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Freedom of Expression Part 5: COVID Vaccines not Mandatory

In Part 4 of the Freedom of Expression series, I had highlighted my concerns about the lack of transparency in ingredients of all the COVID-19 vaccines, which has been addressed by Council of Europe’s Parliamentary Assembly, the same day (World Holocaust Day) I had raised these concerns.

A recent Resolution by the Parliamentary Assembly of the Council of Europe will see the further regulation of social media on content relating to COVID-19. The Parliamentary Assembly of the Council of Europe (PACE) is one of the two statutory organs of the Council of Europe. It is made up of 324 parliamentarians from the national parliaments of the Council of Europe’s 47 member states.

The issue that surfaces from the Resolution pertaining to the Internet governance are who defines what “misinformation” and “disinformation” is in this context. Arguably there is content which censorship entities have classified as “hate speech,” which has fallen into either of the above categories. Notably, to date, Council of Europe’s Steering Committee on Media and Information Society (CDMSI), which is vested with the important mission to steer the work of the Council of Europe in the field of freedom of expression, media and Internet governance, is currently accepting submissions for consideration before the Ministerial recommendation is prepared in terms of approach to hate speech, including the context of the online environment by the 16th February 2021.

In its 5th Sitting this year on 27th January 2021, the Parliamentary Assembly passed Resolution 2632 (2021) on COVID-19 vaccines; ethical, legal and practical considerations.

Whilst noting that the rapid deployment of safe and efficient vaccines against COVID-19 would be essential to contain the pandemic, protect health care systems, save lives and restore global economies and highlighting the need for international cooperation, adequate vaccine management and supply chain logistics, it encouraged Member states to prepare immunization strategies to allocate doses in an ethical and equitable way deferring to bioethicists ad economists on distribution models should the vaccine be scarce.

Of significance, is the resolution that the vaccine must be a global public good with immunization be made available to everyone, everywhere and that with respect to the COVID-19 Vaccines to ensure the following:

  • that high-quality trials that are sound and conducted in an ethical manner in accordance with the Convention on human rights and biomedicine (ETS No. 164, Oviedo Convention) and its Additional Protocol concerning Biomedical Research (CETS No.195); (see 7.1.1)
  • that regulatory bodies in charge of assessing and authorizing vaccines against COVID-19 are independent and protected from political pressure; (see 7.1.2)
  • pay special attention to possible insider trading by pharmaceutical executives or pharmaceutical companies unduly enriching themselves at public expense by implementing the recommendations contained in Resolution 2071 (2015) on Public health and interests of the pharmaceutical industry: how to guarantee the primacy of public health interests? (see 7.1.6)
  • To put in place systems to monitor the long term effects and various other measures intended to safeguard the global public interest.

In a time where regulatory bodies in charge of assessing and authorizing vaccines against COVID-19 in jurisdictions like the United States of America have lost their independence with regulators being allowed to patent discoveries and abuse their positions in pushing their interests and where the US Congressional Parliament has issued indemnification for Pharmaceutical companies.

It was in 1950 when President Truman signed the Executive Order 10096, which has since enabled Federal employees to hold patents developed on Federal government time (Green, J. Government vs. the Federal Employee: Who Owns the Patent?, Letter from the Office of General Counsel). Federal courts have upheld this, see Heinemann v. the U.S., 796 F.2d. 451 (Fed. Cir. 1986) cert. denied, 480 U.S. 930 (1987). President Truman’s Order was subsequently modified by President Kennedy transferring jurisdiction of patent determinations from the Government Patents Board to the Secretary of Commerce, and in 1988, as a result of President Reagan’s initiative to transfer government technology to the private sector and to encourage federal employees to generate inventions, the US Commerce Department issued regulations (37 C.F.R. part 501) which addressed federal government ownership rights to patents developed by federal employees (supra).

The Supreme Court of the United States concluded that federal law protects vaccine makers from product-liability lawsuits that are filed in state courts and seek damages for injuries or death attributed to a vaccine see Brueswitz et al v Wyeth LLC, FKA Wyeth, Inc., et al , 562 U.S.223, 131 S.Ct.1068 (2011). The Brueswitz family had brought a lawsuit against Wyeth (now Pfizer) where they argued that their daughters suffered seizures after her third dose of the DTP vaccine in 1992 and that a safer alternative had been available but not made available to them. The vaccine was taken off the market in 1998 and replaced. Pfizer argued that a Supreme Court ruling favoring the family would have sparked countless lawsuits, threatening the supply of childhood vaccines. One of the rationales of the Supreme Court’s decision came from the fact that vaccine manufacturers fund their sales from an informal, efficient compensation program for vaccine injuries. The Supreme Court explained that the National Childhood Vaccine Injury Act of 1986 (NCVIA or Act) preempts all design-defect claims against vaccine manufacturers brought by plaintiffs seeking compensation for injury or death caused by a vaccine’s side effects.

We see the distinction between the Council of Europe and the United States in their approach, whether it is their approach to the treatment of corporates, taxation, safe harbor principles, and in this case arriving at producing a global public good without compromising the global public interest.

Of note also in Council of Europe’s Parliamentary Assembly Resolution 2632 (2021) on COVID-19 vaccines; ethical, legal and practical considerations is the right to refuse the vaccine and not to be pressured in taking it not discriminated in not taking the vaccine.

The Parliamentary Resolution is also clear about ensuring:

  • that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially or otherwise pressured to get themselves vaccinated if they do not wish to do so themselves (see 7.3.1)
  • ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated (see 7.3.2)
  • take early effective measures to counter misinformation, disinformation and hesitancy regarding COVID-19 vaccines;
  • distribute transparent information on the safety and possible side effects of vaccines, working with and regulating social media platforms to prevent the spread of misinformation (see 7.3.4)
  • communicate transparently the contents of contracts with vaccine producers to make them publicly available for parliamentary and public scrutiny (see 7.3.5)

Other things being equal, I am glad that the Council of Europe has made it mandatory for pharmaceutical companies to publish and disclose all ingredients, side effects and pursuant to Resolution 2337 (2020) that parliaments are playing their triple role of representation, legislation and oversight in pandemic circumstances. What concerns me, though, is the increasing online censorship and the abuse thereof.

Note: For those who wish to make submissions to The Committee of Experts on Combating Hate Speech (ADI/MSI-DIS), send your submissions to CDMSI Secretariat by 16th February at the latest.

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