Action for Human Rights (HRA) published the report "Freedom of expression and the right to privacy during the epidemic of the covid-19 virus", which analyzed four cases of deprivation of liberty and prosecution of persons due to the publication of rumors about the coronavirus on social networks, as well as the case of publication of names and the address of over 2000 people in self-isolation due to suspected infection with covid-19, HRA announced.
They add that the analysis was prepared by Jonathan McCully, an independent adviser for freedom of expression from Great Britain, and regular legal adviser of the organization "Digital Freedom Fund", in cooperation with Stefan Šljukić, legal adviser of HRA.
The editor of the report is Tea Gorjanc-Prelević, executive director of HRA.
"Analysis of the prosecution of persons suspected of the criminal offense of "causing panic and disorder" from Article 398 of the Criminal Code of Montenegro due to posts on social networks about the coronavirus, showed that although the authorities sought to achieve justified goals, the protection of public order and health, criminal measures in all four cases violated the freedom of expression because they excessively limited it. The measures were not prescribed by law of the required quality, nor did they fulfill the criteria of "necessity" and "proportionality". Undefined and imprecise terms such as "panic" and "fake news " led to the fact that, in one case, two state prosecutors, based on the same facts, have completely opposite views on whether a criminal offense was committed at all. Unfortunately, as the case of Radovan Rakočević, who is on trial, shows, the position of the prosecutor prevailed, who is against the human right to freedom of speech," the HRA statement said.
The HRA's conclusion is that all criminal proceedings initiated on the basis of Article 398 of the Criminal Code of Montenegro should be suspended immediately, and that this provision should not be applied, but abolished.
"Back in January of this year, the HRA submitted to the Constitutional Court an initiative for the review of the constitutionality of the provision that prescribes the criminal offense of "causing panic and disorder", but as it is known that the Constitutional Court decides on average within two years, we hope that in the meantime the working group of the Ministry of Justice, which is working on changes to the Criminal Code, to propose the deletion of this criminal offense. Constitutional courts in Canada, Zambia, Zimbabwe and South Korea have already found that the unconstitutional provisions of criminal laws on fake news, similar to Article 398 of the CCCG, as in the report states," says HRA.
They add that the report supports the recommendations of the UN rapporteur for freedom of expression and the World Health Organization that instead of punishing states for publishing inaccurate statements in the context of a pandemic, they should adopt an approach of carefully and publicly correcting misinformation.
"We appeal to state prosecutors and courts not to resort to criminal penalties in matters of freedom of expression, and to use deprivation of liberty exceptionally, in cases concerning hate speech or incitement to violence. The report also appeals to bear in mind that persons that publish views or transmit texts on social networks cannot apply the same standard of responsibility as media houses or official channels of communication, especially in light of the limited influence of comments on social networks," the HRA points out.
The second part of the report analyzes the violation of the right to privacy that occurred when the Government's National Coordinating Body for Infectious Diseases (NKT) decided to publish a list of names and addresses of over 2000 people who were placed under self-isolation.
"This measure, although adopted with the justified aim of protecting public health, did not meet the requirements of the principles of legality, necessity and proportionality, so the publication of personal data was against the international standard of the right to privacy. Respect for self-isolation had to be ensured by the use of less restrictive measures," they emphasize. HRA.
The report indicated that the publication of names, addresses and information about people suspected of being infected with the covid-19 virus is a violation of the right to privacy:
"It was explained that names, surnames and addresses of residence in combination with data on health status, i.e. the special risk of infection with covid-19, are classified as health data, which are treated as a highly sensitive category of personal data according to human rights standards. Neither NKT and the Agency for the Protection of Personal Data did not assess the potential impact of the intended data processing on data protection, respect for privacy and protection against discrimination and other risks, nor did they foresee risk mitigation measures in accordance with the standards of the Council of Europe. Anyone could access the published data on the Internet, which enabled the creation of the black corona application, which deepened the violation of rights".
Action for Human Rights announced that by publishing health data on the Internet, the NKT did not improve public health, but achieved the opposite effect.
"It was concluded that by publishing health data on the Internet, the NKT did not improve public health, but undermined it. Such a measure undermines the necessary trust of citizens in the confidentiality of personal data handled by the state, especially with regard to their health status. The report also mentions the still unexplored state "leaking" of the list of names of over three hundred people in self-isolation with their social security numbers and ID card numbers, as well as the publication of the list of those infected with the corona virus," says HRA.
It was recommended to ensure the application of the Council of Europe Convention on the Protection of Persons with regard to Automatic Processing of Personal Data (Convention 108) in relation to the processing of personal data in connection with the pandemic, whether such processing is carried out by public or private entities.
The law on the protection of personal data of Montenegro should be additionally specified according to international standards that protect the right to privacy and data protection, and thus ensure that similar measures are not adopted again.
The goal of the report is to help people whose rights to freedom of speech and privacy have been threatened and violated by state authorities in the fight to protect those rights, providing them with elaborate arguments about international standards. On the other hand, the report, in the general interest, provides a reasoned criticism of the actions of state authorities during the first wave of the coronavirus, with the aim of influencing that the same violations of freedom of speech and privacy are not repeated.
The report was prepared thanks to the support of the British Embassy in Montenegro, as part of the project "Monitoring freedom of expression and the right to privacy during the covid-19 virus infection". As part of that project, two videos were designed in which we tried to succinctly show the protection provided by freedom of expression and the right to privacy in this context.
Bonus video:
