Bodhisattwa Majumder & Atisha Sisodiya
The outbreak of COVID has put profound philosophical questions to a test, a test between individual interest and the common good, a test between freedom of expression and control of the digital space and a test between individual privacy and digital security. This article presents a theoretical critique of restrictive/regulatory/prohibitory measures by a state during a pandemic, with arguments stemming from the Utilitarian and Libertarian school of thought. It strives to explore whether they can achieve a perfect balance, as all things should be?
The COVID-19 pandemic gives rise to questions of ethics and philosophy, as much as medicine and economics. In the weeks after the initial outbreak, the government implemented various drastic measures and policies to address the increasingly complex challenges posed by the virus. This included monitoring and regulating movements and interactions of millions through smartphones based programs and increased surveillance, restrictions on free expression and information, and placing limits on public participation. This has raised questions, firstly, whether the government has authority to deploy apps and other technological tools to track personal movement in the name of public health and secondly, whether the government is well within its powers to monitor and regulate information in cyberspace. This has put profound philosophical questions to a test, a test between individual interest and the common good, a test between freedom of expression and control of the network and a test between individual privacy and digital security.
Fake News and Covid-19
The pandemic has led to the implementation of a plethora of legislations in global and domestic platform restricting sharing of fake information related to the pandemic across the social media handles. Various Indian states also passed orders where WhatsApp group admins could be held criminally liable for spreading fake news and misinformation. This was the aftermath of mass forwarding of unverified messages and social media posts related to homemade cures for coronavirus, rumours related to the outbreak and lockdown, accusations of the specific community for spreading the virus et al which created significant confusion in the minds of people. By these executive orders, every private chat across individuals, merit for a governmental enquiry and possible investigation which raises the question on the ability of the state to restrict cyberspace according to the standards set by the state under the garb of benefit to the people.
This has renewed a long-running debate between the two schools of thought, ‘libertarian’ and the ‘utilitarian’, and has given fresh urgency to moral and political philosophers’ struggle with the conflict between individual choice and the common good. The key differences between the two approaches become even more evident in the times of crisis.
Cyberspace and Freedom of Expression
According to Public International Law, freedom of expression and information which is available to every person also extends to cyberspace which includes the freedom to receive and communicate information, ideas and opinions through the internet. These rights exist to ensure that any person using the internet has the right to express his opinion on the internet freely without any interference or censorship. However, this freedom of expression is not absolute and unrestricted, hence can be restricted for a legitimate objective for economic, health, moral and national security reasons. It is agreed universally that the cyberspace can be a hub of spreading of misinformation and hatred, given the convenience and exponential forwarding ability of the instant messaging applications. If unrestricted, it can cause mass violence resulting in mob lynching, riots, strikes due to unverified and false information. This was evident in the recent incident of Tablighi Jamat where a gathering of Muslim missionaries was blamed for the entire spread of coronavirus across the nation. This can be one of the many incidents, where the facts and magnitude of an incident are meddled beyond imagination and presented according to a convenient perspective. What followed is communal hatred and prejudice against the victims of such mass information spread. Such circumstances raise the question of what lies ahead of the curve – the ‘freedom of an individual’ or the ‘greater good of the society’. A large number of countries including Germany, Malaysia, France, Russia and Singapore have enacted laws to restrict spreading of false information which has been heavily criticised by the various rights groups. The countries have imposed heavy fines as high as millions and years of imprisonment in case of an act of spreading false information. This calls for a theoretical introspection between the policy making of a state during desperate times such as a pandemic.
Intersection and distinction between Libertarianism and Utilitarianism
Desperate times often ask for desperate measures, and it can be considered legitimate and benevolent of the government to take such measures during the time of a pandemic. But care should be taken that there is no scope for mala fide actions to convert this scenario as a window to place draconian laws whose effect creates ripples even after the crisis is over. Several states have restricted digital freedom of expression by surveillance and criminal consequences under the garb of public order and health to suppress dissent, which needs to be kept a check on. COVID-19 also brought along a cohort of false information, misquoting, and overstating of facts by the means of instant messaging apps due to absence of any regulation. This in turn prevented authentic sources such as WHO and other Centres for restriction of the diseases reach the audience as their inboxes were already flooded with rumours and false information. There was also an instance of sharing a false call recording related to extension of lockdown till 15th June, (suggested by WHO) which led to people panicking and making their arrangements for the same. Many governments responded with a heavy hand to such misinformation, by charging those supposedly spreading fake news related to COVID-19. According to the liberal school of thought, this amounts to an overreach by government and it threatens the freedom of free speech.
Under libertarian philosophy, individual freedom and autonomy are the predominant societal values, and government’s role is to protect individual rights. Amid the many varieties of libertarian movements or actions, one that aligns closely is the freedom of expression in cyberspace – the importance of individuals to have the ability to reveal about themselves to the world. In their perspective, cyberspace is a distinct new space and it cannot be regulated by the state and governments have no mandate for interference with such a sphere. With significant monitoring of content on social media and government using a surveillance system to auto transcribe the calls and store the data, questions of personal and individual privacy arise. Libertarians consider the powers exercised as too broad-based and invasive of individual rights. According to them, any regulation by the state seem problematic and regulation by any apolitical technology presents a better alternative.
Conversely, utilitarianism accounts for aggregate welfare without taking note of the distributional concerns over benefits and burdens in society. Utilitarian oriented arguments justify the use of government regulative powers to prevent harm, maximize utility, and produce benefits for the good of the health of the population. According to Utilitarian philosophy, the decisions of the government should be judged on their impact on the aggregate’s wellbeing rather than the means to achieve it. The policies even though are irregular and immoral per se, should be with the objective to “greatest happiness of the greatest number”.
Effectively balancing the utility and liberty – the way ahead
The coming weeks of the pandemic would be a difficult time as there would be imminent questions on the government to restrict the pandemic as soon as possible. With the passing of each phase the burden on the government is increasing and along with, the blames of inaction and inefficiency. In these times, the significance of rights related to freedom of free speech and expression often go unnoticed. In these times, the balance between individual interests and societal interests must be taken care of efficiently. Thus, it is important to regulate and evaluate content in a complex and evolving information environment. This is not only about the decisions which we take for these desperate times, but they will have a rippling effect to prospective future. Several ‘desperate measures’ won’t be limited to desperate times and would have huge impact on the policy making in all sectors of life. It must not be forgotten that core values of rights of the citizens cannot be forgotten even during war. The pillars of democracy stands on the foundation of rights, duties and liabilities of both the state and the citizen. It is indeed pertinent to tackle this pandemic and ensure that public health is not compromised, for which legitimate steps to curb the rights must not be withheld. Every action should be within the four corners of legality, legitimacy, necessity and proportionality set by the law of the land, regardless of any economic, political or social interests. The balance between the good of the individual and the society is what we should strive for.
Bodhisattwa Majumder is a penultimate year student at Maharashtra Law University Mumbai & Atisha Sisodiya is an Assistant Manager in the Legal-Regulatory Department at Bombay Stock Exchange.