Have you encountered any fake news regarding human rights?

Honestly speaking, I haven’t heard much because our work does not focus on the mode and release of fake news. More often, we hear news from our families and the elderly, like masks are expensive, the government is corrupt, panic buying toilet rolls to use as masks, or that the epidemic is well contained because we all have antibodies already.

Can you tell us about the relationship between fake news and freedom of expression?

Fake news has been a topic of heated discussion in Taiwan for more than two years. To the question of whether disinformation comes under the protection of freedom of speech or not, our answer would be, yes it does in principle. But it is not a clear-cut answer. According to the Executive Yuan’s policy, malicious disinformation that causes harm is not protected under freedom of speech. Other disinformation, however, would still be within freedom of expression. That is to say, even the government does not completely exclude all disinformation from the protection of freedom of speech. As For the Taiwan Association for Human Rights, currently we do not have a specific stand on what sort of disinformation falls within or without freedom of speech, like what the Executive Yuan does. We do not believe in the classic theory of market of speech, either. This theory assumes that truth can rule out misinformation if their channels of speech are balanced and if there isn’t much difference in information reception. But the development of the Internet has altered the progress of discourse to a certain degree. Therefore, we will not adopt such a theory. How the theory of freedom of speech should be amended needs further discussion. Specifically, we need to at least consider factors like how disinformation is disseminated, how people search for news, and how social media regulate the circulation of information. For example, if government authorities consider certain information as fake news, they will administer relevant penalties. But regarding the criticism of the policy, even if the content of the news is not entirely correct, we have yet to define the boundaries of whether or not it should be tolerated and the extent of the people’s duty to verify the facts.

What laws does the government draw from in controlling misinformation? What are your comments on these laws?

Currently, there are no regulatory revisions. The Social Order Maintenance Act has always served as the source of relevant laws and regulations. Cases under this act are often established without going through a prosecutor; the police decide themselves whether to make it a case or not. To Taiwan Association for Human Rights, this shows that the police department can be easily used by the government as it doesn’t have any reasonable point of command. Reporting and transferring disinformation-related cases is mostly executed in accordance with § 63 I (5) Spreading of Rumors in the Social Order Maintenance Act. However, the Taiwan courts have ruled all related cases during the epidemic as exempt from penalty, showing that Taiwan’s courts actually do not agree with the decisions of the prosecutors, police, and investigators. Such results show us that either the law was not designed properly, or that the prosecutors, police, and investigators had abused their authority during the investigations. In response to the epidemic, the government amended the Disaster Prevention and Rescue Act, as well as the Infectious Disease Control Act, aggravating the penalties for causing harm to others. It is difficult to handle such cases, because there are no relevant rulings from the courts since the amendments were made. The amendments made to the Infectious Disease Control Act were generally related to people's livelihoods, which seemed acceptable. But we do not know if there will be other laws or regulations amended to include false information in the future. These may suppress many criticisms about government policies. It needs to be considered if there will be a chilling effect.

According to your observations, were there any major human rights issues during the epidemic in Taiwan?

Personal freedom, and data privacy and security are the observational focuses of the Taiwan Association for Human Rights.

In terms of electronic surveillance, such as the use of a person’s telecommunication information to control their movements during home quarantine or isolation, there are two aspects this may become a concern. One, will this electronic surveillance measure continue when the home quarantine or isolation ends? It shouldn’t, but it’s hard to confirm. Two, this electronic surveillance measure typically uses telecommunication information to monitor the person, applying the Communications Security and Supervision Act and the Mental Health Law to request cooperation from the telecom companies. However, electronic surveillance during this epidemic applies the Special Regulations on Prevention and Relief of Severe Special Infectious Pneumonia and the Infectious Disease Control Act. The requirements are rather vague and there aren’t any clear requests to the telecom companies.

There is an m-police system in the National Police Agency, MOI which links the information of the people currently under home quarantine and allows the police to check on them. These measures are published on the website, but there should be room for discussion on these measures. After all, if the police are able to inspect high-risk events now, they can also use this information to check the identities of everyone present at rallies and parades after the epidemic is over. This is already happening in the US. I do not think that it is appropriate for the police to manage and link the information.

As for data privacy and security, there are two concerns regarding the policy of using our National Health Insurance (NHI) cards to purchase masks. First, it is unclear on what the legal basis NHI cards are approved as a method of identification. We often ask for legal basis, because there must be a legal basis for administrative measures that infringe on the people's rights. Second, do distributors like convenience stores retain data from NHI cards? In addition, how the data will be used in future and whether there are good storage and information security measures should be regulated through law. These issues were not properly addressed by the command center.

Another case is the Diamond Princess. The large-scale extraction of telecommunication, health insurance, and financial consumption information from various databases also did not have a clear legal basis. Were there any actual benefits to retrieving the information of so many people (over 600,000)? Was the epidemic brought under control or did they find any patients in their incubation period? Also, it has not been explained clearly where the retrieved information is kept, what it is used for, how long it will be kept for, and whether there will be another similar large-scale extraction of the records of people’s whereabouts or behavior.

Do you have other suggestions for the government’s response to the epidemic?

The government acted inconsistently during this period. For example, sometimes it says travel is allowed, but at other times it says it is not encouraged. Also, there have been unclear and inconsistent policies regarding mask wearing and mass testing. The problem of real or fake news occurs easily when there are inconsistencies.

Besides that, the government has had many discussions regarding disinformation during this time. However, it has avoided talking about personal information issues rising out from disinformation.

Personal information here refers to personal information given to various platforms. For example, for the social media platform Facebook, our government has not spoken much about how personal data is handled and kept. What the government has focused more on is demanding that platforms control or self-regulate content. It does not require platforms to reveal their self-regulation standards, content control, or results to the public. My understanding is that the government only wants to make fake news disappear through control mechanisms.

Some say that human rights are not that important during an epidemic. What steps will you take to raise the visibility of the issue of human rights among the public?

Commentaries, press conferences, and media interviews. We were contacted by some people under home quarantine or isolation who were unhappy with the surveillance measures. We did consider advocating for the right to implement Personal Information Protection Act, encouraging the public to find out what information the command center is holding and who it has shared the information with, by resorting to the Act and submitting applications themselves. This way, we can raise the visibility of human rights issues. We have also requested for government information disclosure and at the beginning of April, questioned the relevant legal basis for measures like the surveillance and extraction of information, and the use of NHI cards, as well as the kind and amount of information that was extracted. We think that information is the people’s weapon. When we proposed that epidemic response measures were infringing on the people’s privacy, our Director expressed that we have to emphasize the right to health as well, or otherwise the world would think that we are detached from reality. The Taiwan government is transparent in its governance, allowing some parts of the public to support various prevention measures using new technologies. But they are not transparent in monitoring, only in administrative procedures or in the surveillance and quarantine steps. The government’s transparency is to reduce difficulties in governance, so that their response to the epidemic can take effect in a shorter time. However, the measures that are harmful to society in the long run have yet to be properly dealt with or explained. If the epidemic is not well-contained, monitoring efforts will appear ineffective, leaving behind only damage instead.

What is your advocacy strategy during the epidemic?

Finding out the measures and their details from the command center and the various ministries every day, then voicing our opinions on these measures. The Taiwan Association for Human Rights prefers speaking candidly when there’s a problem. We might be scolded after speaking out the first time, but the issue would eventually be taken seriously after we have been scolded a few times. During the first two or three months of the epidemic, surveillance was carried out more tightly and strictly, hence seriously violating human rights. We wrote four or five articles on how the surveillance was a human rights violation. Later we also worked with legislators, reminding them that surveillance is a special measure adopted for a special time. It is important to know when it should be stopped.

During the advocacy process, did you work with other civil organizations?

Not too much. During the epidemic, we worked with Open Culture Foundation (OCF) and Open Knowledge Foundation by having discussions and sharing information with them or promoting each other’s events. But we did not collaborate on the issues.

Are there any schemes or strategies by international partners that Taiwan can adopt?

On the issue of disinformation, in these past six months, I have been guiding Article 19 to consider the responsibility of Internet intermediaries. Specifically, the responsibilities of content verification and content provision should be separated. Platforms provide content, but the truth of the content should not be verified by the platform’s own employees. It should be executed by a third party.

In your opinion, how can the Taiwanese public increase their awareness of human rights?

I think that the society at large must remain alert to the government’s actions. We talked about a lot of surveillance measures just now, so the people can ask about the legal basis for them. When faced with the government’s interference with people's rights, the basic idea is to not believe unconditionally that the government will always act out of good intentions. We hope that the general public will keep a lookout to see if the government is acting according to the law, and if the laws themselves are clear.

Which area is most in need of strengthening: the government’s awareness of human rights, increasing the public’s understanding of human rights, or citizens joining the conversation?

Setting COVID-19 aside, I feel that these three aspects are interlinked; it is hard to say which one needs reinforcing most. To me, Taiwan has never performed well in all these aspects, but if you want to specify which is the cause and which is the effect, I used to think that the government had a greater responsibility. Does the government lack human rights awareness? Not necessarily, but does it have to show explicitly? The Taiwan Association for Human Rights has handled cases regarding the health insurance database before. For more than 20 years, the government has used the database for purposes other than its original function. Now the case has reached constitutional interpretation, but the public does not know much about it or may even be totally unaware – because the government has deliberately avoided bringing up this issue. The government knew right from the start that this had to do with the right to privacy, yet it willfully went ahead to use the database for added value, in turn affecting the people’s level of awareness of human rights and whether they should take an active role in it or not. If they do not know the human rights environment they are in, they wouldn’t have a basic understanding of it and so wouldn’t know what rights to fight for.

Communications surveillance is another example. The Ministry of Justice absolutely knows that these measures are an infringement on privacy, but it deliberately avoided talking about the dangers of communications surveillance or played them down. Their drastic action to access communication records so as to get a hold of a person’s life definitely constitutes a serious violation of privacy. Even though the Ministry of Justice is aware of human rights and knows about the concerns of the people, it doesn’t consider them priorities but deliberately phrases statements favorable to its position. This will in turn affect civil society’s power and timing in conversation.