8. Freedom of expression and the right to be informed

In writing this series on the right to be informed, we have been hyper aware of a potential criticism: that it can be used to stifle freedom of expression.

Despite being one of the oldest recognised and most treasured of rights, the limits of freedom of expression are always controversial. Moreover it is a right frequently violated. Consider merely a few incidents in democratic countries from the past decade or so: the Charlie Hebdo massacre, the systematic destruction of universities and killing of academics in Gaza as well as the crackdown on dissent in the West Bank, the cancel culture wars in North America and Europe, and the knife attack on Salman Rushdie.

Societal change and improvement is usually harder if expression is suppressed. As journalists, we are acutely aware of how vital this right is; we cannot do our work properly without it, from exposing corruption and mismanagement by powerful people to facilitating vigorous debate about complex or controversial topics. In recent years, progressive movements have sometimes ignored the importance of freedom of expression. But they do so at their peril.

As we write this, the US is holding an outspoken activist for Palestinian rights, Mahmoud Khalil, in a Louisiana detention centre, and threatening to deport him even though he is a permanent resident of the US. Momodou Taal's visa was revoked because of his involvement in campaigns for Palestinian rights. PhD student Rumeysa Ozturk was arrested, probably for writing an article in support of Palestinians.

In France, an investigation was launched into former Charlie Hebdo journalist Zineb El Rhazoui, an outspoken critic of Islamic fundamentalism, because she described Hamas as a “resistance movement” and compared Israel to a “terrorist state” and a “successful Daesh”.

Germany's repression of people who speak out against Israel is acute, with numerous instances. Hanno Hauenstein writes: "In nearly all of these cases, accusations of antisemitism loom large – even though Jews are often among those being targeted. More often than not, it is liberals driving or tacitly accepting these cancellations, while conservatives and the far right lean back and cheer them on."

In 2019 the Financial Times exposed how Rwanda, a country in which freedom of expression is suppressed, may have been overstating progress towards poverty alleviation. According to the newspaper’s analysis of “survey data collected by the National Institute of Statistics of Rwanda, rising prices for rural Rwandan families meant poverty levels almost certainly increased between 2011 and 2014. The National Institute of Statistics of Rwanda claimed poverty fell by 6.9 percentage points during the period.” The Rwandan president Paul Kagame dismissed the report as western propaganda. Yet it’s a salient example of how suppression of freedom undermines the search for truth and potentially hurts the worst off in society.

Nobel prize winning economist Amartya Sen in his book Development as Freedom presented empirical evidence of how freedom benefits development: He wrote: “Freedoms are not only the primary ends of development, they are also among its principal means. … we … have to understand the remarkable empirical connection that links freedoms of different kinds with one another. Political freedoms (in the form of free speech and elections) help to promote economic security.” (pp. 10-11)

Earlier in this series we wrote that John Milton’s seminal 17th century pamphlet argued that allowing multiple views to be expressed allowed truth to win against falsehood. This may be an overly-optimistic view. John Stuart Mill in his 1859 essay On Liberty gave a different justification for freedom of expression: protection against society’s tyranny, or the tyranny of the majority:

“Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.”

Societies that allow a multitude of views to be freely expressed are more able to protect themselves against a widely held “collective opinion” that is wrong and yet penetrates “deeply into the details of life” and enslaves “the soul itself”.

We must be cautious when campaigning for or litigating against companies, even the big tech ones responsible for platforms like TikTok, X, Instagram and Facebook. But we believe that properly used, a right to be informed can complement the right to freedom of expression, not be in conflict with it.

First, in implementing a right to be informed, we can reduce the risk of people being caught in echo chambers in which the same false or misleading information is circulated and reinforced, giving “protection against the tyranny of the prevailing opinion and feeling”.

Second, by compelling platforms to change their news feed algorithms, are we infringing their freedom of expression? We argue no. This is because the platforms have legally been given a privileged position in the United States, which has practically permeated across the world.

As previously explained, Section 230 of the Communications Decency Act, for the most part, exempts the digital platforms from being sued for the content that users post on them. This puts them in a privileged position; user content is the substance of these platforms. Publications do not have this privilege (user content in the form of comments is at most a minor part of what they provide). To maintain this privilege we have argued the platforms must be transparent about their algorithms that select what users see, and be compelled to use algorithms that do not systematically misinform people. This is not in any sensible way a restriction on free expression.