Misuse of WhatsApp Threatens Fundamental Rights in the Face of COVID-19 Fake News

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As the struggle to flatten the curve of COVID-19 continues, the ever-growing challenge of preventing false and misleading rumours online has hit a new peak. Throughout the pandemic, WhatsApp in particular has amplified concerns surrounding the veracity of information on digital platforms. Through its ability to rapidly circulate unverified rumours, WhatsApp has been instrumental in exacerbating public confusion throughout the prolonged response to the virus. This is not the first time the app has been put under the spotlight. During the 2018 Presidential elections in Brazil, a deluge of factually debunked news stories flooded the app. The app has 120 million users in Brazil, and the majority of false claims were skewed to favour eventual winner and current President Jair Bolsonaro. This highlighted the reality that WhatsApp is not merely a private messaging forum, but a powerful chain that can be weaponised to spread misinformation and influence electoral outcomes. As COVID-19 highlights, this also affects public health.

While WhatsApp is not unique in perpetuating this spread, the platform is technologically distinctive, as it employs end-to-end encryption and does not have an accessible application programming interface (API) that researchers can use to effectively identify important trends in how false information diffuses through online social networks. The platform has actively taken steps to reduce the flow of bogus news. It has created a “coronavirus information hub”, in order to provide guides for users to “choose reliable sources of information” while following pandemic updates. WhatsApp has also put limitations on the app’s forwarding function, with these restrictions aimed at curbing the speed and efficiency of false stories to spread. However, these restrictions have not stopped the spread of false coronavirus rumours on the platform.

Commentators generally view the “fake news” problem as a threat to democracy, and as a reflection of how technology fuels a modern “post truth” era. However, as the possibility of more robust regulation becomes more plausible, law makers must view this problem in the context of relevant human rights considerations. At its core, the intentional spread of false information on platforms like WhatsApp represents a form of interference. Under Article 10 of the European Convention of Human Rights(ECHR), the right to free expression includes the right to “receive and impart information and ideas without interference.” Under Article 3 of Protocol 1 of the ECHR, the right to free elections is guaranteed. This right can be compromised if false information is targeted at vulnerable voters who then exercise electoral rights on the basis of false and misleading rumours. More recently, the COVID-19 “infodemic” has underscored the threat that false information can pose to health. Throughout instruments such as the ECHR, the paramount importance of protecting public health is routinely referenced. As recent developments in Hungary demonstrate, rushed legislation in response to “false and distorted” information can also bring threats to fundamental rights like freedom of expression.

In looking to the future, it is highly likely that the current system of self-regulation will be critically reassessed. When it comes to the European Union’s legal responses to false and misleading information online, digital platforms are issued helpful guidelines under the European Commission’s Codes of Practice on Disinformation. While these codes are an important step in the right direction, they are non-binding, and they are reliant on voluntary commitment by “signatories” such as Twitter and Google. The codes are specifically directed towards preventing information that “may cause public harm.” As COVID-19 demonstrates, this type of false information has a particular place to thrive in the wake of a global pandemic. In this way, it is questionable whether voluntary “soft-law” codes provide sufficient insulation against this growing threat. While there is a high likelihood of legal intervention to curtail this problem once the pandemic eventually subsides, an increasingly prescient question is whether law makers will advance solutions that can understand this growing problem not just as an affront to truth, but as a threat to these fundamental rights. Going forward, rights-based policy making must be furnished with a concrete and nuanced understanding of the delicate balancing that must take place when mediating these interrelated, and at times conflicting considerations.

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