Critical discussions of liberty are typically concerned with the extent to which individual liberty ought to be preserved and protected.
Such a consideration often hangs on the foundation of the principle of individual liberty. John Stuart Mill presents a persuasive account for individual liberty subject to the harm principle. In his argument Mill explores the liberty of expression to indicate when state interference to restrict individual liberty may be justifiable.
This piece will discuss Mill’s proposition that the exercise of state authority over individuals against their will may be warranted in the case of freedom of expression in accordance with the harm principle – using a recent South African case study. It will examine Mill’s position that state protection of individual liberty is contingent upon consequentialist utilitarian principles.
In doing so, Mill demonstrates that there are indeed instances where state interference with individual liberty can be justifiable; including in the case of legislation which outlaws fake news.
In the first instance, Mill does not base the principle of individual liberty on fundamental rights but rather on its instrumental value. Its value in achieving a desired end. Mill appeals to the utility of individual liberty as the basis for its extensive protection, unlike the Rawlsian appeal to natural rights. Individual liberty of expression, Mill posits, is worth extensive protection because it facilitates and maintains a public good.
The liberty to express diverse views allows for a competition between views for a clearer perception of the truth. It allows for the exchange of error for truth as well as a more cogent understanding of the truth. When a truth is held without engagement with counterviews it goes unchallenged and therefore never requires defense. It is held as true, not by the merit of its argument, but by virtue of being uncontested. It is ‘true’ by default.
Whereas, the expression of diverse views initiates discourse. Through this, opposing views are able to engage in a challenge for the truth or share the truth between themselves. Alternative views may share the truth between them, Mill postulates, as a dissenting view is often necessary to provide the remaining facets of the truth. This exercise of engagement between competing views is valuable for numerous reasons.
Firstly, it illuminates the truth by ensuring that any prevailing truth is be able to withstand challenge as to its veracity. It is no longer enough for a view to merely be expressed as truth. It ought also to defend itself according to the merits of its case in the face of counterarguments. Moreover, the freedom to express alternative views makes sets a standard for truth. An objective truth threshold.
A poignant analogy is that of the marketplace of ideas. Here, shoppers in the marketplace behave like those in a grocery marketplace where shoppers scrutinize goods often picking them up to assess the weight, colour, and overall quality of the goods prior to making a purchase. They evaluate and scrutinize each idea that attracts their interests at the marketplace of ideas before consciously deciding to adopt it as truth.
Ideas adopted in this way are less likely to be dislodged because they undergo a process of critical inspection and challenge against alternative views and prevail based on their merits. Also, the shopper is making a conscious decision to adopt the view which is most persuasive because the process requires active critical engagement.
In this way, the the standard is twofold. The prevailing view must be persuasive on its own merit, and defensible against counterviews.
The liberty to express diverse opinions is a public good which is facilitated by free expression. Therefore, it satisfies both consequentialist and utilitarian principles because it is an instrument used to maintain a public good. The value of this public good, Mill posits, is such that it necessitates the invention of dissenting views when none exist.
There are, however, instances when the state may be justified to legally restrict free expression. These instances are those in which the harm principle applies. The harm principle provides simply that the only time the state may be justified to interfere with the individual liberty of expression is to ensure the safety of others who may otherwise come to harm.
This aligns with the pluralist view to which Mill subscribes. The harm principle is concerned with restricting individual liberty only in the case of protecting others from harm. Also understood as other-regarding actions. Self-regarding actions are in the private sphere of activity where state inference is not usually permissible.
Two issues immediately arise. First, the distinction between self- and other-regarding actions is not always clear. Secondly, although the harm principle is a necessary condition for legal restrictions on individual liberty, it is not adequate in itself as a condition to justify state interference. Harm does not provide a fool-proof criterion for when individual expression may be curtailed.
However, offense is not a harm that justifies prevention. Offense is not a harm protected by the harm principle. Instead, expression is evaluated based on its use or harm which derive from its truth and falsehood respectively.
Mill exposes that a claim of harmful expression is itself a subjective evaluation and a matter of opinion. Moreover, sometimes opposing views share the truth between them. We ought to always be reluctant to interfere with free individual expression. Dissenting views are often valuable as they provide the remaining facets of the truth. This is when contesting views share the truth between them.
This is distinguishable from a pluralist position which rejects the existence of a single dominant metanarrative. This discussion informs the exploration which follows. It considers the decision of the National Coronavirus Command Council (NCCC) to legislate against fake news.
In response to the COVID-19 global pandemic, South Africa’s NCCC (empowered by the Disaster Management Act 57 of 2002) gazetted regulations which effectively outlawed participating in the creation and transfer of fake news relating to the Coronavirus pandemic.
Namely, the COVID-19 virus; the COVID-19 infection status of any person; and any measure taken by the government in addressing the COVID-19. This enquiry will consider Mill’s view on this legislation in accordance with the harm principle in a contemporary context.
At first glance, Mill would say that even fake news about COVID-19 is valuable to the extent that it gives significance and clarity to the truth about COVID-19 and the Coronavirus pandemic. In a way, it illuminates why the truth is true.
Secondly, the three categories of expression specified by the legislation are other-regarding actions. The regulations are concerned with the act of publishing a statement in any of the above three categories on social media and any medium with the intention to deceive another person. The provision required the intention by one person to deceive another about the COVID-19 virus. This is a prohibition of a specific other-regarding action. It is thus within the realm of justifiable interference. Depending, of course, on utilitarian consequentialist principles – to which I now turn.
As a utilitarian consequentialist, Mill would consider keenly the justifications offered by the NCCC for the legislation against fake news. The Council argues that viral misinformation and fake news pose ‘the biggest’ risk for the spread of the Coronavirus in South Africa.
The Council holds that a solid strategy is necessary with regard to the socio-political and economic discourse around the Coronavirus and the global pandemic. The publishing of fake news and deliberate misinformation about COVID-19, the NCCC says, will lead to the deaths of many.
The NCCC is submitting utilitarian grounds for the restriction of free individual expression. South Africa is considered a developing country. It also exists in the context of a global pandemic.
Moreover, the history of spatial planning in South Africa means that areas which are densely populated are usually also peri-urban areas which lack access to information. These high risk areas are townships which are populated by middle to low income earners who are lack resources to verify information, or lack exposure to credible news sources altogether.
It is vital that discourse around the COVID-19 pandemic be controlled and limited to information verified as factual. This socio-econo-political context means the harm that may come from the intentional deception and viral misinformation about COVID-19 in South Africa could be fatal on a significant scale.
False expression, in this instance, is harmful to a greater extent than it is valuable to the discourse around the COVID-19 virus. The overall adverse consequences of intentionally deceiving others about the highly infectious Coronavirus during a global pandemic far outweigh the overall benefit of the publication of such expression . Having considered the above, Mill would consider South Africa’s fake news legislation a legitimate temporary interference with individual free speech. It is justifiable in accordance with the harm principle.
The harm principle requires that state interference with individual liberty be in the interests of the safety of others, as well as adhere to utilitarian consequentialist principles. The South African case study above depicts a circumstance when it is indeed justifiable for government to pass laws against fake news. This restriction to the liberty of individual expression is warranted and is aligned with the harm principle.
Thus, Mill is likely to concur with the decision to legislate against false expression about the COVID-19 virus.
– Lele M
Lele Muthali 