Freedom of Expression
2020
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND
ELECTIONS IN THE DIGITAL AGE
The United
Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the
Organization for Security and Co-operation in Europe (OSCE) Representative on
Freedom of the Media, and the Organization of American States (OAS) Special
Rapporteur on Freedom of Expression,
Having discussed
these issues together with the assistance of ARTICLE 19, Global Campaign for Free Expression, and the Centre for Law and Democracy (CLD);
Recalling and
reaffirming our Joint Declarations of 26 November 1999, 30 November 2000, 20
November 2001, 10 December 2002, 18 December 2003, 6 December 2004, 21 December
2005, 19 December 2006, 12 December 2007, 10 December 2008, 15 May 2009, 3 February
2010, 1 June 2011, 25 June 2012, 4 May 2013, 6 May 2014, 4 May 2015, 4 May
2016, 3 March 2017, 2 May 2018 and 10 July 2019;
Highlighting the essential role that freedom of expression and
information, free, independent and diverse media and a free and accessible
Internet play in ensuring free and fair elections, including referenda, in
particular by informing
the public about parties and candidates and their platforms;
Noting, in particular, the role of public
service media, where they exist, during elections including by providing
candidates and parties with equitable access to the public, a platform for
political debates, and impartial and accurate information on election related
issues;
Recognising the importance to democracy of a vibrant media landscape,
of robust public debate about matters of public interest, and of the public
having access to a diverse range of information and ideas;
Aware of contemporary challenges to freedom of expression
and freedom of the media, brought about in part by a significant evolution of
the means of communication, the convergence of legacy and digital media,
and the increasingly central role played by social media and digital
technologies, as well as the need for the normative framework governing freedom
of expression to reflect these changes and to promote transparent and
accountable oversight of online content moderation;
Cognisant of the positive potential of digital technologies
during elections, including to give voters access to information and to empower
them to express their opinions and interact directly with candidates, and to
give candidates and parties, including those with limited resources, the
ability to disseminate their messages and mobilise support;
Expressing grave concern about the threats and violent
attacks that journalists may face during elections and the fact that targeted
smear campaigns against journalists, and especially female journalists,
undermine their work and public trust and confidence in journalism;
Calling on governments to refrain from abusing their
positions to bias media coverage, whether on the part of publicly-owned or
private media, or to disseminate propaganda that may
influence election outcomes;
Denouncing dis-, mis-
and mal-information and "hate speech", which can exacerbate and even generate
election related tensions, calling on parties and candidates to avoid
intentionally using these types of statements to enhance their electoral
prospects and recognising the important role played by independent election
regulators in addressing these forms of speech and promoting access to
information;
Alarmed about the misuse of social media by both
state and private actors to subvert election processes, including through
various forms of inauthentic behaviour and the use of "computational
propaganda" (employing automated tools to influence behaviour);
Concerned that
many States are passing laws which, while formally justified by reference to
the problems noted above, unduly limit freedom of expression, expand State
control over the media, restrict Internet freedom and/or further the ability of
various actors to collect personal data;
Deploring restrictions
on the ability of the public to access the Internet, including complete or
partial shutdowns, which seriously limit the ability of media, parties,
candidates and others to communicate with the public, as well as the ability of
members of the public to access information;
Stressing the need for
robust rules and systems requiring transparency of parties and candidates in
relation to media spending on elections;
Mindful
that elections around the world are scheduled to take place in the
midst of the COVID-19 pandemic, creating new barriers for reporting, sometimes
imposed unjustifiably by State actors, at a moment when voters have an
overriding need to access a range of information and ideas to make informed
electoral decisions;
Adopt, on 30 April 2020, as part of the
celebrations of World Press Freedom Day, the following Joint Declaration on
Freedom of Expression and Elections in the Digital Age:
- Recommendations
to States
a. General Principles
i. States should put in place a regulatory and institutional framework
that promotes a free, independent and diverse media, in both the legacy
and digital media sectors, which is able to provide voters with access to
comprehensive, accurate and reliable information about parties, candidates and
the wider electoral process.
ii. States should promote effective access to the Internet and other
digital technologies for all parts of population, including by closing digital gaps based on gender, race,
ethnicity, disability, socio-economic status and other bases, and putting in
place clear requirements and policies to ensure respect
for the principle of net neutrality.
iii. States should ensure that any restrictions on freedom of expression
that apply during election periods comply with the international law three-part
test requirements of legality, legitimacy of aim and necessity, which implies
the following:
1) There should be no prior censorship of the media, including through
means such as the administrative blocking of media websites or Internet
shutdowns.
2) Any limits on the right to disseminate electoral statements should
conform to international standards, including that public figures should be
required to tolerate a higher degree of criticism and scrutiny than ordinary
citizens.
3) There should be no general or ambiguous laws on disinformation, such
as prohibitions on spreading "falsehoods" or "non-objective information".
4) Any limits imposed on media reporting on public opinion polls during
elections should also be in strict conformity with the three-part test.
iv. State actors should never use their positions or power to undertake
measures with a view to unduly influencing media reporting, including on
elections, whether direct measures, such as through licensing of the media or
exercising control over public media or media regulators, or indirect measures,
such as by limiting access to newsprint, radio frequencies or the ability of
media outlets to distribute their products freely throughout the country.
v. State actors should ensure that the media enjoys robust access to
sources of official information and to candidates for public office, and does
not face undue barriers to their ability to disseminate such information and
ideas, including during the public health pandemic of COVID-19, and including
by implementing the principles of this Joint Declaration.
b. Election Coverage by the Media
i. The media, both legacy and digital, should be exempted from liability
during election periods for disseminating statements made directly by parties
or candidates unless the statements have specifically been held to be unlawful
by an independent and impartial court or regulatory body, or the statements
constitute incitement to violence and the media outlet had a genuine
opportunity to prevent their dissemination.
ii. Any administrative body which has the power to oversee rules relating
to the media during election periods should be independent of the government
and its decisions should be subject to timely judicial review.
iii. All publicly-owned media should, during election periods, ensure that the public is
informed about election matters, respect strict rules of fairness, impartiality
and balance, and grant all parties and candidates equitable opportunities to
communicate directly with the public, either for free or at subsidised rates.
iv. Any rules on election spending which are designed to create a level
electoral playing field should be applicable to legacy and digital media,
taking into account their differences, including rules about transparency of
political advertising.
v. States should make a concerted effort to promote digital
media and information literacy, including in relation to elections.
vi. Directing targeted political advertising, based on personal data, at
individuals through the media should not be allowed, especially during election
periods, unless those individuals have consented to the use of their personal
data for this purpose.
c. Restrictions on Freedom of Expression/Media
Freedom During Elections
i. States should consider supporting positive measures to address online
disinformation, such as the promotion of independent fact-checking mechanisms
and public education campaigns, while avoiding adopting rules criminalising
disinformation.
ii. States should adopt appropriately clear and proportionate laws that
prohibit the dissemination of statements which are specifically designed to
obstruct individuals’ right to vote, such as by intentionally spreading
incorrect information about where or when to vote.
iii. States have a special obligation to take rapid and effective measures
to prevent, protect, investigate, prosecute and punish attacks, threats,
intimidation and harassment, offline and online, against journalists and other
media workers, including against their property and families, during election
periods, particularly where State actors are or may be involved. This
obligation is especially pronounced in relation to female journalists and
individuals belonging to marginalised groups.
iv. Online intermediaries should not be held liable for dis-, mis- or
mal-information that has been disseminated over their platforms unless they
specifically intervene in that content or fail to implement a legally binding
order to remove that content.
d. Access to Information Relating to Elections
i. States should require media outlets, both legacy and digital, to make
public information about their ownership, in accordance with principle of
non-discrimination.
ii. Parties and candidates should be required to be transparent in a timely
fashion, including to the media, regarding their spending on elections and, in
particular, spending on legacy and digital media, and other digital
communications efforts.
iii. State actors, including those responsible for regulating elections,
should be fully transparent regarding any agreements or partnerships, whether
formal or informal, they have regarding elections with online intermediaries
and, in particular, digital and social media companies.
- Recommendations
for Non-State Actors
a. Digital Actors
i. Online intermediaries and digital media should implement the UN Guiding Principles on Business
and Human Rights and conduct due diligence to ensure that their products,
policies and practices, including in the areas of collection of private data
and micro-targeting of messages, do not interfere with human rights.
ii. Digital media and platforms should make a
reasonable effort to adopt measures that make it possible for users to access a diversity
of political views and perspectives. In particular, they should make sure that
automated tools, such as algorithmic ranking, do not, whether intentionally or
unintentionally, unduly hinder access to election related content and the
availability of a diversity of viewpoints to users.
iii. Dominant online intermediaries should consider, as
part of their due diligence, undertaking an assessment of whether their
products, policies or practices regarding political advertising arbitrarily
limit the ability of candidates or parties to disseminate their messages.
iv. Digital media and online intermediaries should make
a reasonable effort to address dis-, mis- and mal-information and election
related spam, including through independent fact-checking and other measures,
such as advertisement archives, appropriate content moderation and public
alerts.
v. Digital actors should, as relevant, be transparent about the use and
any practical impact of any automated tools they use, albeit not necessarily
the specific coding by which those tools operate, including inasmuch as those
tools affect data harvesting, targeted advertising, and the sharing, ranking and/or removal of content, especially
election-related content.
b. Other stakeholders
i. Broadcast media should not interfere with the
broadcast of third party election content unless they have been ordered to do
so by a court or an independent and impartial regulatory body (including of an
administrative nature), or are nearly certain that this is necessary to prevent
substantial harm to a legitimate interest, such as through an act of violence.
ii. Parties, politicians and candidates should refrain
from limiting the ability of media and journalists to access any public
communications they make related to elections.
iii. Media outlets, both
legacy and digital, should be
transparent about the methodologies used in any public opinion polls they
conduct or report on.