Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 08/08/2021 Aceptado el 25/09/2021
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
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cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 70 (2021), 426-445
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
The restrictions of the freedom of
information during the Covid-19 pandemic
DOI: https://doi.org/10.46398/cuestpol.3970.26
Oksana Kalitenko *
Galyna Anikina **
Ekaterina Spasova ***
Oleksandra Shahaka ****
Abstract
The article is devoted to the study of the issues of restrictions
on the freedom of information that has arisen under the impact
of the novel coronavirus outbreak. Another goal of the paper
is identifying ways to protect such rights or to indicate which
amendments to the law might be of use. The research methodology
is based on general and special scientic methods, in particular:
analytical, comparative-legal, systemic, and structural. The
structure of the work includes: the review of international and
Ukrainian legislation related to the freedom of information; the possibilities
of its restriction; possible ways to enabling safe and secure management
of the freedom of information during the coronacrisis. An analysis of
international experience was carried out, as well as aspects of the protection
of civil liberties such as freedom of speech, the right of peaceful assembly,
etc. Several problematic issues were identied. Although, the general
results of the study can be interpreted as alarming trends in the eld of
human rights and civil liberties. Particularly, it is multiple violations of the
freedom of information all around the world under quarantine restrictions.
Keywords: freedom of Information; freedom of Speech; Covid-19;
Restrictions; Human Rights.
* Ph. D., Associate Professor of Civil law Department of National University “Odesa Law Academy”, Odesa,
Ukraine, ORCID ID: https://orcid.org/0000-0003-1001-3561. Email: kalitoks@gmail.com
** Ph.D., Associate Professor of department of civillaw and process Leonid Yuzkov Khmelnytskyi University of
Management and Law, Khmelnytskyi, Ukraine, ORCID ID: https://orcid.org/0000-0001-7482-019X. Email:
galinanikina07@gmail.com
*** Ph.D. candidate, Assistant of Civil law Department of National University “Odesa Law Academy”, Odesa,
Ukraine, ORCID ID: https://orcid.org/0000-0002-8126-2306. Email: katerina84842@gmail.com
**** Ph.D. candidate, Civil Law Department of National University “Odesa Law Academy”, Odesa, Ukraine, ORCID
ID: https://orcid.org/0000-0001-9522-4100. Email: alekseeva_foka@gmail.com
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Vol. 39 Nº 70 (2021): 426-445
Restricciones a la libertad de información durante la
pandemia COVID-19
Resumen
El artículo está dedicado al estudio de los problemas de las restricciones
a la libertad de información que han surgido bajo el impacto del brote del
nuevo coronavirus. Otro objetivo del documento es identicar formas de
proteger tales derechos o indicar qué enmiendas a la ley podrían ser útiles.
La metodología de investigación se basa en métodos cientícos generales
y especiales, en particular: analítico, comparativo-legal, sistémico y
estructural. La estructura del trabajo incluye: la revisión de la legislación
internacional y ucraniana relacionada con la libertad de información; las
posibilidades de su restricción; posibles formas de permitir una gestión
segura de la libertad de información durante la coronacrisis. Se realizó un
análisis de la experiencia internacional, así como aspectos de la protección
de las libertades civiles como la libertad de expresión, el derecho de
reunión pacíca, etc. Se identicaron varios temas problemáticos. Todo
permite concluir que, sin embargo, los resultados generales del estudio
pueden interpretarse como tendencias alarmantes en el campo de los
derechos humanos y las libertades civiles. En particular, se trata de
múltiples violaciones de la libertad de información en todo el mundo bajo
restricciones de cuarentena.
Palabras clave: libertad de información; libertad de expresión;
COVID-19; Restricciones; Derechos Humanos.
Introduction
The year 2020 has become a kind of litmus test for many humanistic
concepts that have long been part of the national legislation of developed
countries. One of them is the concept of human rights, which is rightly
recognized as fundamental and the starting point for the formation of the
legal order at both national and international levels.
Thus, during the pandemic in many areas of social life, there is a
departure from the principle of inviolability of human rights. In some cases,
such a deviation is dictated by the public interest, and in others, the public
interest is only a cover for numerous violations. As an example, there are
indicators according to which states with recent experience of authoritarian
regime reign or which were moving towards the suppression of civil and
human rights at the beginning of the pandemic have only intensied those
trends of suppression under the inuence of quarantine (Trein, 2020).
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Oksana Kalitenko, Galyna Anikina, Ekaterina Spasova y Oleksandra Shahaka
The restrictions of the freedom of information during the Covid-19 pandemic
There is another side of a problem which occupies the cyberspace, the
internet, and information/digital technologies. The studies completed by
several scholars (Flaxman et al., 2020), show that temporal restrictions
may be of use to hold the spread of the virus, but it forces us to question
oneself: how to balance human rights and the public demand for safety and
health in such a situation? In this context, one particular study (Degeling et
al., 2020) shows that individuals begin to tend to neglect some of their own
rights and civil liberties for the benet of the public good, which manifests
itself in the protection of public health. At the same time, with such a
donation in the form of the fulllment of a civil duty, albeit an indirectly
benecial one, the demand for strengthening the protection of personal
data is increasing. However, the results of the study show that such an
interpretation of the ndings is relevant only in extreme situations such
as the Covid-19 pandemic. In turn, it raises a question of condentiality,
privacy, and the right to secure personal data which are all human rights
and civil liberties.
Additionally, there is a problem of the use of personal data during
a pandemic (Ting et al., 2020). Specically, it is related to the ethical
dimension of this issue (Taddeo, 2020). After all, it is about the balance
of interests: how much of our personal freedoms are we willing to sacrice
in the name of protecting public health? Thus, studies show that under the
inuence of the coronavirus pandemics, trends in tracking and surveillance
have only intensied and become even more sophisticated (Taddeo, 2020;
Woodhams, 2021). In this regard, it is necessary to note four key aspects in
the direction of which the situation is developing and which in one way or
another pose a threat to the freedom of information, namely:
1. applications for Covid-19 Digital Health Certicates, 82% of which,
as follows from the report (Woodhams, 2021), are services with an
undeveloped privacy policy, and 41% of which can track the exact
location of the user.
2. contact tracing apps, 19% of which have no privacy policy at all.
3. digital tracking measures.
4. physical (optical) tracking initiatives: 22 countries have used drones
for that purpose, and Europe has introduced the most of such
measures compared to other regions.
On the one hand, there is signicant technological progress, but on the
contrary and in the situation of panic and uncertainty these innovations
entail new challenges for the freedom of information and related civil
liberties, which is not only a legal but also an ethical dilemma (Morley et
al., 2020; Servick, 2020).
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We can now see from this perspective that the freedom of information
is signicantly disturbed by the pandemics of Covid-19. Therefore, it is vital
for us to investigate domestic and foreign legislation in order to nd answers
whether some restrictions to this kind of civil liberty are appropriate or not.
1. Methodology
Concerning the study, a certain methodology was used to carry out a
thorough analysis of topical issues of restriction and protection of the
freedom of information under quarantine.
To nd the positive and negative aspects of the international experience,
to compare them with the Ukrainian legislation, a comparative legal
method was used. We used it in order to highlight what are the common
and dierent characteristics of the legal norms of various countries,
starting from Ukraine. The main international laws were also taken into
account. Particular attention was paid to the norms regarding the freedom
of information, hence the freedom of speech, the right to freely express
oneself, as well as the components of the right to information such as the
right to obtain, create and distribute it.
What is more, the dialectical method was used to analyze the causes
of restrictions on civil liberties on the Internet. It is essential to note that
in this aspect the development and trends before the pandemic were
considered since they had their impact on the current situation serving as
preconditions for what we can observe now, for example, when it comes to
the strengthening of authoritarian regimes since such trends existed before
the pandemic. This also applies to surveillance issues and problems with
personal data storage and sharing. We considered these problems in their
unity in time, and therefore in their development and change over time.
Further, the system-structural method was used to consider the whole
set of international and national regulations and the relationship between
them. The main point here was not to look at particular legal norm,
problem, or category as separated, or isolated from others, hence seeking
the interconnections between them.
Finally, it should be noted that the formal-legal method was used to
nd purely legal reasons for the above restrictions and the existing legal
grounds for them.
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The restrictions of the freedom of information during the Covid-19 pandemic
2. Review of International and National Legislation in the Field
of the Freedom of Information
One of the most important guarantees of the right to access the Internet
is to ensure the freedom of information. The basic act that guarantees its
observance is the Universal Declaration of Human Rights (1948). Article
19 proclaims the right of everyone to freedom of opinion and expression,
which includes the freedom to seek, receive, and impart information
and ideas by any means and regardless of frontiers. The need for and
importance of respect of these civil liberties are further underlined by the
fact that it is enshrined in the Preamble to the Human Rights Declaration
as one of the core values to which humanity should strive. International
Covenant on Civil and Political Rights (1967) in Art. 19 continues the idea
of the previous international law and guarantees everyone the right to
freely express their views. In addition to the general principles set out in
the Universal Declaration, the International Covenant establishes how this
freedom can be exercised – orally, in writing, through the press or artistic
forms of expression, or in any other way of one’s choice. No less signicant
is also Art. 10 of the Convention of Human Rights and Fundamental
Freedoms (1950), which enshrines the right of everyone to freedom of
expression. Unlike the previous two documents, the European Convention
establishes an extremely important guarantee of freedom of information –
non-interference by public authorities.
In regard of the Internet, special regional legislation of the Council of
Europe has been developed, including the Declaration on Human Rights
and the Rule of Law in the Information Society (2005), the Declaration
on Internet Governance Principles (2011), the Declaration on Freedom of
Communication on the Internet (2003) etc. Particularly, the Declaration
of the Committee of Ministers of the Council of Europe “On Freedom of
Communication on the Internet” adopted on May 28, 2003, establishes the
obligation of the member states of the Council of Europe not to impose
restrictions on the content of information posted on the Internet and to
refrain from state control over information posted on the Internet, except
for harmful data, for example, for children.
Ukrainian legislation has absorbed the key provisions of the Universal
Declaration of Human Rights, International Covenant on Civil and Political
Rights, and the European Convention on Human Rights. The Constitution
of Ukraine (1996) in Art. 34 guarantees everyone the right to freedom of
thought and speech, and the free expression of their views and beliefs,
which can be considered as parts of the freedom of information as we can
see that to impose certain restrictions censorship, on information posted on
the Internet is almost excluded under this Article.
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To specify the provisions set out in the Constitution in Art. 302 of the
Civil Code of Ukraine (Verkhovna Rada of Ukraine, 2003) enshrines the
right to information, which includes the right to free collection, storage,
use, and dissemination of information. In addition, to achieve an optimal
balance between the rights of this article, restrictions were also set, which
will be discussed in the following sections.
Specic laws, such as the Law of Ukraine “On Access to Public
Information” (Verkhovna Rada of Ukraine, 2011), the Law “On
Telecommunications” (Verkhovna Rada of Ukraine, 2004) and the Law “On
Information” (Verkhovna Rada of Ukraine, 1992) dene the basic principles
and principles of using the Internet, including in the aspect of receiving
and disseminating information. Also, the Law on Telecommunications
denes the concept of the Internet, according to which the Internet is a
global information system of public access, which is logically connected to
the global address space and is based on the Internet protocol dened by
international standards.
To ensure the implementation of these provisions, a large number of
bylaws are also set out. Thus, the Resolution of the Cabinet of Ministers
of Ukraine “On Approval of the Rules for Information Protection in
Information, Telecommunication and Information-Telecommunication
Systems” of March 29, 2006, No. 373 approved the basic principles of
information protection, the need for protection of which is provided by law.
3. Possibilities of Restricting the Freedom of Information
The freedom of information is not absolute as it may be limited in
particular cases provided by law and international standards. Most of all,
they are about great dangers to national security, risks to public health, or
the situation when the rights of other individuals may be violated by the
publication of particular information. For example, International Covenant
on Civil and Political Rights in Part 3 of Art. 19 determines the possibility of
imposing restrictions on the right to free expression of one’s views if this is
necessary to respect the rights and reputation of others or to protect state
security, public order, health, or morals of the population. Accordingly, Art.
15 of the European Convention of Human Rights provides the possibility
for States parties to derogate from the provisions of the Convention in
the event of war or an emergency within the limits of the “urgency of the
situation”. It is also provided that such measures do not conict with other
obligations of the State under international law.
An important condition for compliance with this Article is also to inform
the Secretary-General of the Council of Europe of the restrictions taken and
the reasons for such measures. At the same time, it is the prerogative of
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Oksana Kalitenko, Galyna Anikina, Ekaterina Spasova y Oleksandra Shahaka
The restrictions of the freedom of information during the Covid-19 pandemic
the European Court of Human Rights to identify the criteria according to
which all conditions are conrmed and, accordingly, the withdrawal of the
state from its obligations under the Convention can be recognized as lawful.
For example, in Denmark, Norway, Sweden, and the Netherlands v. Greece
(1969), the European Court stated that, in order to comply with a condition
of the public danger threatening the life of a nation (emergency) such a
threat must be exceptional in the sense that ordinary measures permitted
by the Convention to ensure public safety, health, and order are recognized
as clearly insucient. European Court for Human Rights developed
following criteria to decide whether restrictive measures deployed by the
State go beyond reasonable cause. Consequently, the following questions
need answers (Handbook of Article 15 of the European Convention on
Human Rights, 2016):
1. Was the existing national legislation sucient to deal with the threat
posed by the public danger (in our case, COVID-19 pandemics)?
2. Can the implemented measures be considered as a legitimate
response to an emergency (COVID-19 pandemics)?
3. Is the need for the assignment being reconsidered?
4. Are the measures used for the purpose for which they were
authorized?
Therefore, the court will need to lter the appeal through these criteria
in order to determine if the restrictions imposed by the jurisdictional State
were lawful and legitimate, that is, justied from the point of view of the
European Convention on Human Rights.
As for the Constitution of Ukraine, Art. 34 stipulates that the right
of everyone to freedom of thought and speech, to freely express their
views and beliefs, the right to freely collect, store, use and disseminate
information may be limited by law in certain cases. Such cases are in the
interests of national security, territorial integrity, or public order to prevent
riots or crimes, to protect the reputation or rights of others, to prevent
the disclosure of information obtained in condence, or to maintain the
authority and impartiality of justice.
All the above conditions for the restriction of this right indicate that it is
not absolute, and many scholars emphasize this in their work. Politansky
(2016) speaks of the relativity of the right to information due to the existence
of statutory possibilities for its restriction, necessary in a democratic society.
The Constitutional Court of Ukraine (2020) has the same opinion in
the decision on the constitutional complaint of Pleskach (concerning the
compliance of the Constitution of Ukraine (constitutionality) with the
provisions of the second sentence of part four of Article 42 of the Law of
Ukraine “On the Constitutional Court of Ukraine” (Verkhovna Rada of
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Ukraine, 2017). The court that the legislator is obliged to introduce legal
regulation that will optimally achieve a legitimate goal with minimal
interference in the exercise of the right to information. Moreover, the court
agreed that it is essential not to violate the substrate of such a right. It means
that governmental response which is out of hand in comparison to the
measures of minimal interference is unconstitutional or will be proclaimed
as such by Constitutional Court of Ukraine in the future. For example, it
can be internet blackouts, coronavirus cases stats manipulation, banning
peaceful Covid-19 restrictions-compliant protests, banning freedom of
speech, censorship, personal health information mismanagement, etc.
4. Restriction and Protection of Civil Rights on the Internet
during the COVID-19 Pandemic
It is necessary to take into account how the concept of false information
is regulated at the legislative level and what is the responsibility for its
dissemination. As an example, we prefer to start from domestic legislation
in Ukraine.
Ukraine’s Law “On Information” in Art. 28 names as one of the oenses
the abuse of the right to information, Art. 302 of the Civil Code of Ukraine
indicates such an oense as the use and dissemination of information about
the personal life of an individual without their consent. Numerous oenses
in the eld of violation of the right to information are contained in Art.
212-3 of the Code of Ukraine on Administrative Oenses (Verkhovna Rada
of Ukraine, 1984). For example, restriction of access to information, if it is
expressly prohibited by law. Art. 302 of the Civil Code of Ukraine establishes
the obligation of a natural person who disseminates information to make
sure of its authenticity unless such person disseminates information
obtained from an ocial source with reference to it. Besides, in Art. 277
indicates the possibility of a natural person whose personal non-property
rights have been violated as a result of the dissemination of unreliable
information about him or his family members to demand refutation of this
information. Accordingly, there is a provision in Ukraine’s legislation for
only civil liability for the dissemination of inaccurate information, and only
if it violated the personal intangible rights of individuals (Judgment of the
Civil Court of Cassation of the Supreme Court of 17 June 2020 in case No.
346/5700/17).
To clarify the concept of “unreliable information” we should refer to the
Resolution of the Plenum of the Supreme Court of Ukraine “On judicial
practice in cases of protection of dignity and honor of individuals, as well
as the business reputation of individuals and legal entities” of February 27,
2009, No. 1. In particular, following paragraph 15, unreliable information
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Oksana Kalitenko, Galyna Anikina, Ekaterina Spasova y Oleksandra Shahaka
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is considered unreliable or false, i.e., contains information about events
and phenomena that did not exist at all or that existed, but information
about them does not correspond to reality (incomplete or distorted).
Kucheryavenko (2019) referred to the denition of “unreliable information”
regarding the possibility to divide it onto ctional (information about events,
phenomena, or facts that did not take place at all) and false information
(the course of events is distorted).
According to Ishchenko (2020), currently, in Ukraine, the most acute
problem is not censorship, but the dissemination of unreliable information.
Citing many examples, the researcher points to the high level of
misinformation and disorientation (intimidation along with reassurance)
of the population about the coronavirus situation.
An example is insucient information of the people in Novi Sanzhary,
Ukraine, during the procedure of observation of Ukrainian and foreign
passengers from Wuhan, China – the original epicenter of the Covid-19
pandemics (Shirokova, 2021). The scandal occurred on February 20th,
2020. Then, locals reacted violently and inadequately to the arrival of
passengers from China for observation at the sanatorium with throwing
stones at buses with evacuees, which, in addition to psychological trauma,
could lead to severe physical injuries and other adverse consequences
(Goncharova, 2020). The fact is that not enough has been done by the
authorities, if not the opposite, in the situation in Novi Sanzhary (Zaichik,
2021; Shirokova, 2021).
On the contrary, it can be debated that at that time they did not have
enough information about the ways of coronavirus spreading, and all
media attention was focused on passengers arriving from Wuhan. It can
be understood that is was pointless in some sense and in such a situation
to communicate against the media and to assure villagers and the rest of
the country of the complete safety and formal character of the observation
measures. But the authorities had to do it properly anyways as it is their
duty to communicate with the public in full eect in order to prevent panic
(Isaacs et al., 2020; Lawrence et al., 2020). The question that should arise
here is: how does this relate to the violation of a person’s civil rights on the
internet? The fact is that at that time of disturbance in Novi Sanzhary some
fakes such as conspiracy theories of unknown origin were spreading on the
local Viber network, which only increased the panic and tension among the
locals (Zaichik, 2021; Shirokova, 2021).
While we still do not have conrmed data on who was dispersing the
protest mood among the villagers at that time, the head of the Ukrainian
Ministry of Culture and Information Policy made a statement with a hint that
it could be Russian bot farms (Ukrinform, 2021). He also pointed out that
his Ministry plans to open the platform for fact-checking the information
from various sources to help citizens upgrade their digital well-being.
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However, we do not currently have reliable data, which provides evidence
and investigates on who were spreading panic among the locals. This shows
that a thorough check of the information and proper communication with
the public is needed in order to help to avoid any negative consequences
and signicantly reduce the wave of disinformation about Covid-19.
Besides, certain measures are needed to prevent restrictions on the
right to freedom of expression and to protect the right to receive reliable
information on the Internet at the state level. First, the existence of a large
number of regulations related to information relations and information
oenses causes certain diculties for both ordinary people and lawyers.
The way out of this situation may be to codify the legislation by creating an
appropriate Code of Law, which would include the provisions of regulations,
or by issuing certain information or recommendation letter by the Ministry
of Information Policy of Ukraine, the Supreme Court, or another state body
of certain information or recommendation letter indicating the procedure
for applying existing regulations.
Secondly, if we turn to the experience of foreign countries in the ght
against fakes, then, as an example, we can cite the Network Enforcement
Act, adopted in Germany in 2017. It provides for the material responsibility
of social networks for not removing inaccurate information or aggressive
messages to which users complain. However, it is also obvious that such
laws enshrine the idea of censoring the Internet, which is desirable to
prevent in Ukraine in the future.
Additionally, it is vital to provide access to ocial information on the
situation with Covid-19 on the internet to the entire population (Lawrence
et al., 2020). During a coronavirus pandemic, it is signicant to inform
the public about all possible measures to combat Covid-19, changes in
legislation, and ocial statistics. At the same time, it is necessary to ensure
that a person can choose the source from which he wants to obtain relevant
information. In this regard, there is a necessity to protect the right of access
to public information, which, for example, is a component of the personal
right dened in Art. 34 of the Constitution of Ukraine.
Public information is information that is obtained as a result of
the exercise of their functions by the subjects of power, or which is in
the possession of such subjects or other administrators. Access to such
information, following Art. 5 of the Law of Ukraine “On Access to Public
Information” is provided either by systematic and prompt disclosure of
information, including on ocial websites and a single state web portal
of open data or by providing information at the request of the population
(Nekit et al., 2021).
Under Part 4 of Art. 15 of the above-mentioned Law, information on
facts threatening the life, health and / or property of individuals, and on the
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Oksana Kalitenko, Galyna Anikina, Ekaterina Spasova y Oleksandra Shahaka
The restrictions of the freedom of information during the Covid-19 pandemic
measures taken in this regard (directly related to information on Covid-19)
is subject to immediate disclosure by administrators. However, according
to the monitoring of the Oce of the Commissioner for Human Rights,
only 76% of public information managers publish on their ocial website’s
information on the administrative documents they have adopted to combat
the spread of coronavirus disease. Action plans to combat the spread of
coronavirus are properly published by only 50% of administrators, while
information on contacts through which the public can obtain ocial
information on the state of combating the spread of coronavirus is posted
on ocial websites by 44% of administrators (Parliament Commissioner
for Human Rights, 2020).
Such disappointing statistics indicate a direct restriction of the right
of citizens to access public information, guaranteed by the Constitution
and other legal acts. Currently, for non-disclosure of information, the
mandatory disclosure of which is provided by the Law “On Access to Public
Information”, administrators are administratively liable under Art. 212-3 of
the Code of Ukraine on Administrative Oenses.
However, given that the untimely disclosure of such information,
especially during the implementation of new quarantine measures in
connection with the coronavirus pandemic, can have serious consequences
for human health and well-being, and cause non-compliance by the
population, it is necessary to establish more strict administrative or
disciplinary liability for ocial administrators, in particular for the
systematic non-disclosure of such information. To accomplish this, it is
recommended to create a special law, which prescribes persons to whom
liability may be applied, and the mechanism and algorithms for holding
accountability for concealing publicly important information about
Covid-19 disease or for manipulating available information that is of public
signicance in the context of Covid-19.
An example is information related to state’s medical purchases, the
volume of available medicines, manipulations in the pharmaceutical
market, articial underestimation of the number of cases of Covid-19
infections, manipulation of statistics, etc. Accordingly, it may be helpful to
raise nes and strengthen responsibility for manipulating the data, which
in this special time should exceed the one under normal conditions. An
alternative way to solve the problem is to amend the existing legislation
on access to public information with tougher responsibility for concealing
and manipulating information on Covid-19, which should be separately
emphasized in amendments to the particular law. To accomplish this goal,
these amendments can be temporary. For example, they can last until the
expiration of the quarantine restrictions or have a prolonged duration. We
recommend making such edits permanent, given the scale and historical
signicance of the Covid-19 challenges and the number of people aected
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CUESTIONES POLÍTICAS
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by the disease. In case of temporal eect of such amendments, their
duration should be scripted in the nal and transitional provisions of the
law to which they are introduced.
Another problem is the compliance of quarantine measures with a
right to peaceful assembly, which is scripted, for example, in Art. 315 of
the Civil Code of Ukraine and prominent sources of international law
such as Art. 20 of the Universal Declaration of Human Rights, Art. 21
of the International Covenant on Civil and Political Rights, and Art. 11
of the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Negligent and brutal actions of policing structures
in this case only shows that it became common for authoritarian regimes
like those in the Republic of Belarus and Russian Federation to use
repressive law enforcement like as it were about punishing the protesters
for not keeping the social distance as a Covid-19 precaution (Wesolowsky,
2021). Consequently, unlawful police brutality was used as an instrument
of pressure on peaceful protesters, which also includes violation of the
right to information when disabling internet access (so-called “blackouts”)
before or during the protest (Auseyushkin and Roth, 2020; Bush, 2020).
This issue should still be kept as a concern for other countries.
Such a personal non-property right, as the right to education, perhaps
the largest among other rights, began to be exercised on the Internet
precisely because of the quarantine measures imposed. In particular,
the Letter of the Ministry of Education and Science of Ukraine “On the
organization of the educational process in general secondary education
during quarantine” of March 23, 2020, recommended that all general
secondary education institutions organize distance learning using distance
learning technologies.
The right to work as a personal non-property labor right also needed
to be implemented on the Internet. Many workers have been transferred
to telecommuting to minimize the risk of Covid-19 infection. According to
Gallup, 62% of Americans now work from home, when before the pandemic
the percentage of such workers was only 7% (Zojceska, 2020).
Ukraine is no exception. According to the Law of Ukraine “On
Amendments to Certain Legislative Acts of Ukraine Aimed at Providing
Additional Social and Economic Guarantees in Connection with the Spread
of Coronavirus Disease (Covid-19)” (2020), the spread of a pandemic in
the order of the owner or his authorized body may be a condition of remote
(home) work without the mandatory conclusion of an employment contract
for such work.
The right to freedom of movement is guaranteed by Art. 33 of the
Constitution of Ukraine and Art. 313 of the Civil Code of Ukraine. In
many countries, including Ukraine, special mobile applications have been
438
Oksana Kalitenko, Galyna Anikina, Ekaterina Spasova y Oleksandra Shahaka
The restrictions of the freedom of information during the Covid-19 pandemic
introduced to monitor compliance with the self-isolation regime. The ocial
state application “Action at home” was created to monitor compliance with
the regime of self-isolation of persons crossing the state border of Ukraine
at the time of the introduction of quarantine measures and chose the option
of self-isolation at the place of residence (Cabinet of Ministers of Ukraine,
2020). During use, the system at various times sends a message conrming
the location of the person by uploading a photo with the face. In addition,
the system receives geolocation data of the person for verication with the
geolocation of the place of residence. In case of non-compliance with the
application requirement, the system sends a message to the National Police.
Thus, we can talk about the restriction of the right to freedom of movement
through ocial government online applications (Krusian et al., 2021).
However, in this situation, this is not the main problem that arises when
using such an application. Among other problems, there are:
• the presence of only one language – Ukrainian, which makes it
impossible for people who do not speak Ukrainian to use it.
• a large number of bugs, due to which users simply could not upload
photos in time, after which, even if the citizens observed self-
isolation, the National Police ocers issued nes.
Besides, for early termination of self-isolation, it is necessary to
pass a coronavirus test. However, the Ministry of Health of Ukraine has
independently selected laboratories that have the right to enter the relevant
information into the system after the test, although the tests are done for
money. Also, to these inconveniences, excessive bureaucracy and articial
barriers create the basis for corruption (Romanenko, 2020).
Thus, in addition to the restriction of the right to freedom of movement,
the existence of other problems described above makes such a right quite
unprotected in the online space. Therefore, it is debatable that the introduced
measures were fully eective and compliant with the observance of civil
liberties since their “side eects” in the form of shortcomings directly or
indirectly encroached on a persons’ right to privacy and the convenience to
dispose of personal time freely, without interruptions, and inconveniences,
which are not of their responsibility. We are convinced that all of this will
be the subject of judicial review in the future. Perhaps, some complex
cases will reach the European Court of Human Rights (1969). However,
we do not yet have enough scientic data on this matter, since the cases
are under consideration at the moment and taking into account the current
development of events. Consequently, the court practice on these issues has
not yet been nally formed.
It should also be noted that on June 27, 2016, the UN Human Rights
Council adopted a Resolution “On the promotion, protection, and realization
of rights on the Internet”, which stressed that all rights that belong to people
439
CUESTIONES POLÍTICAS
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oine should be protected online. Additionally, the leading role of the state
in promoting this was taken into account, in particular through cooperation
with civil society, the private sector, the technical and scientic community.
However, to fully protect all human rights that he has oine on the
Internet, it is necessary to amend the existing legislation on the equalization
of the rights of person’s oine and online rights. Undoubtedly, there is
also a need to rene the existing application “Action at home” for more
comfortable use and the development of such a mechanism by which a
person can independently choose any ocially registered laboratory to test
for coronavirus at a negotiated price.
Conclusions
The Covid-19 pandemic and the implemented quarantine measures
have revealed the problems of restriction and protection of civil liberties,
which have long hung over our societies.
The emergence of a large number of fake news about the coronavirus
on the internet has led to two key problems. First, the problem is the very
existence of so many fakes and, in most cases, the inability to prosecute
those who intentionally distribute them, even in the presence of negative
consequences. The solution to this problem can be the codication of
existing legislation on information and information oenses into a single
law or code, giving social networks the status of the media and establishing
legal liability for disseminating inaccurate information, in case such actions
cause harm.
Given the serious consequences that may result from the untimely
disclosure of vital information about coronavirus, it is necessary to establish
stricter administrative or disciplinary liability of public information
managers, in particular, for systematic misrepresentation or non-disclosure
of public information of high importance.
The development and implementation of the mobile application
“Action at Home” not only limited the right of individuals to freedom of
movement but also caused several related problems. Moreover, the use
of the application is complicated by a large number of bugs and the lack
of languages other than Ukrainian. The solution is to constantly improve
the application, eliminate all bugs, and introduce a mechanism by which
a person can independently choose a laboratory to test for coronavirus to
prematurely end the self-isolation regime.
In addition, tracking and surveillance trends become alarming. Under
the inuence of the pandemic, authoritarian regimes do not hesitate to
introduce more sophisticated restrictions under the pretext of observing
440
Oksana Kalitenko, Galyna Anikina, Ekaterina Spasova y Oleksandra Shahaka
The restrictions of the freedom of information during the Covid-19 pandemic
quarantine measures, which poses a threat to human rights all around the
world as it can serve as a bad example even for developed democracies.
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