ISSN 2330-717X

In COVID-19 Fight, Free Speech Becomes Collateral Damage – Analysis

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In trying to control the pandemic narrative, governments in the region have turned to draconian tools, muzzling media, arresting critics and bombarding social media giants with requests to take down posts and shut down accounts.

At first, journalist Tugay Can had no idea why he had been taken in for police questioning on March 25 last year in the Turkish port city of Izmir. Then cybercrime officers told him he was suspected of spreading fear and panic because of a report he wrote, published two days earlier, about COVID-19 outbreaks in two community health centres in the city that were subsequently quarantined.

“After I confirmed it with my sources, I reported the situation”, Can, who at the time worked for the local Izmir newspaper Iz Gazete, told BIRN.

Pressed to name his sources, Can refused. Hours of questioning resulted in a charge of spreading fake news and causing panic. The case was dropped several months later, but Can’s chilling experience was far from a one-off. 

According to the media rights watchdog Reporters Without Borders, Can was among 10 Turkish editors and reporters interrogated just in March of last year concerning their coverage of the pandemic that had just begun. 

“Governments are using the pandemic as an advantage over freedom speech,” Can said.

Turkey is well-known for its jailing of journalists, but it was not the only country in the region to employ draconian tools to control the pandemic narrative. Nor have journalists been the only targets.

BIRN has confirmed dozens of cases  in which regular citizens have faced charges of causing panic on social media or in person. There are indications the true number of cases runs into the hundreds.

Whether dealing with accurate but perhaps unflattering news reports or with what the World Health Organisation called last year an “infodemic” of false information, governments have not hesitated to turn to social media giants to get hold of the information that could help them track down those deemed to be breaking the rules.

“Every government has a duty to promote reliable information and correct harmful and untrue allegations in order to protect the personal integrity and trust of citizens,” said Tea Gorjanc Prelevic, head of the Montenegrin NGO Human Rights Action.

“But any measure taken to combat misinformation should not violate the fundamental right to expression.”

Internet sites shut down

Battling an invisible enemy, governments across the region have sought to restrict information while cracking down on media reporting or social media posts that deviate from the official narrative. ‘Misinformation’ has been criminalised.

Some of these restrictions were part of the states of emergency that were declared; others were introduced with new legislation that outlasts any temporary emergency decrees.

But who draws the line between the right to free speech and the need to preserve public order?

In its November 2020 COVID and Free Speech report, the Council of Europe rights body cautioned that “crisis situations should not be used as a pretext for restricting the public’s access to information or clamping down on critics.” 

But that’s precisely what has happened in some countries.

In Hungary, the Penal Code was amended to criminalise the dissemination of “false or distorted facts capable of hindering or obstructing the efficiency of the protection efforts” for the duration of a state of emergency, first between March and June and again since November.

Parliament subsequently passed a bill making it easier for governments to declare such emergencies in future. In March, the government introduced punishments of one to five years in prison for spreading “falsehoods” or “distorted truth” deemed to obstruct efforts to combat the pandemic. 

Similar restrictions were imposed in Bosnia’s mainly Serb-populated Republika Srpska entity and in Romania. 

In Bucharest, the government closed down a dozen news sites for promoting false information concerning the pandemic.

The Centre for Independent Journalism, CJI, an NGO that promotes media freedom and good journalistic practices, has raised concern that provisions enacted as part of a state of emergency between mid-March and mid-May 2020 to combat the spread of the novel coronavirus in Romania could hamper the ability of journalists to inform the public.

“The most worrying aspect of all this is, from my perspective, the limitations to the access to information of public interest,” said CJI executive director Cristina Lupu.

“The lack of transparency of the authorities is a very bad sign and the biggest problem our media faces now,” Lupu told BIRN, lamenting the fact it left the public without “access to timely information.”

In March 2020, the Organisation for Security and Cooperation in Europe, OSCE, raised concern about what it said was the “removal of reports and entire websites, without providing appeal or redress mechanisms” in Romania.

The Venice Commission, the CoE’s advisory body on constitutional affairs, stressed that even in emergency situations, exceptions to freedom of expression must be narrowly construed and subject to parliamentary control to ensure that the free flow of information is not excessively impeded. 

“It is doubtful whether restrictions on publishing “false” information about a disease that is still being studied can be in line with the [Venice Commission] requirement unless it concerns blatantly false or outright dangerous assertions,” it said.

Instead of prevention, fines and prison terms

Early on in the pandemic, the Republika Srpska government issued a decree allowing it to introduce punitive measures, including fines, for spreading ‘fake news’ about the virus in the media and on social networks during the state of emergency.

According to the decree, anyone using social or traditional media to spread ‘fake news’ and cause panic or public disorder faced possible fines of between 500 and 1,500 euros for private individuals and 1,500 and 4,500 euros for companies or organisations. It is not known how many people have been fined. The decree was dismissed in April.

In Montenegro, Article 398 of the Criminal Code, introduced in 2013, foresees a fine or a prison sentence of up to 12 months for the spreading of false news or allegations which cause panic or serious disturbances of public order or peace. For journalists, the punishment runs to three years in prison. The law was hardly used until protests erupted at the end of 2019 over a controversial religious freedom law.

In July 2019, long before the pandemic, North Macedonia’s government unveiled an action plan to deal with ‘fake news’, and doubled down in March 2020 with a vow to punish anyone deemed to be sharing disinformation about the novel coronavirus.

Skopje-based communications and new media specialist Bojan Kordalov said authorities would be better off focusing on prevention and raising awareness.

“It is necessary to build a system of active and digital transparency, as well as to create a real strategy for fast and efficient two-way communication of institutions with citizens and the media, which means highly-trained and prepared staff for 24-hour monitoring and publication of official and credible information to the public,” Kordalov told BIRN.

In Turkey, media censorship, particularly of online outlets, has increased since the onset of the pandemic, according to a report published in November by the Journalists’ Association of Turkey.

According to the report, between July and September 2020 alone, RTUK, the state agency for monitoring, regulating and sanctioning radio and television broadcasts, issued 90 penalties against independent media, including halts to broadcasting and administrative fines.

The government also passed several new draconian laws concerning digital rights and civil society organisations, forcing social media companies to appoint legal representatives to respond to government demands, including those requiring the closure of accounts or deleting of social media posts.

It is not known how many people were investigated or arrested under the new measures, but administrative fines during the pandemic totalled roughly one billion Turkish liras, or 115 million euros.

‘Fake news’ arrests

In North Macedonia, fake news stories shared on social media ranged from a report that a garage was being used as a COVID-19 testing facility to health authorities being accused of negligence that led to the death of two sisters from COVID-19 complications. One fake story claimed food shortages were imminent.

According to the country’s Ministry of Interior, by September 2020 authorities had acted on a total of 58 cases stemming from the alleged dissemination of fake news related to COVID-19. Thirty-one cases were forwarded to prosecutors and criminal charges have been pressed in three, a ministry spokesman told BIRN.

In Serbia, the penalty for the crime of causing disorder and panic is imprisonment for between three months and three years, as well as a fine. According to Serbian Interior Ministry, in the first two months of the pandemic dozens of people were charged.

After she broke news about the disarray in the Clinical Centre of Vojvodina, Serbia’s northern province, Nova.rs reporter Ana Lalic was questioned by police and her home was searched.

In neighbouring Montenegro, a heated political row over a disputed law on religions saw some people arrested for spreading panic even before the country confirmed its first case of COVID-19.

BIRN was able to confirm 14 cases in which journalists, editors and members of the public were arrested for causing panic.

Similarly in Turkey, the interior ministry investigated, fined and detained hundreds of people in the first few months of the pandemic over their social media posts. Later, however, the ministry stopped publishing such data.

Critics say the government was determined to muzzle complaints about its handling of the pandemic and the economy.

“Turkey in general has a problem when it comes to freedom of speech,” said Ali Gul, a lawyer and rights activist. “The government increases its pressure because it does not want people to speak about its failures.” Ali Gul.

In Croatia, no journalist has been charged with spreading fake news during the pandemic, but that’s not to say there was not any misleading information.

“Without any hesitation, I can say that, unfortunately, a large number of citizens have been involved in spreading false news,” said Tomislav Levak, a teaching assistant and PhD candidate at the Academy of Art and Culture in the eastern Croatian city of Osijek. “But in my opinion, in most cases, it is actually unintentional because they do not think critically enough.”

The Interior Ministry said that it had registered 40 violations of Article 16 of the Law on Misdemeanors against Public Order and Peace, “which are related to the COVID-19 epidemic”.

Rise in state requests to social media giants

The transparency reports of Facebook and Twitter shed light on the scale of government efforts to find and track accounts suspected of spreading panic.

According to Twitter, in 2020 emergency disclosure requests – when law enforcement bodies seek account information – accounted for roughly one out of every five global information requests submitted to Twitter, increasing by 20 per cent during the reporting period while the aggregate number of accounts specified in these requests increased by 24 per cent.

Turkey accounts for three per cent of all government requests for information from Twitter.

In the first six months of last year, Turkey registered a 160 per cent increase in emergency requests compared to the same period in 2019.

North Macedonia saw a 175 per cent increase.

In terms of removal requests, they multiplied several times over from Serbia, Turkey and Poland.

As for Facebook, Turkey last year submitted 6,171 requests, a threefold increase from 2019. In 4,904 cases, Facebook disclosed data, compared to 1,513 cases in 2019. Poland made 4,572 requests, up from 3,397 in 2019, and received information back in 2,666 cases, compared to 1,902 the previous year.

When it comes to legal process requests – when states ask for account information to aid an investigation – Turkey and Poland lead the region with 6,143 and 4,200 requests respectively, roughly double the numbers in 2019.

Compared to the same period in 2019, Facebook data shows a significant rise in all sorts of requests from most countries in the region.

In terms of preservation requests – when law enforcement bodies ask Facebook to preserve account records that may serve as evidence in legal proceedings – Bosnia and Herzegovina registered an increase of just over 150 per cent. 

Turkey accounts for 3.55 per cent of and Poland 2.63 per cent of all government requests for information from Facebook.

Lawsuits designed to silence

And if that wasn’t enough, some media faced lawsuits that watchdogs say were designed simply to stop the free flow of information – a so-called SLAPP, or Strategic Lawsuit Against Public Participation, the purpose of which is to censor or intimidate critics by burdening them with the cost of a legal defence.

In Poland, the publisher and journalists of the weekly Newsweek Polska were subjected to a SLAPP for their reporting on Polish clothing company LLP, owner of the Reserved brand, which the weekly said had been sending masks bought in Poland to its factories in China despite a severe shortage in Poland.

The company is seeking damages of €1.37 million, an apology, the removal of articles about LPP published on March 22 and a “ban on disseminating claims that suggest that the company’s position on this matter is untrue.”

The case is ongoing. 

Also in Poland, a court dismissed lawsuits brought against media outlet Wyborcza by Polish KGHM, one of the world’s biggest producers of copper and silver, over stories revealing that the company had paid huge sums of money for worthless masks from China.

In Turkey, a court granted a take-down request by pasta producer Oba Makarna over a report that 26 of its factory workers in the south-central city of Gaziantep had tested positive for COVID-19. According to the court ruling, while the report was true, it damaged the company’s commercial reputation.

In its report, the CoE warned that restrictions introduced during the pandemic could give rise to increased use of civil lawsuits, particularly defamation cases.

While their use did not increase dramatically during the height of the pandemic, there is some concern that pandemic-related reporting will be subjected to SLAPP lawsuits and defamation cases in the future, it said.

Balkan Insight

Balkan Insight

The Balkan Insight (fornerkt the Balkin Investigative Reporting Network, BIRN) is a close group of editors and trainers that enables journalists in the region to produce in-depth analytical and investigative journalism on complex political, economic and social themes. BIRN emerged from the Balkan programme of the Institute for War & Peace Reporting, IWPR, in 2005. The original IWPR Balkans team was mandated to localise that programme and make it sustainable, in light of changing realities in the region and the maturity of the IWPR intervention. Since then, its work in publishing, media training and public debate activities has become synonymous with quality, reliability and impartiality. A fully-independent and local network, it is now developing as an efficient and self-sustainable regional institution to enhance the capacity for journalism that pushes for public debate on European-oriented political and economic reform.

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