Public officials and misinformation
This week we present a new test that we developed with the Regional Office for South America of the Inter-American Institute of Human Rights all with AlSur on disinformation and the responsibility of public officials. Unlike other contributions, which aim to analyze information flows on the Internet or the responsibilities of intermediaries, this essay focuses on the responsibility of sources, particularly public officials. A recent Oxford study University and the Reuters' Institute show that public persons, including influencers, celebrities, and public officials (!) generate less than 25% of the disinformation but are responsible for about 70% of the engagement (interaction?) That exists with disinformation. .
The role of public officials in spreading disinformation is well known by now. Consider the examples of Donald Trump, Jair Bolsonaro, or Maduro regarding the pandemic, its transmission, care measures, effective medications, etc. and there are plenty of examples. The responses that these types of speech have generated, especially from Internet companies in their recently accepted role as disinformation moderators was the subject of heated debate. This essay, however, proposes to approach the problem of disinformation not from the responsibility of the intermediaries or the measures they have taken (for better and for worse), but from the sources. What responsibility do public officials have for their speech? What are the standards and criteria that govern the action of public officials in their statements and expressions on matters of public interest?
The questions that we bring forward today are not new. In 2012 the Colombian Constitutional Court ruled in favor of a group of women led by the Center for Reproductive Rights in a case brought against the Attorney General of Colombia and his two deputy attorneys. The reason? The petitioners alleged that from 2009 onwards the Attorney General and his deputy attorneys had issued circulars, appeared on radio and television programs, and made public statements aimed at misinformation.
As back as 2012 the Colombian Constitutional Court spoke of disinformation promoted by the government and condemned it. It even cites its own judgments from 2004 in this regard. And it talks about disinformation in health matters, the risks that such disinformation entails, the harm, severe and major, real and concrete, for the sexual and reproductive health of women. The ruling is particularly relevant today, that interest in the issue of disinformation seems to have no limits, neither in words, nor in written form, nor in resources, nor in the attention of civil society, scholars, states, and companies. The Colombian Constitutional Court held that:
[T]he declarations of senior public officials - at the national, local or departmental level - on matters of general interest do not fall within the scope of their right to freedom of expression or opinion, but rather constitute a way of exercising their functions through communication with citizens. (Cons. 13)
In summary, according to constitutional jurisprudence, the limits of the power-duty of communication of high public officials with the public are (i) veracity and impartiality when transmitting information, (ii) minimum factual justification and the reasonableness of their opinions and, in any case, (iii) respect for fundamental rights, in particular those subject to special constitutional protection. In addition, the judgment of liability for exceeding these limits is in itself strict due to their pre-eminent condition in front of the population, but even more so when employing mass media. (cons 13)
Cons 16. “The Chamber considers that the summarized precedents apply to the Attorney General of the Nation and his Delegates who are defendants in the present process. Although none of them is part of the Executive Branch of the Government and, in that sense, their power and duty of communication with the citizenry does not have the political meaning that was involved in the sentences outlined, the truth is that as officials of an important control body they have the power and obligation to, for example, (i) provide information on their management and on matters of general interest related to their constitutional and legal functions, (ii) establish the official position of the entity vis-à-vis matters within their competence and (iii) defend its management against criticism."
The study that we present today follows this line of investigation to see what are the regional obligations of public officials regarding their speeches or expressions, where they are rooted, what values are used, and how they are expressed, especially in two specific matters: electoral frameworks and health.
Taxonomy of falsehoods:
The first section of the essay aims to assess in which contexts falsehood merits reproach and why. To do this, we used the system provided by Professor Sunstein in Liars (2021), where the author proposes 4 criteria to analyze: the intention of whoever lies; the magnitude of the harm; the probability of harm; and its imminence. To these four criteria we believe that a fifth should be added: the obligations of the source concerning their speech. In assessing reprehensibility for misinformation and falsehoods, should a distinction be made regarding the source and the obligations it has due to their profession, role or social function, etc.? We think so. And this is confirmed by the Inter-American Court, among others, in Rios and others vs. Venezuela.
How are the obligations of officials regarding their speech consigned in national legislation?:
The different legislations of the continent show some degree of consensus on the matter of criminal sanctions regarding the falsification of public documents, aggravated when the falsification is committed by a public official. Legal norms vary from country to country in terms of the extent of the reproach to other types of documents and instances, but they allow verifying that there are certain obligations that functionaries have due to the social function they perform in society.
In addition to criminal sanctions, there are administrative regulations throughout the region that oblige certain public officials not to lie or at least to make efforts to verify the information they disseminate. These obligations are in turn related to the requirements for candidates to these positions because of the trust that their work deserves. Virtually all administrative regimes in the region include obligations of truthfulness, good faith, and suitability, which result in the obligation not to lie. Finally, the study shows that both expressions in electoral matters and expressions in health matters have additional restrictions compared to other types of expressions due to the potential damage that misinformation or lack of information could generate in these particular areas. In the first case, there are rules on dirty campaigns, for example, that impose specific obligations on both public officials and candidates for public office. And in the second, there is a regulation of commercial discourses, essential to inform consumers and users about the properties of drugs that justify different standards from other disciplines due to the potential harm.
We conclude with a comment and a warning. The analysis that we publish today does not assess the compatibility of the cited norms with the American Convention or with the standards of the Inter-American System. In all cases, restrictions on freedom of expression must comply with the three-part test of the Inter-American System, supported by comparative regional jurisprudence, and their legality, necessity, and proportionality must be verified. In the execution of these norms, on the other hand, special attention must be paid to the full validity of the doctrine of actual malice, which means that only those who knowingly or manifestly negligently express themselves falsely will be held liable.
Obviously, the issue of the sources of misinformation and the liability that each sector is responsible for can be approached from different angles and disciplines. Today we propose to resume the study of the obligations of public officials in the framework of the discussion on disinformation, an issue in which we believe that research and the search for solutions are excessively focused on dissemination mechanisms (i.e. Internet intermediaries). What we tried was to map out how falsehoods are evaluated in the different legal and ethical regimes that govern the civil service, in an effort to complement existing research.
