not effective, is strict government intervention the next necessary step?

Some countries have already taken the ‘next step,’ like Romania, having explicitly limited so-called ‘fake news’ regarding COVID-19, including online – however it later withdrew its official derogation notice. Jovicic, writing in October 2020, found it was ‘especially worrisome that many countries have put in place limits on freedom of expression,’ but noted that ‘[the] question arises of whether those restrictions were necessary in the situation at hand’.^[62] As already stated, in addition to the Indian situation, Human Rights Watch has reported that many governments have used COVID-19 restrictions as a foil for repression, often stamping out protests or dissent for things completely unrelated to COVID-19.^[63] However, the following section illustrates how it is possible for States to limit some rights to protect others, if they are indeed necessary and proportionate, rather than in oppressive, clearly antidemocratic ways.

VII SOME RELEVANT ‘PRECEDENT’ FOR LIMITING RIGHTS

While this article is not an analysis of ‘compulsory’ vaccination (that is, enforcing vaccinations through fines and exclusions, rather than physical force), it is worth noting that the European Court of Human Rights has very recently found that imposing various ‘consequences’ on non-vaccine-compliant parents, such as exclusion of children from childcare centres and fines for failing to follow vaccination, do not constitute a violation of Article 8 of the ECHR (right to respect for private life). The Court found that the Czech legislation in question, ‘assessed in the context of the national system, had been in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State’ [emphasis added], that is, to ‘prevent diseases that pose a serious risk to health’. The Court focused on the importance of protecting the best interests of children through herd immunity, and that the vaccinations in question were ‘considered effective and safe by the scientific community...’^[64] A press release from the ECHR stated that that the decision, based on strong support by medical authorities, ‘could be said to represent the national authorities’ answer to the pressing social need to protect individual and public health against the diseases in question...’^[65]

Of course, this article also doesn’t focus on the ‘right to private life’ under the ECHR, and many believe the right to freedom of expression is one that should not be curtailed lightly.^[66] However, the same essential elements of necessity and proportionality, key to limiting qualified rights, could theoretically be applied to the current context – that is, curtailing freedom of expression in ways that are proportionate to stop the spread of deadly diseases, reducing vaccine hesitancy and increasing herd immunity. Further, in the Australian context, not only have governments imposed exclusionary and pecuniary disincentives to parents who fail to vaccinate their children,^[67] but there is strong precedent for the ‘freedom of expression’ to be limited, despite criticism. Notably, it has been restricted by certain offences in the Criminal Code (Cth), including s 80.2C regarding ‘advocating terrorism’.^[68]

Certain offences in this space contain, according to submissions by the Public Interest Advocacy Centre, a ‘legitimate aim’ (national security) however some provisions ‘risk burdening free speech in a disproportionate way’ with a ‘chilling effect’ that ‘should not be underestimated’. Further, restrictions that may seem legitimate could have a ‘normalising effect of gradually limiting free speech over successive pieces of legislation’. ^[69] S 80.2 of the Code criminalises the advocating of ‘doing a terrorist act, or the commission of a terrorism offence, and is reckless as to whether another person will engage in that conduct as a consequence’. ‘A person “advocates” the doing of a terrorist act... if the person “counsels, promotes, encourages or urges” the doing of it’. ^[70] This was justified as compatible with human rights as:

‘The criminalisation of behaviour which encourages terrorist acts or the commission of terrorism offences is a necessary preventative mechanism to limit the influence of those advocating extremism and radical ideologies’.^[71]

The offence included a defense that covers the good faith ‘pointing out’ of matters that ‘have a tendency to produce feelings of ill-will or hostility between different groups’.^[72] However, the Parliamentary Joint Committee on Human Rights concluded that this was insufficient because s 80.2 ‘would require only that a person is “reckless” as to whether their words will cause another person to engage in terrorism’ rather than only those intending to do so. Further, that people may hold ‘differing opinions as to the desirability or legitimacy’ of ‘oppressive and non-democratic regimes’.^[73]

This aligns with concerns that misinformation is not necessarily malicious, and that it is hard to discern between genuine health-information-seekers and those intending to harm through disinformation.^[74] However, I would argue that there are key differences between an opinion as to the desirability of certain regimes, and the scientific facts that vaccines are largely safe and stop the spread of diseases, and that many vulnerable people will die if vaccine hesitancy spreads – most pressingly during the COVID-19 pandemic. Further, the penalties for breaches of s 80.2 and s 80.2A range from 5 to 7 years. The crucial ‘proportionality’ balance in the case of terrorism offences is not the same, therefore, as proposals to criminalise corporations’ delay in removing content. However, it is true that this latter legislative approach, taken by Germany in 2018, has been criticised by Human Rights Watch for being ‘vague.’^[75]. It should be noted, however, that s 80.2 and its counterparts still stand in the Criminal Code. Other nations, such as France, have previously had controversial laws encroaching on human rights upheld.^[76] Therefore, the possibility for functional, democratic governments to limit freedom of expression to combat health misinformation in the vaccine and COVID-19 space is not unrealistic – as long as any laws are specifically narrow.

Further, restrictions on freedom of expression may have far fewer negative human rights impacts on vulnerable people than other measures commonly employed during the pandemic. Sekalala et al have argued that measures such as ‘social distancing and self-isolation will disproportionately affect vulnerable people, including the precariously employed, migrant populations and the homeless’.^[77] In ‘restraining civil liberties’ such as article 19.2 ICCPR, states ‘must be transparent in communicating the scientific advice informing decision-making’. This has already been undertaken by governments the world over by governments promoting the importance of social distancing and quarantine, and the same efforts could go towards explaining why vaccine conspiracy videos cannot be shared. Regarding the ‘right to health,’ it has been argued that ‘COVID-19 has illustrated to many countries that their health systems are unable to withstand a prolonged health crisis’ - for example, struggles in providing personal protective equipment and testing materials, and that marginalised groups are ‘particularly vulnerable to violations of the right to health’.^[78] Similarly to Lebret, the authors are concerned with the impact of being vigilant to the needs of vulnerable populations, and that to protect the ‘right to health,’ ‘states must ensure that access to appropriate COVID-related diagnostic testing and emergency health care for such groups is prioritised within healthcare policies’.^[79] The ‘war-like approach’ to the pandemic taken by many nations (as Macron stated, ‘nous sommes en guerre’) has been ‘characterised by the taking of measures severely limiting the enjoyment of personal freedoms, to an extent that was unprecedented in democratic countries in times of peace’.^[80] It is not unthinkable, therefore, that to ensure vulnerable populations are sufficiently protected, other people’s rights to freedom of expression can be limited by the same ‘wartime’ vigour as has birthed extreme quarantine systems, social distancing rules and travel restrictions.

VIII CRIMINALISING MISINFORMATION

Two leading public health figures have recently debated the idea of criminalising the spread of anti-vaccine information for the BMJ, a leading, peer-reviewed medical journal. Melissa Mills, Professor of demography and sociology at the University of Oxford and director of the Leverhulme Centre for Demographic Science, noted the link between vaccine hesitancy and measles resurgence and argued that the world is in the midst of an ‘infodemic’ – ‘an overabundance of information, both factual and false’. She explained that people have trouble sorting through this information and that ‘over 65% of YouTube’s content about vaccines seems to be about discouraging their use’ through false information about autism (often linked to the disgraced Dr Andrew Wakefield) and mercury levels. Algorithms used on social media platforms are ‘leading people into increasingly narrow echo chambers of disinformation’. Recent laws in enacted in various countries, particularly in Germany, where social media companies are required to remove certain content within 24 hours or risk a hefty fine, have apparently led to risk aversion and over-moderation of content, limiting freedom of expression. However the alternative - that is, a goal of ‘increasing media literacy’ - fails to acknowledge the emotional impact of anti-vaccination rhetoric and is largely ineffective.^[81] This emotional impact could include the dopamine rush from ‘likes,’ personal ‘testimonies’ and the cult-like flavour of Facebook groups.^[82] While acknowledging the difficulty in the ‘platforms as publishers’ debate (which has recently caused controversy in Australia),^[83] Mills states that criminalisation is reasonable towards people intentionally spreading harmful false information:

‘The freedom to debate, and to allow the public to raise legitimate vaccine concerns to fill the knowledge void, should not extend to causing malicious harm’.

This author believes that when considering the profit motives of the influential figures listed in the CCDH report, that the criminalisation, source tracking and tracing strategies and legislative algorithmic adjustment enforcement suggested by Mills hold weight.

Meanwhile, Jonas Sivelä, senior researcher on infectious disease control and vaccinations at the Finnish Institute for Health and Welfare, despite agreeing that ‘the global spread of misinformation, fake news and conspiracy theories...constitute a considerable risk for society in general...particularly vaccination’ argued against criminalisation. He noted ‘the strongest arguments’ related to ‘the rule of law and democracy, including freedom of speech,’ arguing that anti-vaccination misinformation is not an appropriate case for the allowable limitations on freedom of expression under the Universal Declaration of Human Rights. This is predominantly because criminalisation could capture genuine questions about vaccines, not only deliberate disinformation, and ‘suffocating’ people’s concerns instead of discussing them ‘would only result in an increased lack of confidence in the long run,’ leading to further misinformation as people often feel that anti-vaccination disinformation and conspiracy theories are ‘expressions of resistance’. Contrary to the evidence raised by the CCDH, Sivelä suggests that the ‘technical solutions’ already employed by private actors like Facebook ‘have proved successful’ in addressing misinformation.^[84]

While Sivelä seems to believe that sufficient addition of truthful scientific information to the ‘debate’ will work in tackling the problem of misinformation, it has been argued that the ‘marketplace of ideas’ has been fundamentally damaged. In the context of the United States’ First Amendment and the 2016 presidential election, Thorson and Stohler argued that the ‘marketplace of ideas theory is an ill-suited theory for determining when misinformation deserves constitutional protection’. The theory, that ‘good ideas will win out over inferior competitors if competition is uninhibited’ is key to the strong freedom of expression protections in the US, enshrined in the First Amendment. However, the authors analysed the evidence that ‘the effects of misinformation can linger even after a person recognises the misinformation to be false’. ^[85] This is a phenomenon called ‘belief echoes.’^[86] This same principle could easily be applied to vaccine hesitancy – even when people see government advertisements promoting vaccine safety, they may remain vaccine hesitant due to exposure to mis- and disinformation online. Further, the CCDH argues that current measures undertaken by private companies to quell misinformation ‘were ineffective because they underestimated the sophistication of the anti-vaxx ecosystem’.^[87] Thorson and Stohler concluded, however, that ‘only when political misinformation substantially interferes with political participation, thereby threatening individuals’ democratic competence, should courts begin to consider whether government regulation is appropriate’.^[88] In the age of social media and the 24-hour news cycle, the authors note that people are exposed to a gluttony of information, and able to receive facts and fact-checking more quickly. However, ‘the marketplace of ideas makes a critical assumption’ that ‘reading a correction should cause attitudes initially affected by false claims to revert back to their pre-exposure state’. Thorson’s own research shows this assumption to be false – people might acknowledge the ‘true’ information, however their attitudes remain influenced by the prior exposure to misinformation.^[89] Therefore, it seems it would be more effective for governments to intervene at the source of the misinformation, rather than attempt to flood the ‘market’ with correct information, corrupted as it is by algorithmic feeds and echo chamber groups.

Thorson and Stohler note that ‘metaphorical market failures have been held to support restriction of speech’ and that ‘the [US Supreme] Court has often tolerated false statements because it has feared that any prohibitions on false speech could have a so-called “chilling effect” on otherwise permissible speech that might discourage a free exchange of ideas’.^[90] This concern is shared by those such as Dr Richard Armitage, in a letter to the editor of Public Health in 2021 entitled ‘Online “anti-vax” campaigns and COVID-19: censorship is not the answer.’ Armitage acknowledges the harmful effects of anti-vax misinformation, citing the CCDH report statistic that ‘since the start of the pandemic, the largest anti-vax social media accounts have gained more than 7.8 million followers’ which has ‘triggered the UK government and social media platforms to agree to a package of measures to reduced online vaccine disinformation, including the labelling of posts marked as untrue by third party checkers’. While citing the CCDH report, Dr Armitage does not acknowledge the report’s assertions that current measures have not been sufficiently effective.^[91] Laidlaw has criticised the reliance on non-government actors or ‘gatekeepers, such as ISPS, mobile and search providers’ as inappropriate for the protection of human rights, as they lack the ‘characteristics of due process, proportionality or transparency that typify public law models’.^[92]

Regarding proposals for public law intervention – e.g. the German-style imposition of financial and criminal penalties on social media platforms that do not remove such content quickly enough – Dr Armitage is concerned.^[93] This aligns with Sivelä’s concern in that suppression of genuine concerns can lead to further distrust of authority and that ‘such emergency laws would enforce censorship and deplatforming and threaten the democratic cornerstone of freedom of speech’.^[94] However, coming back to the statement of the ECHR, we need to guarantee rights that are ‘practical and effective,’ not ‘theoretical or illusory’.^[95] Of course, ‘freedom of expression’ is not theoretical or illusory. But the act of spreading health disinformation – properly defined in legislation and accessible per the principle of legality – serves no practical purpose, other than for those profiting from clicks in dollars or self-esteem. Meanwhile, the benefits of restricting it in some ways include saving lives, jobs and human dignity.

One of the key flaws in arguments against censoring or penalising heath misinformation such as Dr Armitage’s is that it relies on the ‘marketplace theory’ of ideas^[96] – arguing that ‘all ideas – even bad ones – must be allowed a public airing and their qualities debated in the marketplace of ideas’.^[97] This approach fundamentally misunderstands the challenges posed by social media to ‘the marketplace,’ and ignores problems of media illiteracy and the ‘belief echoes’ principle explained previously.^[98] While Armitage states that ‘widespread deplatforming of anti-vax campaigners is unlikely to dissuade those sympathetic to those messages but rather reinforce strongly held beliefs’ and increase mistrust in authority,^[99] as the CCDH argued, one cannot form a belief without exposure in the first place.^[100] Further, the COVID-19 pandemic has actually shown that ‘people around the world [are] willing to give extreme deference to the state and readily accept severe restrictions to their freedom of movement...’^[101] Limitations on freedom of expression therefore have social precedent as well as legal precedent. With transparency and accountability through elections, governments are far better placed to intrude on the sharing of information online than private actors such as Facebook. While it may be true that this may push some anti-vaccination communities ‘underground,’ stopping misinformation from reaching and radicalising any more new converts looks like the more effective solution.

IX CONCLUSION

In conclusion, the COVID-19 pandemic has exposed weaknesses in existing measures to stop the spread of health misinformation. These weaknesses mean more is necessary to protect the right to health, in terms of immunisation programs, access to health facilities and interrelated socio-economic factors encompassed in the ICESCR. In the current pandemic, ‘human rights are inextricably linked to public health outcomes and interconnected,’ therefore ‘governments should adopt laws that are proportionate, necessary and non-discriminatory towards society’s most vulnerable members’.^[102] A failure to intervene and limit the freedom of expression in a narrow, proportionate way - that is, censoring and/or penalising content identified as misinformation by the scientific authorities - at a point when vaccine hesitancy has the potential to affect not only the continuing devastation of Coronavirus but infectious diseases into the future, could arguably be seen as a failure to protect the right to health. It is time to change the ‘siloed’ approach to human rights,^[103] where the right to health is not prioritised by global structures^[104] and seen as inferior to civil and political rights,^[105] and ‘radically rethink state obligations to safeguard health systems and prepare for the future’.^[106]

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^[1] WHO Coronavirus (COVID-19) Dashboard, Overview <https://covid19.who.int/>.

^[2] ‘India Suffers Record Daily Coronavirus Deaths as Total New Cases Dip Slightly’ ABC News (Online news article, 2 May 2021) <https://www.abc.net.au/news/2021-05-02/india-suffers-record-daily-coronavirus-covid-19-deaths/100111164>.

^[3] Sarah Boseley and Linda Geddes, ‘Figures on Covid Deaths Post-Jab Show Vaccine’s Success, Scientists Say’ Guardian (online, 30 April 2021) <https://www.theguardian.com/world/2021/apr/30/figures-on-covid-deaths-post-jab-show-vaccines-success-scientists-say>.

^[4] World Health Organization, World Immunization Week 2021 (24-30 April 2021) <https://www.who.int/campaigns/world-immunization-week/2021>.

^[5] Centre for Countering Digital Hate, ‘The Anti-Vaxx Industry: How Big Tech Powers and Profits from Vaccine Misinformation’ 2020, <https://www.counterhate.com/anti-vaxx-industry> (‘CCDH’), citing Richard Stein, ‘The Golden age of Anti-Vaccination Conspiracies’ (2017) 7(4) Germs 168, doi: 10.18683/germs.2017.1122.

^[6] World Health Organisation, ‘Ten Threats to Global Health in 2019’ (web page, 2019) <https://www.who.int/news-room/spotlight/ten-threats-to-global-health-in-2019> (‘WHO Report’).

^[7] P Daszak et al., ‘IPBES Workshop Report on Biodiversity and Pandemics’ (2020) Intergovernmental Platform on Biodiversity and Ecosystem Services, doi:10.5281/zenodo.4147317, 10.

^[8] International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19.2 (‘ICCPR’).

^[9] Human Rights Committee, General Comment No 34: Article 19: Freedoms of Opinion and Expression, 102^nd sess, UN Doc CCPR/CGC/34 (11-29 July 2011), [2]-[3].

^[10] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd polen mtg, UN Doc A/810 (10 December 1948) art 19.

^[11] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).

^[12] Ibid art 12.2.c

^[13] Ibid art 2.1.

^[14] Brigit Toebes, ‘Towards an Improved Understanding of the International Human Right to Health’ (1999) 21(3) Human Rights Quarterly 661 (‘Toebes’).

^[15] Ibid, citing Vienna Declaration and Programme of Action, UN GAOR, 48^th sess, 1^st pt, 22^nd mtg, UN Doc A/CONF.157/23 (12 July 1993) [5].

^[16] Toebes (n 14).

^[17] Alicia Ely Yamin, ‘Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law’ (1996) 19(2) Human Rights Quarterly 398, 399.

^[18] Ibid 402.

^[19] CCDH (n 5) 31.

^[20] Ibid 10, 17.

^[21] Committee on Economic, Social and Cultural Rights, General Comment No 14: Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, 22^nd sess, UN Doc E/C.12/2000/4 (11 August 2000) [4] (‘General Comment 14’).

^[22] Briony Swire-Thompson and David Lazer, ‘Public Health and Online Misinformation Challenges and Recommendations’ (2020) 41 Annual Review of Public Health, 41:433-451, 434 (‘Swire-Thompson’).

^[23] Ying Shan Doris Zhang et al, ‘Public Health Messages About Face Masks Early in the COVID-19 Pandemic: Perceptions of and Impacts on Canadians’ (2021) Journal of Community Health, <https://doi.org/10.1007/s10900-021-00971-8>.

^[24] Swire-Thompson (n 22) 444, citing Wakefield AJ, Murch SH, Anthony A, Linnell J, Casson DM, et al. 1998. RETRACTED: Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and pervasive developmental disorder in children, Lancet 351:637–41.

^[25] Swire-Thompson (n 22) 435.

^[26] Julio Emilio Marco-Franco et al, ‘COVID-19, Fake News and Vaccines: Should Regulation be Implemented?’ (2021) International Journal of Environmental Research and Public Health 18(2) 744, 3 (‘Marco-Franco’).

^[27] CCDH (n 5).

^[28] Swire-Thompson (n 22) 435.

^[29] Alessandra Spadaro, ‘COVID-19: Testing the Limits of Human Rights’, 7 April 2020 European Journal of Risk Regulation 2020, doi:10.1017/err.2020.27, 2 (‘Spadaro’).

^[30] Marco-Franco (n 26) 1.

^[31] Ibid 4-5.

^[32] General Comment 14 (n 21).

^[33] Marco-Franco (n 26) 5-6.

^[34] WHO Report (n 6).

^[35] CCDH report (n 5) 4 (Imran Ahmed).

^[36] Ibid.

^[37] CCDH (n 5) 6.

^[38] Melissa Cunningham, ‘Huge Hit: Doctors, Vaccine researchers See Surge in Vaccine Hesitancy’ Sydney Morning Herald (online, 30 April 2021) <https://www.smh.com.au/national/huge-hit-doctors-vaccine-researchers-see-surge-in-vaccine-hesitancy-20210428-p57n0q.html>.

^[39] CCDH (n 5) 6

^[40] WHO Report (n 6).

^[41] CCDH (n 5) 9-7.

^[42] Lancet, ‘Vaccine Hesitancy: A Generation at Risk’ (2019) 3(5) Lancet Child and Adolescent Health (online, 1 May 2019) <https://doi.org/10.1016/S2352-4642(19)30092-6> (‘Lancet’).

^[43] ICESCR (n 11) art 2.1

^[44] Human Rights Watch, ‘Covid-19 Triggers Wave of Free Speech Abuse’ (online, 11 February 2021), <https://www.hrw.org/news/2021/02/11/covid-19-triggers-wave-free-speech-abuse> (‘HRW’).

^[45] Article 19, ‘The Global Expression Report 2019/2020: The State of Freedom of Expression Around the World’ 2020, < https://www.article19.org/gxr2020/>.

^[46] HRW (n 44); ‘Police Crack Down on Covid-19 “Misinformation,” Activists Concerned’ Hindustan Times (online, 30 April 2020) < https://www.hindustantimes.com/india-news/about-500-cases-lodged-in-india-for-social-media-posts-on-covid-19/story-PBaxt7oNs9IdPNUCVRiUUM.html>.

^[47] HRW (n 44).

^[48] Ashok Sharma, ‘Indian Scientists Appeal to Modi for Key Virus Data to Save Lies’ Sydney Morning Herald (online, 1 May 2021) <https://www.smh.com.au/world/asia/indian-scientists-appeal-to-modi-for-key-virus-data-to-save-lives-20210501-p57o0g.html>.

^[49] ‘What we do’ Article 19 (Web Page) <https://www.article19.org/what-we-do/>.

^[50] HRW (n 44).

^[51] Audrey Lebret, ‘COVID-19 Pandemic and Derogation to Human Rights’ 7(1) Journal of Law and Biosciences (2020), doi:10.1093/jlb/lsaa015, 1 (‘Lebret’).

^[52] CCDH (n 5) 9-17.

^[53] Lebret (n 51) 9.

^[54] Spadaro (n 31) 2.

^[55] Emily A Thorson and Stephan Stohler, ‘Maladies in the Misinformation Marketplace’ (2017) 16(Symposium) First Amendment Law Review 442 (‘Thorson and Stohler’).

^[56] Tyrer v The United Kingdom (Judgement) (European Court of Human Rights, Chamber, 5856/72, 25 April 1978) [33].

^[57] Artico v Italy (Judgement) (European Court of Human Rights, Chamber, 6694/74, 13 May 1980) [33] (‘Artico v Italy’)

^[58] Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, (CCPR/C/21?Rev.1/Add.13, 29 March 2004) (‘General Comment 31’) [15].

^[59] ICCPR (n 8) art 19.3.

^[60] Australian Law Reform Commission, Traditional Rights and Freedoms Encroachments by Commonwealth Laws (31 July 2015) <https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/1-the-inquiry-in-context/justifying-limits-on-rights-and-freedoms/> (‘ALRC’) citing G Huscroft, B Miller and G Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014).

^[61] CCDH (n 5) 4.

^[62] Sanja Jovičić, ‘COVID-19 Restrictions on Human Rights in the Light of the Case-Law of the European Court of Human Rights’ (2021) 21 ERA Forum, doi:10.1007/s12027-020-00630-w, 545-560, 547 (‘Jovičić’).

^[63] HRW (n 44).

^[64] Council of Europe: European Court of Human Rights, Fact Sheet – Health, April 2021 <https://www.echr.coe.int/documents/fs_health_eng.pdf>, citing Vavrička and Others v Czech Republic (Judgement) (European Court of Human Rights, Grand Chamber, Application Nos. 47621/13 and 5 others, 8 April 2021).

^[65] Council of Europe: European Court of Human Rights, Press Release: Court’s First Judgement on Compulsory Childhood Vaccination: No Violation of the Convention’ (8 April 2021).

^[66] Jovičić (n 61); Richard Armitage, ‘Online “Anti-Vax” Campaigns and COVID-19: Censorship is Not the Solution’ 190(s29-e30) (2021) Public Health (Lancet), doi:10.1016/j.puhe.2020.12.005 (‘Armitage’).

^[67] Lancet (n 42).

^[68] Criminal Code (Cth) 1995, s 80.2C (‘Criminal Code’).

^[69] ALRC (n 60) [3.38], citing Public Interest Advocacy Centre, Submission 55.

^[70] Criminal Code (Cth) 1995 s 80.2C.

^[71] Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) [138].

^[72] Criminal Code (Cth) 1995 s 80.3; ALRC (n 60) [3.40].

^[73] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Fourteenth Report of the 44th Parliament (October 2014) [1.259], cited in ALRC (n 55) [3.43].

^[74] Melinda C Mills and Jonas Sivelä, ‘Should Spreading Anti-Vaccine Misinformation be Criminalised?’ (2021) 372(272) BMJ, doi:10.1136/bmj.n272 (‘Mills and Sivelä’); Armitage (n 67).

^[75] ‘Germany: Flawed Social Media Law’, Human Rights Watch, (Web Page, 14 February 2018) <https://www.hrw.org/news/2018/02/14/germany-flawed-social-media-law>.

^[76] See, e.g., Case of S.A.S. v France (Judgement) (European Court of Human Rights, Grand Chamber, Application no. 43835/11, 1 July 2014).

^[77] Sharifah Sekalala, Lisa Forman, Roojin Habibi and Benjamin Mason Meier, ‘Health and Human Rights are Inextricably Linked in the COVID-19 Response’ (16 May 2020) 5(9) BMJ Global Health 5:e003359, 3 (‘Sekalala’).

^[78] Ibid.

^[79] Ibid.

^[80] Spadaro (n 31) 1, citing Emmanuel Macron, Addresse aux Français du Président de la République (16 March 2020) <http://www.elysee.fr/emmanuel-macron/2020/03/16/adress-aux-francais-covid19> .

^[81] Mills and Sivelä (n 74).

^[82] CCDH (n 5) 24-5.

^[83] See, e.g., Fairfax Media Publications Pty Ltd v Voller [2020] NSWCA 102.

^[84] Mills and Sivelä (n 74).

^[85] Thorson and Stohler (n 55) 442.

^[86] Ibid 443.

^[87] CCDH (n 5) 7.

^[88] Thorson and Stohler (n 55) 442.

^[89] Ibid 449.

^[90] Ibid 450, citing New York Times Co v. Sullivan [1964] USSC 40; (1964) 376 US 254, 300.

^[91] Armitage (n 66).

^[92] Emily B. Laidlaw, ‘The Responsibilities of Free Speech Regulators: An Analysis of the Internet Watch Foundation’ (2012) 20(4) International Journal of Law and Information Technology 312, 314-5.

^[93] Armitage (n 66).

^[94] Ibid.

^[95] Artico v Italy (n 57).

^[96] Thorson and Stohler (n 55).

^[97] Armitage (n 66).

^[98] Thorson and Stohler (n 55).

^[99] Armitage (n 66).

^[100] CCDH (n 5).

^[101] Rajat Khosla, Pascale Allotey and Sofia Gruskin, ‘Global Health and Human Rights for a Postpandemic World’ (2020) BMJ Global Health, 5:e003548 (‘Khosla’).

^[102] Sekalala (n 77) 5.

^[103] Ibid.

^[104] Khosla (n 101) 1.

^[105] Toebes (14) 661.

^[106] Sekalala (n 77) 5.