Civil liberties in the European Union during the COVID-19 pandemic

Abstract

Civil liberties are considered to be the assembly of basic freedoms and human rights permitted to the citizens of a country through various legal instruments, assuring, most of the time, immunity from the interference of the government or other entities in one’s activity. Since March 2020, the World Health Organization has considered the novel coronavirus a global threat and declared a pandemic, an action which determined governments around the world to take drastic measures in order to prevent colossal damages. However, without a well-coordinated plan, multiple European states found themselves facing a challenging situation which required their citizens’ civil liberties to be restricted, having an even more challenging perspective, that of establishing a common guide fit for all member states. To what extent did certain governments in the European Union violate some of the most important civil liberties possessed by people, what was the people’s reaction and what could have been done better? Let us analyze the situation below.

What are civil liberties and how were they affected by the pandemic?

Civil liberties are precious assets protected, in the majority of democratic countries, by their constitutions, whereas in authoritarian countries they might seem protected on paper, but ignored and oppressed in practice. There is an important distinction that needs to be made here. Civil liberties are often referred to as “rights” possessed by individuals, but it must be stressed out that thiqs term might not be convenient, as the target and the source of the authority are different. We might find a specific number of rights being considered as both a civil liberty and a civil right, but, while speaking about civil liberties, it must be taken into consideration that they mainly work as a restraint against eventual certain malicious acts of the government towards its citizens. As it is highly known, the European Union has four fundamental freedoms which are considered to be its essence, governing the movement of persons, service, capital and goods. Their one particular characteristic emphasizes that the aforementioned elements can freely move within the EU, without encountering any type of restriction, a situation which is no longer entirely possible with the onset of the crisis situation.

The COVID-19 pandemic presented itself as a global health emergency which forced governments and European institutions to suggest and implement drastic measures in order to ensure safety, although it required the limitation of certain civil liberties. What is rather labelled as common sense here is that people’s perception on the repression of certain civil liberties was, and still is, different and the measures adopted by governments have divided the society.

On one hand, we have those individuals who believed in the measures and the forecasts presented by competent authorities claiming that quick and firm measures would prevent catastrophic consequences and the collapse of the health system which was insufficiently prepared for such an event. On the other hand, we witnessed the presence of individuals who argued that their freedom is being attacked and governments are taking advantage of the situation in order to gain more control. The most controversial civil rights which were brought up to the public’s attention during the pandemic were the freedom of movement, the freedom of speech (expression) and the freedom of assembly.

How did the pandemic affect the freedom of movement?

Firstly, the freedom of movement has been often considered to be one of the most paramount civil right, as well as one of the most contested during the pandemic. It is described as the freedom which grants each individual the permission to travel, without any constriction, within and outside the territory of a state. There are a few, but important exceptions thorugh which the freedom of movement can be restricted, and the most relevant ones for this particular case are those who represent a threat to public health and the rights and freedoms of others. When the World Health Organization declared COVID-19 a pandemic in March 2020, it became more than clear that the disease was now a significant threat to every individual’s health, therefore a consistent number of states chose either to close their borders or even establish a national or partial lockdown.


Source: Wikipedia

There are two vital aspects which need to be taken into consideration when analyzing how the pandemic affected the freedom of movement. One is that this measure infuriated the majority of people who felt like their freedom is being obstructed by being unable to leave their homes or partake in activities requiring traveling. The second implies an even more significant aspect and it refers to those who were not able to exit or enter a specific state, for various reasons. For instance, some experts argued that European states, such as Greece, used the pandemic as an excuse to discriminate migrants, displaced persons or asylum seekers giving the fact that their restrictions were targeting refugees, especially Syrians. Violence against border crossers has increased significantly since the pandemic began and EU member states such as Hungary or Cyprus have limited asylum seekers entry into the country by invoking COVID-19 concerns.

Although the implementation of quarantines and lockdowns has varied greatly, some states have taken overly harsh actions, in the eyes of the population, such as the use of punitive and repressive police forces and aggressive methods to impose stringent laws on curfews and meetings. This is why, lately, a consistent number of protests have been taking place in various locations. Such demonstrations took place even in wealthy European countries like Germany, but developing ones faced similar issues. However, although it is mainly common sense that people, in their nature as social beings, had and are still experiencing troubles adapting to these measures, a recent study conducted by the Imperial College in London demonstrated that if no restrictive measures, such as lockdowns had been introduced, then a number of at least 3 million victims would have fallen ill.

Another study conducted by the Unites States came up with results demonstrating how lockdowns in various EU member states such as in the France or Italy prevented, together, a number of thousands of potential victims. With that being said, facts and multiple scientific analyses exhibited that although travel and movement restrictions might have resulted in a consistent social and economic impact they have also saved, in the end, the lives of numerous individuals.

What were the implications on the freedom of speech?

The freedom of speech, or the freedom of expression as some experts prefer to define it, refers to those abilities which are allowing individuals to express their ideas, beliefs, emotions and etc., without being directly censored by the government. Placed in the context of the COVID-19 pandemic, the freedom of speech, more specifically its adjacent restrictions, might have contributed, in the beginning, to the fast spread of false and harmful information.

Within the borders of the European Union, there were several member states whose situation raised serious concerns regarding the threat to press freedom, for example. The integrity of the presented information was questionable in states such as Hungary or Poland, where governments sought to control the press by criminalizing the spread of specific targeted information, considered to be harmful at the time. A few of the highly contested measures implemented by authorities included substantial fines or even prison penalties for journalists, along with their restricted access in hospitals and their inability to speak to health workers about any topic related to the given situation. As I was stressing above, other EU countries took similar actions, one example coming from Poland, where the government was heavily criticized for promoting state-owned media and restricting the foreign one. The European Union promotes the freedom of expression within its member states, arguing that every individual and each entity has the right to hold an opinion and, on top of this, receive impartial information, untouched by the interference of public authorities.

The challenge regarding the freedom of speech is strongly linked with the issue of  “fake news” and the spreading of misinformation amongst citizens of a state. Experts from the Reuters Institute evaluated a selection of 225 samples of truthful disinformation released between January and March 2020 and the leading topics included in these type of actions are the ones presented in the graphic below:

While arguing about the freedom of speech, Romania’s case is worth displaying. The decree given in March 2020 by president Klaus Iohannis, declaring the state of emergency contained an interesting article which targeted the online environment and permitted the takedown of articles or websites which might have included false information. What is more, it has been previously revealed that the country was temporarily withdrawn from the Convention of the Universal Declaration of Human Rights, but further information and details have not been openly disclosed and this action was accused of lack of transparency.

On top of this, while talking about this particular case, the freedom of expression was considered to be highly oppressed in the online environment by national authorities, taking for instance the example provided by the Ministry of Internal Affairs. Certain posts and comments on social media platforms such as Facebook, that were labeled as being a threat to public health by promoting false or controversial information, were deleted while the National Police encouraged citizens to use the hashtag “#PolitiaRomana” in order to denounce posts whose content was, in their vision, harmful or for denouncing illegal gatherings of people.

As it was stressed above, social media platforms are the main environments through which people tend to spread different types of information at the moment, as they can easily reach a large number of individuals, from different locations, in a short period of time. Both the United Nations and the World Health Organization have called for social media platforms to work together to stop the spreading of fake news and it comes with no surprise that the actions that followed made specific groups claim that their freedom of speech was and still is being abused.

For example, SciDev.net, a small  British publisher in the online environment has made it public that an executive from Twitter wrote them an email which included the following recommendation: “I would recommend following the recommendations to remove COVID-19 and abortion content on the landing pages linked from the bio and promoted tweets”. Basically, what happened here, and this is just one example, is that the publisher was asked to remove its COVID-19 content, even though it did not contain any kind of misleading information and it was a simple research, an action which cost the publisher and many more like him half of its audience, since paid advertising on social media is the main action through which small news outlets can reach their audience. What is more, video oriented platforms such as Youtube have taken drastic measures as well, especially by demonetizing videos in which words such as “coronavirus” are pronounced by independent video creators.

Unfortunately, in some cases, the freedom of speech was not punished by only removing the disturbing content from a social media platform, but also by applying work related punitive measures or even arrests in regards to actions which were defined as being criminal offenses. For instance, in states like Nicaragua and Egypt, a consistent number of health workers have received administrative punishments or were even arrested because they condemned the government’s way of handling the pandemic. In Russia or in the US, people were reportedly fired if they dared complain about the work conditions that they had to face in hospitals. Thus, while measures such as articles being taken down, accounts being suspended and content being closely supervised might actually be helpful in order to fight against the wave of fake news, certain states were severely accused of having used this topic as an excuse and abused their power in order to hide their incompetence and even get rid of certain online activists under the claim of spreading false information.

The freedom of assembly – were citizens deprived of their right to protest?

The freedom of assembly represents the civil liberty possessed by individuals, which grants them the opportunity to gather together, both privately and publicly, in order to pursue a certain type of activity. During the COVID-19 pandemic, the freedom of assembly was considered to be highly affected, since social distancing was and still is labeled as the best solution for humanity to tackle this virus. Therefore, in many states social gatherings were forbidden, fully or partially. What is more, people who did not respect this rule were immediately and promptly sanctioned. In Romania, for example, and in many other European states, people who didn’t respect social distancing were fined or even arrested, depending on the gravity of the situation.

Now, it is important to acknowledge the fact that the freedom of assembly applies to protests as well and it can be observed that lately protests regarding the measures taken by governments have escalated, shortly turning into violent gatherings. Surprisingly, such protests are coming from states with very different systems of governance, both liberal democracies or consolidated autocracies, developed countries or developing ones. The increasingly strained relationship between citizens and governments took many people to the streets, which made several states take severe actions, such as completely banning protests. European countries such as Germany banned weekend protests due to the fact that thousands of people gathered together, without wearing masks and without distancing from one another, in the name of a movement which questions Germany’s democratic status. Many similar protests took place all over the world, without any measures being respected, and multiple experts believe in the existence of specific groups of extremists taking advantage of people’s rage against the government’s measures in order to follow their hidden interests and destabilize the public order.

What were the main challenges for governments and European institutions?

The biggest failure in this particular case, from my perspective, was the lack of coordination when it came to establishing very specific circumstances under which one can be accused of spreading false information regarding the pandemic. In addition, it was the inability to promptly define exactly what can fall under the label of false information and impose sanctions according to how distressing that information was or how it could have affected the general public’s safety.

The measures which limited the freedom of movement were later proved to have helped  tackling the virus, therefore the accusations regarding this aspect can be considered more or less unjustified, as it was a matter of preventing a more outrageous situation and protecting people’s health. What can be questionable here though is the increased usage of technological surveillance such as GPS phone applications or the use of drones for civilian surveillance purposes, which were lacking specific regulations.

Although this situation was indeed a big challenge for the European Union as a whole, there were also a number of significant solutions which helped with overall improvement. For example, what was notable was that all member states reached an agreement regarding the freedom of movement and managed to come up with an inventive solution for their citizens through the launch of the “Re-open EU” website. This kind of tool gave citizens the opportunity to gather essential information about the places they planned on visiting and be up to date with all the restrictions available in that specific area. What is more, member states also agreed on establishing a common criteria when deciding on implementing new restrictions, while highlighting that it is necessary for EU citizens to be provided with accurate and timely information.

Although at the moment things are looking far more better than they did a year ago, it is of high importance to mention the fact that the communication at EU’s level it was not the most favorable in the incipient phase of the pandemic. For instance, many agree with the fact that the European Centre for Disease Control should have been more involved in dealing with the crisis situation, as its purpose is to “ identify, assess and communicate current and emergent threats to human health from communicable diseases”. This type of institution could have been provided with more substantial resources, with a certain amount of legal power and the opportunity to have a more active role within the EU during this difficult period, especially when the lack of coordination between member states was more than obvious.

Now that the intensity of the danger has been reduced, the European Union and its member states are working hard on their Recovery and Resilience plans, trying to alleviate the economical and social damages produced by the pandemic. The “Next Generation EU” is an extraordinary recovery fund designed to get economies back on track, while assuring a smooth transition towards a more green and digital Europe through an astonishing 1.8 trillion euro package (including the Multi Annual EU Budget), the biggest one approved until now.

Are COVID certificates reprimanding civil liberties?

National authorities have started to implement the EU COVID Certificate Regulation in July 2021, intended to make cross-border travel easier by granting its possessor the possibility not to be subject to any type of movement restrictions, unless necessary. Southern European states whose economies are strongly reliant on tourism, such as Greece, have been pushing for the implementation of this type of document as a means through which this industry could turn back to normal.

As the 4th wave of the pandemic slowly but steady started to take over the continent, multiple states appealed, yet again, to various restrictions in order to control the degrading situation. However, certificates holders are exempted from the majority of them, while unvaccinated individuals who cannot present a test or any proof that they actually went through the disease are declined the access in places such as restaurant, cinemas or sports’ stadiums, a context which launched a series of protests against these documents in countries like France, Italy or Cyprus. Citizen are arguing the fact that these documents are reprimanding their civil liberties and human rights, and even encouraging discrimination and violating their personal data, while others are offered preferential treatment.

It is paramount to know that Article 14 of the European Convention on Human Rights ensures the protection against discrimination of all rights and freedoms, even indirect discrimination which might target a specific group put under a rule or policy. However, the Committee on Legal Affairs and Human Rights, under the Council of Europe, states in a draft resolution included in a report of a Parliamentary Assembly that these type of Covid-related measures which might restrict the liberties of certain groups are relevant if they pursue a legitimate and they are proportionate.

The aforementioned proportionality requires an equitable balance between respecting the freedoms and rights of an individual while also taking into consideration the protection of a community’s interests. Therefore, such distinctions and measures are directly correlated to the analysis of the risk of transmission, meaning that a greater risk requires stricter measures, while a lower risk no longer justifies certain limitations. All restrictions and exemptions should be based on strong scientific analyses which are proven to reduce the risk of transmission. The Council has advised each EU member state and even non-state actors, such as private companies, to carefully analyse the usage of the Covid certificate taking into consideration freedoms and human rights, as well as the duration of the exceptions that these documents offer to its holders.

Conclusion

To sum up, the COVID-19 pandemic somehow demonstrated that governments and EU institutions showed hesitation, in the beginning, due to the lack of knowledge in such crisis situations whereas people were reluctant to believe that the measures which are being implemented are the right ones. Therefore, many considered them as an attack to their civil liberties, a form of skepticism which was definitely fueled by the usage of social media, a vast environment in which everyone believed that they could share whatever information they pleased, without any significant consequences. Somewhat overwhelmed by the situation, governments took drastic measures by stating that public health matters the most, therefore having to compromise, a gesture which wasn’t always well received. But, on the other hand, it is necessary to point out the fact that the European Union quickly recovered from the state of uncertainty and begun supporting the most hit economic sectors, along with providing its citizens tools meant to facilitate their movement, while promoting a strong sense of solidarity between member states. With governments now focused on repairing the economic and social damages brought by this pandemic, we will have to be patient in order to see the true and long term effects that they had on civil liberties.

Analysis conducted by Alexandra-Maria Ionescu, a MA student at the National University of Political Studies and Public Administration in Bucharest and coordinator of the SNSPA European Studies Center. Main photo source: European Network of National Human Rights Institutions