*Primary research and drafting by: Michael Wu, J.D. Candidate (Class of 2022), UC Irvine School of Law
I. Introduction
In mid-February 2020, the Director-General of the World Health Organization gave a speech in which he observed that communities around the world were facing not only the spread of COVID-19 but also an “infodemic” caused by “an overabundance of information — some accurate, some not — that makes it challenging to identify trustworthy sources and reliable guidance about COVID-19.”[1] Social media companies are at the epicenter of this infodemic.[2]
The pandemic has created waves of information and misinformation on digital platforms that threaten individual and collective rights to health.[3] Yet the Facebook Oversight Board’s decision confronting COVID-related health misinformation failed to address this crucial right. This omission is consistent with a broader trend of the Board prioritizing the right to freedom of expression at the expense of economic, cultural and social rights — which is inconsistent with authoritative human rights standards.
The instant working paper addresses the Board’s decision in Case 2020-006-FB-FBR (the “French COVID Misinformation Case”). Part II describes the Board’s human rights analysis in this case, which primarily focused on the right to freedom of expression. Part III sets forth the international legal standards establishing company responsibilities to respect the right to health, particularly during a pandemic. Part IV explains how the Board’s inclusion of this right could have informed its case decision. Part V offers concluding thoughts on the Board’s general marginalization of economic, social and cultural rights.
II. The French COVID Misinformation Case Decision
The Board issued its decision for the French COVID Misinformation Case in early 2021. The decision overturned Facebook’s removal of a French user’s post with video and accompanying text in a public Facebook group.[4] The video and accompanying text criticized the Nationale de Sécurité du Médicament, the French regulatory agency responsible for regulating health products, for refusing to authorize hydroxychloroquine and azithromycin for use against COVID-19 and instead authorizing the drug remdesivir.[5] The user criticized the French response to COVID-19 and questioned the reasoning behind preventing doctors from prescribing a “harmless drug” at the onset of COVID-19 symptoms.[6] The post had roughly 50,000 views at the time of removal.[7]
Facebook removed the post for violating its Community Standard on Violence and Incitement,[8] finding that it contributed to the risk of imminent physical harm during a global pandemic.[9] Facebook sought to justify the removal by arguing that the post contained erroneous claims that a cure for COVID-19 exists and that the post could lead members of the public to ignore conventional health guidance or self-medicate.[10]
The Board found that Facebook’s removal did not comport with the human right to freedom of expression, as set forth in Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”). Article 19 provides that expression, such as online content, can only be restricted if a conjunctive three-pronged test is met. This test requires that any restriction must: (1) satisfy the legality prong, ensuring that sufficient notice is given to the public and such notice does not confer excessive discretion; (2) serve a legitimate and enumerated aim, including respect for the rights of others and protection of public health; and (3) be necessary to achieve that aim, meaning that the restriction must be proportionate and the least restrictive option available.[11]
The Board analyzed whether Facebook’s removal of the post met these Article 19 conditions of legality, legitimacy and necessity.[12] The Board found the removal did not meet the legality prong due to excessive vagueness in the relevant Community Standard.[13] The Board further found that the removal failed the necessity prong because Facebook did not use the least restrictive option in moderating the content.[14] The only prong that the Board found to have been satisfied is legitimacy; indeed, the Board found that “Facebook’s purpose of protecting public health during a global pandemic satisfied this test.”[15]
The Board’s decision did not address or reference any human rights other than the right to freedom of expression under Article 19. Notwithstanding its recognition of public health as a legitimate aim of the removal, the decision did not mention the right to health.
III. The (Omitted) Human Right to Health
The right to health is enshrined in the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).[16] This right provides that everyone is entitled to enjoy the highest attainable standard of health.[17] The right explicitly addresses “[t]he prevention, treatment and control of epidemic . . . diseases” and “[t]he creation of conditions which would assure to all medical service and medical attention in the event of sickness.”[18] The UN Committee on Economic, Social and Cultural Rights, which is the body tasked with interpreting and overseeing ICESCR, has stated that the right to health is fundamental and “indispensable for the exercise of other human rights.”[19]
The right to health applies to the French COVID Misinformation Case pursuant to the UN Guiding Principles on Businesses and Human Rights (“UNGPs”). The UNGPs set out authoritative standards to prevent, mitigate and remediate business-related human rights impacts.[20] UNGP 31 lists the criteria for non-judicial grievance mechanisms, such as the Oversight Board, to provide redress for adverse human rights impacts.[21] Grievance mechanisms must be “rights-compatible,” meaning that outcomes and remedies should uphold internationally recognized human rights.[22] UNGP 12 makes clear that these human rights include not only those in ICCPR but also those in ICESCR — such as the right to health.[23] These rights apply with equal force and on equal footing, as established by the 1993 Vienna Declaration and Programme of Action.[24] Facebook, itself, has expressly committed to respect the rights contained in both ICCPR and ICESCR.[25]
Moreover, various sources of international law have underscored the importance of the right to health in the context of pandemics. The UN Special Rapporteur on Freedom of Opinion and Expression has recommended that social media companies conduct ongoing due diligence to determine the impact of their content moderation on the right to health.[26] Also, the Inter-American Commission on Human Rights has stated that businesses should “respect human rights, adopt due diligence processes in the area of human rights, and hold themselves accountable for possible abuses of and negative impacts on human rights, particularly for the effects that pandemic situations and infectious health crises tend to have on the rights of the most vulnerable people and groups.”[27] Indeed, the right to health is critical during a pandemic.
IV. Application of the Right to Health
If the Board had applied the right to health in the French COVID Misinformation Case, its decision would be more reflective of human rights law as a whole, not limited to the right to freedom of expression. This broad application of human rights would be consistent with UNGPs 31 and 12.
In turn, its application might have changed the content of the Board’s decision. The Board might have included recommendations stressing the crucial importance of respecting and moderating health misinformation in accordance with the right to health. The World Health Organization states that the “infodemic” around COVID-19 has contributed to deaths and injuries.[28] In fact, the specific medicine favorably addressed in the content at issue, hydroxychloroquine, has been shown to increase the risk of death in COVID-19 patients.[29] Faiza Patel and Laura Hecht-Felella have argued that full consideration of the health dangers posed by the content may have convinced the Board to decide in favor of removal, stating that “if the board had looked at the broader issue of misinformation around Covid-19, or even around hydroxychloroquine, it could well have reached the opposite conclusion.”[30]
Application of the right to health is supported by the theorized role of social media companies as health fiduciaries during a pandemic. Barrie Sander and Nicholas Tsagourias argue that social media companies serve as intermediary fiduciaries due to the power of their platforms to unilaterally moderate misinformation and disinformation impacting public health.[31] The companies “become intermediary fiduciaries because they interpose themselves between States on the one hand, which are fiduciaries of their own people and the national public good of health and, collectively, fiduciaries of humanity and the international public good of health, and on the other, the global community of peoples.”[32] As stewards of public health, social media companies can cause substantial harms to public health through their content moderation policies and practices.[33]
V. Conclusion
The foregoing demonstrates the significance of the Board’s omission of the right to health in its analysis of the French COVID Misinformation Case. By failing to address this (clearly applicable) right, the Board missed an opportunity to provide recommendations on the need to consider the dangers of COVID misinformation and to factor this standalone, robust right into its content decision. The Board also missed the opportunity to emphasize the critical importance of Facebook as a health fiduciary during the pandemic.
Unfortunately, the Board’s omission of the right to health is illustrative of a broad trend — found throughout its case decisions, to date — of prioritizing civil and political liberties at the expense of economic, cultural and social rights.[34] This prioritization is at odds with key international human rights guidance, including the UNGPs, that urge respect for the full spectrum of human rights.
[1] Barrie Sander & Nicholas Tsagourias, The COVID-19 Infodemic and Online Platforms as Intermediary Fiduciaries under International Law, 11:2 Journal of International Humanitarian Legal Studies 331, 332 (2020), citing World Health Organization, Munich Security Conference (Jan. 15, 2020). See also World Health Organization, Managing Epidemics: Key Facts About Major Deadly Diseases, at 34 (2018) (defining an “infodemic” as “the rapid spread of information of all kinds, including rumours, gossip and unreliable information”).
[2] Sander & Tsagourias, supra note 1, at 332.
[3] See World Health Organization, Managing the COVID-19 infodemic: Promoting healthy behaviours and mitigating the harm from misinformation and disinformation, Joint statement by WHO, UN, UNICEF, UNDP, UNESCO, UNAIDS, ITU, UN Global Pulse, and IFRC (Sept. 23, 2020).
[4] See Oversight Board, Case Decision 2020-006-FB-FBR ¶ 9 (Jan. 28, 2021) [hereinafter “French COVID Misinformation Case”].
[5] Id. ¶ 2.
[6] Id.
[7] Id.
[8] See id. ¶ 4.
[9] See id. ¶ 2.
[10] Id.
[11] International Covenant on Civil and Political Rights, art. 19(3); United Nations Human Rights Committee, General Comment No. 34 ¶¶ 22-36 (Sept. 12, 2011).
[12] See French COVID Misinformation Case ¶ 8.3.
[13] Id.
[14] Id. Note that Facebook typically downranks, rather than removes, misinformation on its platforms. See Research Report by the Mandate of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, with the support of the International Justice Clinic at the University of California, Irvine School of Law: Freedom ¶ 26 (July 2020).
[15] French COVID Misinformation Case ¶ 8.3. Facebook responded by committing to all of the Board’s recommendations with the exception of adopting less restrictive measures in cases where users post information contradicting advice from conventional health authorities. See Facebook Newsroom, Oversight Board Selects Case on Hydroxychloroquine, Azithromycin and COVID-19 – About Facebook (Feb. 25, 2021).
[16] International Covenant on Economic, Social and Cultural Rights, art. 12 [hereinafter “ICESCR”]. References to the right to health can be found in other global human rights instruments, including: the International Convention on the Elimination of All Forms of Racial Discrimination (art. 5(e)(iv)); the Convention on the Elimination of All Forms of Discrimination against Women (arts. 11(1)(f), 12 and 14(2)(b)); and the Convention on the Rights of the Child (art. 24).
[17] ICESCR, art. 12(1).
[18] ICESCR, art. 12(2).
[19] See United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14 ¶ 1 (Aug. 11, 2000). This body explains that the right to health includes the provision of health-related education and the participation of the population in health-related decision-making at the national and community level. Id. ¶ 11.
[20] See United Nations Guiding Principles on Business and Human Rights, A/HRC/17/31 (Mar. 21, 2011) [hereinafter “UNGPs”].
[21] UNGPs, Principle 31.
[22] UNGPs, Principle 31(f). Additionally, UNGP 13 states that businesses should avoid causing or contributing to adverse human rights impacts and address them when they occur. UNGPs, Principle 13(a), Commentary.
[23] See UNGPs, Principle 12, Commentary.
[24] Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna ¶ 5 (June 25, 1993) (“The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”).
[25] Facebook, Facebook Corporate Human Rights Policy (Mar. 2021) (committing to respect the same rights as set forth in UNGP 12).
[26] Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on Disease Pandemics, A/HRC/44/49 ¶ 53 (Apr. 23, 2020).This Special Rapporteur and regional experts have jointly emphasized that human health depends on “access to accurate information about the nature of the threats and the means to protect oneself, one’s family, and one’s community.” United Nations Human Rights Office of the High Commissioner, COVID-19: Governments must promote and protect access to and free flow of information during pandemic (March 19, 2020).
[27] Inter-American Commission on Human Rights, Pandemic and Human Rights in the Americas, Resolution No. 1/2020, at 5 (Apr. 10, 2020).
[28] See World Health Organization, supra note 3.
[29] See Chloroquine and hydroxychloroquine increase risk of death in COVID-19, Reactions Weekly (May 2020); Dave Fornell (ed.), FDA Reports of Deaths and Injuries From Use of Antimalarial hydroxychloroquine in COVID-19 Patients, Diagnostic and Interventional Cardiology (April 23, 2020);Candace Hoffman, Covid-19: VA Study Points to Increased Mortality with Hydroxychloroquine, Physician’s Weekly (April 23, 2020).
[30] Faiza Patel & Laura Hecht-Felella, Oversight Board’s First Rulings Show Facebook’s Rules Are a Mess, Just Security (Feb. 19, 2021). This argument raises the interesting question of whether the right to health must be applied as part of the ICCPR Article 19(3) analysis, which identifies the “rights of others” as a legitimate aim for restricting expression, or whether it may be applied directly, thereby circumventing the legality and necessity requirements. See ICCPR, art. 19(3)(a).
[31]See Sander & Tsagourias, supra note 1, at 345-46.
[32] Id., at 343.
[33] Id., at 333-39.
[34] A related economic, social and cultural right that the Board might also have applied in this case is the right to enjoy the benefits of scientific progress and its applications, set forth in ICESCR Article 15. ICESCR, art. 15(b). The UN Committee on Economic, Social and Cultural Rights has explained that “scientific progress creates medical applications that prevent diseases, such as vaccinations, or that enable them to be more effectively treated” and “[t]he right to participate in and to enjoy the benefits of scientific progress and its applications is therefore instrumental in realizing the right to health.” United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 25 ¶ 67 (April 30, 2020).