David Kaye on Freedom of Expression, Disinformation & COVID-19 - COVID-19 & The Law Series
Clinical Professor of Law David Kaye discusses freedom of expression, disinformation and COVID-19 in this installment of UCI Law’s COVID-19 & the Law lecture series. Introductions by UCI Law Dean L. Song Richardson. Recorded on May 27, 2020 via Zoom virtual presentation.
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David Kaye
Clinical Professor of Law
Expertise: Human Rights and International Humanitarian Law, Public International Law, International Criminal Justice
Featuring:
Podcast Transcript
[Narrator]: Welcome to UCI Law Talks from the University of California, Irvine School of Law. Join us on Twitter @UCILaw.
[Song Richardson]: Good afternoon, everyone. Thank you for joining us. It's my pleasure to welcome you to UCI Law's COVID-19 and the Law series. Today's presentation is titled Freedom of Expression, Disinformation and COVID-19, and we are lucky to be joined today by UCI Law Professor David Kaye and by Dr. Hans Keirstead who will serve as our moderator.
Before I introduce our speakers, I want to recognize the team that made this event possible today. They are Rebekah Bergeron, Jillian Henry, Dennis Slon, and Mary Ann Soden. Thank you so much for all the work you did to bring together these incredible panelists.
So Professor David Kaye is the clinical professor of law and he joined UCI Law's faculty in 2012. His courses include Human Rights in a Digital Age, and he also runs our international justice clinic. And in that clinic, our students work with individuals, NGOs, and scholars to develop and implement strategies for the protection of human rights.
Professor Kaye's most recent book is titled “Speech Police: The Global Struggle to Govern the Internet,” and that book explores the ways in which companies, governments, and individuals struggle to define the rules of online expression. Professor Kaye is also the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. He was appointed by the UN Human Rights Council in June of 2014, and in this role, David monitors issues related to freedom of expression across the globe. In his 2018 report to the UN General Assembly, he evaluated the ways in which artificial intelligence implicate human rights issues, and his most recent report tackled the problem of the global private surveillance industry and its impact on freedom of expression.
Professor Kaye's impressive career includes serving as the principal lawyer on International Humanitarian Law at the U.S. State department and as the deputy legal counselor in the U.S Embassy in the Hague. Professor Kaye is a life member of the Council on Foreign Relations and a former member of the Executive Council of the American Society of International Law. We are so very fortunate to have Professor David Kaye as a member of our remarkable faculty and I can't wait to hear his presentation today.
Dr. Hans Keirstead, who will serve as our moderator, is an internationally known stem cell experts. He's led therapy development for late stage cancers, immune disorders, motor neurone diseases, spinal cord injury, and retinal diseases, and his work and his research are truly remarkable.
In addition to being the chairman and CEO of AIVITA Biomedical, he has founded four successful biotech companies, and he also sits on the board of several other prominent biotech companies. Dr. Keirstead is also one of our own. He was a full professor at UCI, where he founded, directed, and then he erected the building for the UCI Stem Cell Research Center. He's also a founding advisor of the California Stem Cell Initiative that resulted in a three billion dollar stem cell fund. He's also been a longtime advisor to several governments on biomedical policy.
Dr. Keirstead received his Ph.D. in neuroscience from the University of British Columbia, where he received the Cameron Award for the most outstanding Ph.D. thesis in the country. Additionally, Hans received a distinct honor of being elected as a Senate member of the University of Cambridge and as a Fellow of the Governing Body of Downing College and he was the youngest member to have been elected to serve on both of these positions.
Personally, I'm so grateful that Dr. Keirstead has agreed to serve on UCI Law's Board of Visitors. He helped us to launch our very successful CEO Fellowship Program in which our students work closely with CEOs and general counsel and companies throughout Orange County, including AIVITA Biomedical. Some of you may remember Dr. Keirstead if you were fortunate enough to hear his powerful presentation last week on the state of current healthcare innovations to combat COVID-19, and in case you missed it, the recording is available on our website and I highly encourage you to view it.
So thank you so much, Hans, for coming back again to moderate-
[Hans Keirstead]: My pleasure.
[SR]: ... today's program. I really appreciate it.
[HK]: Of course.
[SR]: And Professor David Kaye, I'm looking forward to your presentation today on freedom of expression, disinformation, and COVID-19. So Hans, I will now pass along moderation of today's event over to you.
[HK]: Wonderful. Great to have you, Professor Kaye, and without further ado, please take us through your story.
[David Kaye]: Hello, everybody. It's really great to be here. I want to thank Dean Richardson and Dr. Keirstead for inviting me to join you today, and especially for Song's really wonderful introduction, which was, of course, too much.
So what I want to do today is talk as has been introduced about freedom of expression, disinformation, and COVID-19. As I do so, what I'd like to do is try to put us in a framework that isn't only focused on domestic American law, but is actually looking at these issues from the perspective of international human rights law. And to give you a little bit of background as to the work that I've been doing, the Human Rights Council, which is the central human rights body of the United Nation system, appointed me as its Special Rapporteur, essentially as a global monitor of freedom of expression issues, in 2014. One of the things that we've been really lucky about at UC Irvine School of Law is that we have fully integrated the work of this UN mandate into the work of our international justice clinic. So everything that I talk about today, I've really benefited from, it really couldn't have taken place without the support of the students of UCI Law working in IJC and elsewhere.
I'm going to be drawing from a report that I recently submitted to the Human Rights Council, as I do submit reports to the Human Rights Council and to the UN General Assembly each year. Of course what's on everybody's mind today is the impact of COVID-19 on society, on law, on rights around the world. This is my last report to the Human Rights Council and it focuses on disease pandemics and the freedom of opinion and expression. In doing so, just to highlight what the report looks like, and in a way, this will be in part an introduction to my talk, what it did was focus on the framework for freedom of expression as a matter of human rights law, and then talked about several of the challenges that we're seeing in the context of the pandemic, more generally, in the context of all public health challenges, to be honest, and then goes through each of those areas, how international law relates to those areas and how we can think about advocacy and using the tools of law in order to ensure rights, even at a time of public health crisis.
So over the course of the next, let's say 25 minutes or so, I'll try to do the following: First, I'll talk about the threats, what are the threats, at least what are some of the threats to free speech during the pandemic. Second, I want to talk a little bit about how international human rights law guarantees the right to freedom of expression. Obviously, so much of disinformation is online, and the question is just, does human rights law apply to internet companies, or does it just apply to governments? So I'll try to address question. Third, I want to talk a little bit about the World Health Organization's guidance for what it calls risk communication. And then finally, I'll try to address the question of how we enforce these rights. Of course, when we're talking about international human rights law, it's a very common response for people to say, "Well, it's not effective in domestic courts, it's not effective in the same way that domestic law is," and I want to talk a little bit about how we enforce those.
So that's quite a bit to cover in a short amount of time, so I apologize if I speak quick and go through some things fairly quickly. Of course there'll be time for Q&A, and I'm always happy to talk about these issues separately.
So let's start with the first question. What are some of the threats to free speech during the pandemic? Let me just highlight, and the question is what are some of the threats because there are many more threats than time permits me to identify. So there's of course the overall threat, right? There's the overall threat that at a time of pandemic governments and people are distracted, and this gives authoritarians, autocrats, others, the ability, the space, the room to do things that they've wanted to do in the past, right?
And so to give you one example, in Hungary, where we've seen increasing authoritarianism over the last several years, the government of Viktor Orbán has used the crisis to amplify and strengthen the tools of state media over independent media. We see other governments around the world doing exactly that, taking advantage of the crisis in order to do things that they've wanted to do, but may not have felt that they could do, given the attention of the world.
So I want to focus in on some more specific areas where we see particular issues around freedom of expression at the time of the pandemic. One is what we see on social media in a place like China. So as has become very well-known over the last couple of months, at the very outset of the pandemic, there was a very serious set of limitations imposed on the sharing of information about the coronavirus in China. One of the things that we've seen, and this is from a report of The Citizen Lab, which is a Toronto based organization that does really excellent work on internet freedom around the world, they identified what they called a censored contagion, how basically the Chinese government, which has for many, many years managed content, managed conversation on the internet. They're using keywords and other kinds of filtering in order to limit discussion online about the coronavirus. So that's something that we're seeing in China. We're seeing it in a number of other places.
In Turkey, we saw and continue to see that the government is imposing very serious restrictions on the ability, not only of journalists to report about the coronavirus, but they also put serious pressure on the medical community. And as this slide indicates, there was a situation in March when two doctors in Turkey had reported on basically the spread of COVID-19 across Turkey. They had been talking to their trainees about how to deal with the problem. Their video of that went viral and basically government put them under very significant pressure, including detaining them, and then ordered essentially that they retract their statements and apologize. Again, a form of repression, of freedom of expression tied directly to the coronavirus.
We also see around the world very broad based restrictions on internet access. In many of these places around the world, we've seen internet shutdowns, that is, the government orders telecommunications companies to shut down the internet in a time of public protest, in a time of even school exams, in a time of robust public debate. In Kashmir, India, has, since last August actually, imposed draconian restrictions on internet access. They started to loosen them up earlier this year, but they didn't loosen them up enough and they've cracked down again on internet access in Kashmir.
Now, in general, we could say, of course, cracking down on the internet is a problem in any kind of situation. It's a denial of the public's right to access information. Particularly in the context of the coronavirus, there've been significant stories of the failure of internet access and its implications for medical personnel to get access to information about the nature of the disease and how to treat patients.
Of course in our own country, we've seen issues of disinformation, and this was a treat... a tweet, not a treat, but a tweet from Harvard University's toxicology department, which was essentially put in a position of tweeting out that it's not a good idea to inject bleach or to drink disinfectant. This goes to a broader issue of governments using the tools that they have at their disposal in order to spread disinformation. Now, it's also interesting because it raises issues, not only of government disinformation or misinformation, but also raises questions about what we expect of the roles of the private sector, in particular, of social media to moderate this space.
So in the past, the social media companies, in particular, Twitter and Facebook and YouTube have said that they treat public figures and the statements of public figures as of inherently newsworthy value. And so because of the public's interest in knowing what leaders are saying, even if their statements interfere with or violate their terms of service and their rules, they will generally keep them up. They will allow them to stay because of the public interest and the newsworthiness of the leaders' statements. But the coronavirus has really forced them to change, has caused them to change. We saw earlier this year in March in both Brazil and Venezuela, where the leaders of those governments, President Bolsonaro in Brazil, Present Maduro in Venezuela, essentially tweeting out information, making information public that ran directly counter to the guidance of public health authorities.
So let me move on so that we could talk a little bit about some other issues about the framework for human rights, freedom of expression, and COVID-19. So in talking about these issues, I think it's useful to think about international human rights law as applying to all the different areas that we might think of as relevant in the context of COVID-19. Of course, the International Covenant on Civil and Political Rights, which is really the central treaty in international human rights law, it protects everybody's right to life. There's also the International Covenant on Economic, Social and Cultural Rights to which actually the United States is not a party, but this treaty protects everyone's right to the enjoyment of the highest attainable standard of physical and mental health.
But the issues that are relevant to us in thinking about freedom of expression in the time of COVID-19 are found in Article 19 of the International Covenant on Civil and Political Rights. And so what does that provide? So Article 19 protects everyone's right to hold opinions without interference. It's a right that is not subject to any form of restriction. But for freedom of expression, we see, in paragraph two, that everyone shall have the right to freedom of expression, and that right is defined as including the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers and through any media. This is a robust right. And if you think about it in the context of, for example, the First Amendment, I think one thing that's clear is that this is a right that is focused on the individual's right. So if you think about the First Amendment, which says, "Congress shall make no law," it's focused on the institution. Here it's flipped around and it says people have these kinds of rights and it's robustly written.
Of course, the right also is subject to some restriction, just as the First Amendment rights to freedom of expression are also subject to some restriction. Those restrictions are included in paragraph three of Article 19. And we think of those restrictions as a kind of three-part test, and that is that restrictions must be provided by law, that is, we don't allow for officials simply to decide that they want to restrict opinion because they decide they don't like the opinion or they don't like the expression. That's unavailable to governments. Provided by law also means that when a government wishes to restrict information and expression, that it must also be relying on law that is clear, that does not provide government with excessive discretion.
Secondly, any restriction must be necessary, and we understand that to be necessary and proportionate. From an advocacy perspective, that means that we require governments to demonstrate that any step that they take, even if it's for a legitimate reason, meets a basic standard of necessity. And what are those legitimate areas? Those include the respect to the rights or reputations of others. So you could imagine, for example, even though one would be expressing oneself in talking about somebody's private life, or say private phone number as in doxing, it would be amply restrictable for a government to say you can't post information about somebody's home address because of their right to privacy, as an example. Other legitimate areas include the protection of national security or public order, and then finally of public health or morals.
And so to summarize this, under international human rights law, everyone enjoys the right to freedom of expression, the right to seek, receive, and impart information and ideas of all kinds, and government may restrict it as long as it's provided by law and necessary to protect, in our case here, public health.
Now, you might be thinking in addition to those standards, because those are standards that apply to governments, right? It's governments that agree to treaty law. It's governments that reach those kinds of agreements that they then ratify through their domestic institutions, and they become a party to those treaties. And by becoming a party to those treaties, governments become obligated by their terms. In fact, the United States has ratified the International Covenant on Civil and Political Rights, which includes that Article 19 which I just described.
But what happens to companies? How are companies bound by human rights law, if at all? Well, the truth is, just as the First Amendment does not directly apply to private actors, in fact, it protects the freedom of expression of private actors, including companies, human rights law also applies directly to governments. And so over the last several years, there's been a movement in international human rights law to figure out, given the scope, the scale, the power of private actors, how is it possible to hold them to the same kinds of standards that States are held account to?
So several years ago, the United Nations Human Rights Council endorsed these principles known as the UN Guiding Principles on Business and Human Rights. They recognize on the one hand that States have a primary obligation to protect rights, and at the same time, they say that companies, while they might not have the obligation to protect, they have a responsibility to respect those rights. Remember, if you look back at Article 19, paragraph two, it's focused on the individual's right to secrecy, even in part, information and ideas of all kinds. Well, if that's true, then there may be a situation where companies might stand in the way of individuals having the opportunity, the ability to enjoy that basic right. And so in the context of these guiding principles, the UN has said it's important for companies to do a number of things, to do human rights due diligence, to evaluate their products, to evaluate what they're doing in order to ensure that what they are doing is consistent with the human rights of their users and the human rights of the public.
Okay, so that provides us with a kind of framework of international human rights law. I want to pivot for a moment and talk a little bit about the World Health Organization's guidance on risk communication, because I think it's interesting to look at what the WHO has been saying, particularly in the context of managing epidemics. So in 2018, the WHO issued this guide for how to manage epidemics, how to manage major deadly diseases. And it was in this document that they kind of affirmed the entry into public health vocabulary of the term infodemics. Maybe you've heard about infodemics. It's essentially disinformation around public health. As you think about it, when we think about how does information on social media platforms get amplified, we use the words that come from public health. We talk about the virality of information and particularly the virality of disinformation. Well, the WHO saw the epidemics of rumors as a risk to public health, and they define infodemics as rumors, gossip and unreliable information, and they pay particular attention to the problem of social media.
Now, interestingly, the WHO guidance does not say that it is important for governments to shut down infodemics, instead it talks about the importance of government listening to the fears of the people, listening to gossip, understanding what the unreliable information might be and correcting it. I think we've seen some examples, both on the positive side and on the negative side of how States might take on that guidance. And so, one of the positive examples is German Chancellor Angela Merkel. She has a scientific background. She has really come for some acclaim over the last several months because what she has done and what Germany has done is not shut down disinformation as much as talk about the nature of the threat and talk about the nature of disinformation and correcting it in a very public way. I mean, Chancellor Merkel has essentially talked to the German public as adults with basic critical thinking skills, who can understand the evolution of our knowledge about the disease, about coronavirus, and also can talk about the nature of steps, the measures that we must take in order to deal with the pandemic.
By contrast, to give a kind of contrary example, South Africa, in March, enacted regulations that criminalized disinformation. Essentially, they expanded existing law in order to basically enable the police to detain and to prosecute people who spread disinformation about the coronavirus. They came under quite a bit of criticism for this. One of the reasons is that, and research has found this, when governments criminalize disinformation, what they also do is limit the ability and the willingness of people to share important information that their communities may need because they'll self-censor, they'll think twice about what it is they might be able to share.
Okay. So given that we have threats to freedom of expression during the pandemic, we have a human rights law framework for dealing with and protecting and promoting freedom of expression during the pandemic, and the fact that we have WHO guidance around how to deal with disinformation, there's a question about how to enforce the right to free speech in this current environment. Well, in my report to the Human Rights Council, just last month, I identified a number of areas of real concern. Those include access to information held by public authorities, how does the public, how do journalists get access to information about the nature of the disease, about the numbers of people infected by the disease, the fatality, the mortality rate, and so forth?
Well, a number of governments around the world have been restricting that kind of information. There's a basic fundamental right of access to information, and that's something that needs to be upheld. We've seen, as I discussed, access to the internet as a significant problem. We've seen problems related to the protection and promotion of independent media. We've seen public health disinformation. One issue I'm not covering here, although I'd be happy to talk about it later, is questions of public health surveillance and how that relates to freedom of expression.
So with those in mind, and I'll come to a conclusion here in a moment, how do we as human rights lawyers or as our clinic in the international justice clinic, or as individuals who are simply concerned about the United States and other States maintaining and adhering to the norms of international human rights law, how do we ensure that they do that? Well, one is national and regional courts. One fact that we in the United States cannot avoid is that human rights law, in particular, the International Covenant on Civil and Political Rights is not available as a cause of action for individuals in U.S. courts, whether federal or state courts. There is some emerging advocacy to allow that to happen, but currently they're not available to U.S. litigants.
But around the world, the human rights law framework that I've described has been integrated into national courts around the world, been integrated into regional human rights courts that serve as, in a way, supranational oversight for state behavior. We see that in Europe, in the inter-American system, in the African systems. So there are tools that are available to individuals, particularly in the context of pressure and restriction on journalists, on access to the internet, and in other areas where the pandemic has really raised questions about State commitment to freedom of expression. So one possibility is to bring claims in national or regional courts.
Another possibility is international treaty institutions. So I've talked a little bit about the International Covenant on Civil and Political Rights, the ICCPR. It has a treaty body known as the committee on human rights, Human Rights Committee. The Human Rights Committee is available for people to bring claims to. It's a very lengthy process. I wouldn't say that it is available for kind of quick reaction to repression, but it is available on the normative side for the reaffirmation of basic rules of international human rights law.
There's also international political institutions. I would say, unfortunately, those political institutions, particularly the Security Council, have been largely unavailable to kind of restate the importance of human rights at a time of pandemic. On the other hand, we do see that some institutions of the United Nations, the Human Rights Council, the Office of the High Commissioner for Human Rights. My colleagues who are special rapporteurs and global monitors of other areas of human rights law have been increasingly making statements about the importance of adherence to international human rights standards at the time of the pandemic. One of the things that we do in special procedures as special rapporteurs is we communicate directly with governments and we've raised with governments our concerns, and we've raised those in public ways as well, in order to encourage them to meet their treaty obligations.
And then finally, I think one of the things that's really important for us, certainly as Americans, but around the world, to understand, that the global language of human rights is often the language that people use in order to make claims against international institutions. And though we don't see the language of human rights being used to its maximum effect in the United States, around the world, individuals who have claims about human rights law and about deprivation of rights in the context of the pandemic have been using the language of human rights law in the context of their advocacy in the media, in the context of legislation, in the context of politics. And so even though our going in assumption might be that human rights law isn't available as a tool for advocacy or a tool for even enforcing rights, there are different ways in which we can think about these rights as being available to us, both in kind of the hard law litigation sense, in the soft law political institution sense, and in the sense of using it as a framework to advocate in the context of media and our politics.
[Mary Ann Soden]: I did want to ask you, you had mentioned... You could talk more about public health surveillance and how that has implications in human rights, and I'm interested to learn more about that.
[DK]: Sure. So one of the things that I think we've seen from public health authorities and others is how important it's going to be to have public health surveillance, to have contact tracing, to have testing, and that'll be essential, I think, something we hear from public health authorities around the world, in order to open up our institutions of higher learning, our social institutions, other places where people gather. But I think from the perspective of human rights and the law pertaining to surveillance, we need to be careful and we need to be careful that that kind of surveillance protects some fundamental rights that can actually have an impact on freedom of expression as well.
So for example, we want to be sure that when a State, when a government, decides that they're going to implement a contact tracing, essentially a surveillance mechanism in order to trace the spread of the disease, that that's the only purpose that that contact tracing is used for. Unfortunately, I think there are signals from around the world that some States, by that, I mean internationally States, governments, may use the tools of surveillance for the disease to also track the movements of people, to track, and particularly in places where government has been hoping to track the movements, particularly of dissidents, of journalists, and of others. So there need to be very strict kind of containment of surveillance tools so as not to interfere with those kinds of rights, like the right to privacy.
The other aspect of surveillance that I think many people are looking at and are concerned about, is that surveillance focus on individual movements and not on the content of one's communication. So for example, we've heard a lot about some of the private actors like Apple and Google developing an app. Many of you may have seen that this is becoming available, it's being rolled out quite soon. There's a concern that those kinds of tools, which I think are narrowly drawn, are not used by others in order to also capture the contents of one's communications. I think that is something that we need to watch quite carefully, and it's where you can see an intersection between surveillance and freedom of expression.
[MS]: Thank you. So we have a couple of questions in the live Q&A. One question is, have any of these international human rights laws been used in California State Court via the, I guess, Section 17200's unlawful?
[DK]: It's a really good question. I mean, not to my knowledge. There has been, over the last decade or so, including by people at UCI Law, thinking of professors, Paul Hoffman and Chris Whytock, a lot of thinking about whether human rights standards and human rights law may be available, and it would require some work to make this happen, but may be available to support claims that are State law claims in State courts. And the move to State courts or the potential move to state courts has been, I think, driven in part by restrictions on the use of human rights law standards in federal court. And so there is a lot of interest around the country to move some of those claims into State courts.
The hook that's mentioned in that question I think is very interesting. I mean, I'd like to hear more from whoever is asking the question about how that might be deployed. Right now it's, to my knowledge, not being deployed, at least not in that way.
[MS]: Okay. Thank you. There's a question asking, what are some of the ways for us as individuals to combat the misinformation on social media? It can be really overwhelming at times.
[DK]: Again, that's a really great question. I too feel the sense, and I'm guessing that people on this call feel this to some extent as well. We are overloaded, overwhelmed with information. We have information about the spread of the disease. We have information about airborne versus aerosol versus surface contamination. We have so much information, and so much information that at some level is confusing, is contradictory. That makes disinformation a particularly problematic area because I think one of the things that we see is, well, I would say two things. One is, in an environment where there's so much information and so much uncertainty, disinformation has a kind of a place where it is able to flourish, perhaps, because people are looking for answers. And so bad actors who might share information that is not verified, not verifiable maybe, they have the opportunity, in bad faith, to share that kind of information and get it to spread. So that's one problem. Particularly as we've seen in the United States and elsewhere with the politicization of public health issues, it certainly makes it easier for disinformation to find a foothold.
The other part of it on disinformation is that we of course see that so much of it happens on social media platforms, platforms that have their own rules, right? Their own rules about what is acceptable content. I didn't talk about this enough perhaps in the presentation, but one of the things that we are seeing is that given the uncertainty of information, and given, particularly in the United States, the kind of politicization we've seen around the pandemic, I think one of the things that we're also seeing is the companies showing the extent to which they have such massive power. I'll give you two examples.
One is the example of last month, Facebook was deleting pages of groups, so group pages that were sending out information about anti-lockdown protests, right? And that is protests that were, on their face, going to be violating the public health guidance. So Facebook took those down. Now, we can have a debate about whether that was legitimate or not, but the point is, is that it showed that they were essentially stepping into a kind of governance function, and not just governing the platform, but having this massive impact on public space. I think that's pretty remarkable.
The second area where we see that is just the news from yesterday. Now, this had to do with President Trump's tweets concerning mail and ballots. Many of you may have seen that Twitter has now added a little link at the bottom of those tweets that says you could get the facts here. It's kind of a light fact check. I think what's interesting is, first, that Twitter is doing this. I'm not sure they would have done this in the absence of the kind of changes that we're seeing around the pandemic, but what we do see there is, in a way, it isn't the fact check as much that had the impact. It was the reporting on the fact check and the relationship between Twitter doing this very modest fact check, and the way it was covered, the way it was talked about, the way that very fact went viral, I think is very interesting. It shows the power of these companies.
So all of that leads to suggest that, on the one hand, there are the companies and there are governments and there are bad actors out there who have massive power in the disinformation space. What can you do? I mean, one thing you can do is, on your own, check the information that you're sharing, right? You may read something and wonder, is this legit? Try to check it against public health authorities, public health statements. Be cautious about what you share because we are also part of the mechanism for the sharing of disinformation. And so I think particularly at a moment of public health threat, and this will be true as the elections come up in the United States around disinformation related to voting, we should be very careful about the kind of information we share. That's an unfortunate dynamic because there's going to be information that is not only legitimate, but it might be necessary to share and we're in a position where we have to evaluate that on our own. Unfortunately, I think we're in a place where we all have to be doing that.
[MS]: I so agree. We have a follow-up question about the Twitter comments, and it's, is President Trump's threat to shut down Twitter a dangerous interference in freedom of expression by media's fact-checking?
[DK]: Right. So the story of Twitter's fact-checking of the president didn't just end with the fact check because of course it continued, I think as everybody could have expected, with President Trump tweeting out essentially his anger at that move. I think he's very clearly wrong as a matter of law in terms of this being a violation of his First Amendment right, of his right to freedom of expression. In part that's because of the limited nature of the fact check, but it's also, if we're talking about domestic law, we're talking about a private company that, certainly in the wake of Citizens United, enjoys constitutional protection. It enjoys the protection of the Constitution to essentially brand itself, to adopt the rules that it sees fit. It also enjoys statutory protection, because under Section 230 of the Communications Decency Act, internet companies have the ability, without fear of liability, to make the rules about content on the platforms, to take down content, and also to leave content up with some very relatively narrow exceptions.
So generally speaking, Trump does not have any legal basis for a claim. I think we should all understand it for what it is, which as the question was suggesting, as a tool of intimidation, I think a tool of intimidation against Twitter, basically saying to Twitter, "Don't you dare moderate my content." But the truth is, given the nature of constitutional and statutory law in United States, Twitter has the ability to do that. So to move from law, we might also think about whether Twitter has a responsibility to deal with disinformation, and the question might be, should there be a distinction between disinformation that is promoted by the President of the United States versus the disinformation that is promoted by individuals who are not officials?
Generally speaking, I would say defining disinformation and enforcing rules against disinformation is extremely dangerous. It's extremely dangerous because defining what is disinformation can be very hard. It's certainly hard in the abstract and having general rules around disinformation can be very problematic because as we've seen around the world, many, many authoritarian governments have rules that prohibit, and in fact, criminalized the dissemination of false information, and they use it against government critics and they use those tools against public debate and against journalists.
So the idea that we can have a set of rules in general, dealing with disinformation as a legal matter is very problematic. Now, that doesn't mean that when we're talking about public health or if we're talking about voter suppression that we cannot have rules. Certainly at the platform level that create a set of standards for what is acceptable content, and I would say the more narrowly you define the problem. So if it's a definition of the problem around, for example, telling people where to vote and telling them the wrong place to vote, that's a form of disinformation that the platforms should be on top of, absolutely. Similarly, if it's disinformation about the nature of public health guidance, very specific, easy to check, the companies can take that down. But again, going back to the WHO guidance, criminalizing that is probably going to create more problems and additional harm than correcting it, dealing with it in a kind of open way.
[MS]: Thank you. I have one question from our registration audience I wanted to bring to your attention. It's a question about Global South. How do you see Global South tackling the issue of organized disinformation campaigns and this COVID-19 with most repressive regimes using it to curb freedom of expression and shrinking civic space?
[DK]: Yeah. So I would say that that's a... When we talk about Global South, which some people think of as the developing world, I would say it's not just Global South, it's also even within the heart of Europe, because we've seen in the context of Hungary, in the context of Poland, very serious steps taken against the independent media, and that has an impact on the ability of individuals to share information about public health threats. Particularly when it comes to criticism of the government related to its behavior, its measures that it's taken during the pandemic.
So I think of this really as not a specific South or North or East or West problem, I think we can see examples in all places, and again, not just in authoritarian regimes, because certainly we've seen in democratic spaces a kind of disinformation, a kind of unwillingness also to share fully information about the nature of the threat and the measures that government thinks is important to take in the context of the threat. But I do think that one of the, perhaps, striking features in the Global South in particular is the distance that those places have from places like Menlo Park, San Bruno, and San Francisco, where you have Facebook, YouTube, and Twitter based.
So we've been seeing in the American media, over the last 24 hours, a real kind of robust coverage of Twitter and Trump, but this is just one jurisdiction. Facebook has pretty much 85 percent of its user base outside the United States and they're facing the same kinds of issues, but are they also facing the same kind of public attention and oversight and pressure that you see in the American media? Not always. And people who are further away from the sectors of social media of these companies also have less leverage, less power to influence to even identify to the companies the nature of the threats that they're seeing on the platforms.
So that leads to governments taking some rather extraordinary measures, in some respects, in some places, in some examples, to limit, to filter some of the content, that is to sensor directly by not allowing some of the platforms to be accessible. Separately, we have examples of new law in many countries that aim to apply pressure on the companies. Part of that is because the companies are distant and don't have that same interaction in those political spaces. There's real alienation there from the companies in a way that we're also seeing, but in a different way.
[MS]: Thank you. Thank you for that response. We are tragically at the end of our hour. And so on behalf of Hans Keirstead who unfortunately was not able to return and Dean Richardson, I just want to thank you for your thoughtful commentary and your really interesting insights on disinformation, social media, and COVID-19. Thank you very much Professor Kaye for your time and this information.
[Narrator]: Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.
