Various governments around the world have chosen to stifle freedom of speech and expression, especially that of health workers, in an attempt to tackle the COVID-19 pandemic. The tragic fate of Li Wenliang, the Chinese doctor who was compelled to retract his statements about the spread of the virus, did not set alarm bells ringing. Then entrenched democracies such as the United Kingdom, the United States, and India have followed China’s lead in undermining free and open debate.
In the Indian state of West Bengal, a First Information Report (FIR) was registered against a doctor who spoke out about the lack of protective equipment for COVID-19 front line health workers. Fortunately, the Calcutta High Court ruled that he could not be arrested, but with a restrictive precondition devised by the Court that he could not post anything on the topic on Facebook. The Indian Supreme Court has gone one step further by directing media to publish official versions of events in order to curb what the Court called “fake news”.
These restrictions have not been confined to a single country. Media reports have shown how doctors and nurses working for the National Health Service in the UK have been asked to remain silent about their working conditions. Hospitals and clinics in the United States have allegedly threatened health workers with dismissal if they make any public grievances on the lack of protective gear. Such curtailment of free speech appears to fall below the legal requirements of proportionality and are, in effect, a violation of human rights.
According to well established legal norms, restrictions on human rights have to be rationally linked to the legitimate aim that the state seeks to pursue. Further, the measures must be necessary, be the least restrictive means to achieve that aim, and be proportionate. During emergency situations, states can justify restrictions on the grounds of maintaining public health and public order (Article 19(3) of the ICCPR) and preventing panic and chaos. Even if that argument is accepted, one can dispute the necessity and proportionality of such restrictions.
An alternative approach to addressing the concerns and rights of health workers would be to establish a process through which authorities could learn about the realities and practical experiences of health workers. But in the absence of such reconciliatory measures, authorities have responded by simply putting a ban on their right to speak, and without providing adequate equipment, and without advising the public about the health-endangering realities within some health facilities. Therefore, in order to maintain public order, these authorities have restricted the right to free speech, jeopardised the right to health of health workers, and restricted the public’s right to credible information. Such an immense cost cannot be proportionate to the aim of maintaining law and order.
There is an inherent fallacy in the argument that censorship helps maintain public order. Taken further, this logic would suggest that reports of corruption, scandals, and mass violations of human rights should also not be reported by the media, because they too could lead to distrust in state authority and cause public disorder and unrest. The media would come under pressure to publish only material classified as “official”. As a result, whether in India, the UK or United States, the anecdotes about insufficient and inappropriate personal protective equipment would never reach the public. Coupled with the gross violations of rights that such measures entail, the authorities would not be placed under public scrutiny and there would be no pressure on them to address the failings. This of course would lead to further problems as far as tackling the pandemic is concerned. In effect, any reports slightly deviating from the “official” stance, even if they are true, may be labelled as “fake news”, with serious legal and health consequences. All such tactics lead to a frightening “chilling effect” and impede the flow of news and information at a time when they are needed the most.
In the midst of a pandemic, the overzealous war on “fake news” that silences discordant voices within the health workforce, will do more harm than good. The best way to tackle COVID-19 is to let the truth come out, irrespective of whether or not it is convenient.
Nirmalya Chaudhuri is studying law at the West Bengal National University of Juridical Sciences, India.