Let's lose our freedom of speech

Fundamental rights and freedom in times of the coronavirus

The coronavirus SARS-CoV-2 is pushing us to our limits. It poses a significant threat to our public health and is now a part of our everyday lives. Public life no longer takes place. Private life is drastically regulated. Schools, daycare centers, universities, churches, shops, restaurants, bars, clubs, concert halls and theaters are closed. A general block of contacts prohibits gatherings of more than two people if they do not live together in the same household. Individual federal states have issued exit restrictions. All of this seems justified in order to avoid a humanitarian crisis as it is already looming in northern Italy: The number of infections must be kept small so that everyone needs medical care, can receive it in sufficient quantities over the next few weeks and months, and ours Health system does not collapse. Because every life counts the same.

Massive restrictions on rights and freedoms

But with all understanding of the necessary measures, we should not completely lose sight of the fact that at the moment human rights are being violated around the world as a reaction to the corona crisis, our freedoms and scope for action are massively restricted: With curfews and exit restrictions, fundamental rights and above all freedom of movement are reduced highly limited. The right of assembly is practically abolished. Individual monitoring is being massively expanded in many countries. Of course, governments must protect the population from health threats such as the coronavirus and its consequences and take appropriate protective measures. At the same time, however, governments are also obliged to comply with the constitution, laws and international law, even if it is an emergency or disaster.

State of emergency and disaster

On January 30, 2020, the World Health Organization declared the coronavirus outbreak a "public health emergency of international concern". In recent weeks, more and more countries such as South Korea, Italy and Iceland followed, in which they declared a state of emergency or a disaster. The state of emergency or disaster usually releases enormous powers for the executive. In many countries this means that the parliamentary and judicial control of the government is severely limited or even completely overridden: It often means that a democratic head of government also has unlimited, quasi-dictatorial powers. This gives the government the opportunity to act quickly and flexibly in the event of a disaster.

Measures must be legal, legitimate, necessary, proportionate

But it is also implicitly assumed that the executive exercises self-restraint and uses its emergency powers fairly, sensibly and to a limited extent. Fionnuala Ní Aoláin, UN special rapporteur for the promotion and protection of human rights and fundamental freedoms in the fight against terrorism, reminds in a report to the UN Human Rights Council from 2018 of the important legal principle that states and decision-makers must also examine every measure in an emergency whether it is legal, legitimate, necessary and proportionate. The Special Rapporteur fears that many states and security authorities generally welcome emergency powers because they make it possible to act quickly. There is therefore a risk that the powers or at least parts of them will continue to exist after the state of emergency. This is one of the reasons why proportionality always includes a time limit.


Restrictions on human rights and freedoms

With the many restrictions on fundamental rights, such as curfews, it seems difficult to assess whether they are necessary and proportionate in view of the extent and drama of the crisis, due to the increasing number of infections and deaths, but also the uncertainty about the actual effect of curfews. In other circumstances, it is easier to assess what is justified and effective: At the beginning of the crisis, the Chinese government initially focused on suppressing information about the coronavirus and its symptoms and preventing its spread. Iranian authorities have similarly censored journalistic reports and arrested people accused of spreading rumors about the spread of the virus. These measures not only contributed to worsening health, but also grossly violated freedom of expression and the right to information.

In some countries the state of emergency is being instrumentalized: expansion of surveillance and violence

It is also reported from some countries that governments are probably also using the crisis as a pretext to restrict human rights: After the outbreak of the coronavirus, China required citizens to install software on their smartphones that provides information about their state of health, tracks their whereabouts and determines whether they can enter a public place. The software shares this information with the police, creating a template for new forms of control that could last long after the epidemic has subsided. In Iraq, the government has faced widespread protests over corruption, unemployment and inefficient public services. The government responded with violence, killing an estimated 600 protesters in early March. On February 26, citing the coronavirus, all gatherings in public places were banned, although there was only one confirmed infection at the time.


Serious violations of data protection also in democracies

Even democratic states like Taiwan rely on the use of state-of-the-art surveillance technology to fight the virus and massively restrict data protection and personal rights: immigration authorities and the state health insurance company work together. When the health insurance card is scanned, hospitals and even pharmacies have access to their travel activities over the last two weeks in order to identify high-risk patients. Quarantined residents are checked via their mobile phones to see whether they have secretly left their homes and rule breakers are punished with heavy fines.
Radical transparency applies in South Korea: government briefings are posted online twice a day and the movements of infected people are published. Anyone who lives near many infected people is proactively contacted by the government via SMS. It was also known from Israel that people infected due to the corona crisis are being tracked via their cell phones. In Austria, the mobile operator A1 makes the movement data of all Austrian citizens available to the government.

Look to Germany

In addition to worrying about their own health and that of family members, friends, colleagues, and neighbors, people in Germany are concerned with the question of whether and how fundamental freedoms such as the right to free development of the personality (Art. 2 Basic Law) , freedom of assembly (Article 8 of the Basic Law), which restricts postal and telecommunications secrecy (Article 10 of the Basic Law), freedom of movement throughout Germany (Article 11 of the Basic Law), the right of asylum (Article 16a, Paragraph 1 of the Basic Law) and other civil liberties become.
Deutsche Telekom cell phone data is used by the Robert Koch Institute in Germany to draw conclusions about the spread of the coronavirus. The aim is to map the movements of people in Germany - broken down nationwide, at the level of the federal states and down to the municipalities. The digital observation of individual citizens or infected people, as is currently being done in Asian countries and also in Israel, should not be possible with the data. Therefore, in the opinion of data protection officers, the transfer of data is seen as proportionate. Critical experts from the Chaos Computer Club are skeptical, however. They demand that the measures are limited in time and that what data is supplied and how it is anonymized is dealt with in an open and transparent manner.

The greatest encroachments on civil liberties since World War II

The more difficult question is whether a general curfew is constitutional or legally compliant. Also because it is controversial whether there is a legal basis for curfews, federal states such as Bavaria, Saarland and Saxony are deliberately issuing exit restrictions. A ban on contact and / or a ban on gatherings in public places of more than two people is now being implemented nationwide - unless they are members of the common household. These exit and contact restrictions are the most massive encroachments on civil liberties since the Second World War. Even the heavily controversial security laws of the RAF era and the security packages against Islamist terrorism were not as fundamental as the administrative decrees that now encroach on fundamental rights.

Pay attention to the consequences for those in particular need of protection when making decisions

Above all, when deciding on measures, we must not lose sight of the consequences for those in particular need of protection: What does the curfew mean for children at risk if mentally ill and violent parents are their only caregivers for weeks? What does it mean for the sick refugee children at the borders of Europe and in the Greek refugee camps when the member states of the EU virtually override the asylum law? These and many other questions must be taken into account when making decisions in order to avoid harm to those in particular need of protection.

Even need knows the commandment

It is problematic when it is uncertain, as it is at the moment, how long the restrictions on freedoms and the disaster will last. It is particularly important that post-crisis emergency laws and measures are not incorporated into general law. Unfortunately, it is usually part of the crisis that someone is seen as a strong authority and leader who makes decisive decisions and cares little about legality and proportionality. But mere determination cannot and must not replace important legal principles. An emergency or disaster seems to justify renouncing human rights protection and democratic norms. But it is not true that need has no command. The degree of means must be determined by law and proportionality. In the corona crisis, not only people who are suspected of being infected should be tested. All considerations on restrictions on human rights in a state of emergency must be checked beforehand for their legality, legitimacy, necessity and proportionality and limited in time. In addition, the reasons and results of considerations that lead to restrictions on fundamental and human rights should be explained transparently and comprehensively to the population.