JUSTICE - No. 65

32 No. 65 JUSTICE the balance between individual and societal rights, and between protection against the virus and the fight against antisemitism. A declaration is not a law, but it could be a useful guide in applying existing laws, regulations and policies. Such a declaration should address all facets of the impact of COVID-19 on the discrimination of minority groups, especially Jews, and any effort to fight discrimination that is affected by the coronavirus, including such issues as funding and restriction of activities brought about by closures. Digital Considerations There are three different avenues for combating COVID-19 related antisemitism on the internet — through governments, internet providers and civil society. The“UN Guidance Note on Addressing and Countering COVID-19 related Hate Speech” is directed to all three. 18 For governments, its recommendations include: a) Robust public messaging against COVID-19 related hate speech, disinformation, misinformation, and conspiracy theories; b) Support for transparent, accessible and independent systems for monitoring COVID-19 related hate speech; and c) Support for the independent production and dissemination of professional and accurate public interest narratives about the experiences of those most vulnerable to COVID-19 related hate speech. For internet providers, its recommendations include ensuring that their policies concerning hate speech: a) Are precise and set out in an accessible, transparent and comprehensible manner; are developed and applied in line with the standards of international human rights law; b) Involve an evaluation of the social and political context, the status and intent of the speaker, the content and extent of dissemination, as well as the likelihood of harm on users and the public; and c) Involve communities most affected by content identified as hate speech in the development of effective tools to address harm caused on the platforms. For civil society, recommendations include: a) Influential figures in society should actively speak out against COVID-19 related hate speech, misinformation, disinformation and conspiracy theories, and b) Civil society organizations should collaborate with relevant stakeholders – including governments, United Nations, regional organizations, social media and tech companies, journalists, and academic institutions and experts – on initiatives to monitor and report on the nature, scale and impact of COVID-19 related hate speech, as well as legislative and policy measures intended to address such expression. The advantage of governments engaging with this issue is that they have the ability to compel and they have institutional expertise and procedural mechanisms to address the issue. The disadvantage is that they suffer from territorial restrictions and the need to balance the right to freedom from incitement to hatred with the right to freedom of speech. The advantage of relying on private sector entities is that they operate the systems that generate the problems, their services transcend geographical boundaries that limit the reach of the laws that could apply to them in countries where they are not physically located, and they are not subject to constitutional free speech guarantees, which typically apply only to governments. The U.S. Supreme Court, for instance, when addressing the right to freedom of speech in the U.S. Constitution, ruled: The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. … a private entity such as MNN [a cable channel] who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment [which guarantees freedom of speech] constraints on its editorial discretion. 19 On the other hand, private sector actors may not have the expertise or the procedural mechanisms in place to address the problems their systems have generated. The advantage of civil society is its scope, motivation, and expertise. The disadvantage is that it is often unable to be effective on its own. 18. Supra note 16. 19. Manhattan Community Access Corp. v. Halleck 587, U.S. (2019) 139 S. Ct. 1921; 204 L. Ed. 2d 405.