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Jumpstarting a Human Rights Jurisprudence for the Internet

Today, the UN Special Rapporteur on freedom of opinion and expression Frank La Rue presented his report on freedom of expression and the Internet to the Human Rights Council in Geneva (see CDT’s official statement on the report). The report declares that “the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information and for facilitating active citizen participation in building democratic societies,” in part due to its unique architectural characteristics. The report also reaffirms the full applicability of Article 19 of the Universal Declaration of Human Rights and the ICCPR to the Internet, a technology that has become increasingly essential to many aspects of daily life. We welcome the Rapporteur’s report as a significant contribution towards the development of a progressive human rights jurisprudence for the Internet.

In preparation for his report, the Rapporteur held five regional consultations with Internet experts, human rights defenders, and new media journalists to better understand their experiences and priorities in different countries. I had the pleasure and privilege of attending these consultations and hearing firsthand the challenges faced by Internet activists and human rights defenders using networked technologies in their daily work: Old-fashioned techniques of violence and intimidation of Internet writers, expanded criminalization of expression (often aggravated by the Internet’s borderless nature), and increasing Internet filtering continue to present barriers to expression. But participants also expressed how intermediary liability laws, cyberattacks, unreasonable surveillance, and inadequate data privacy protections – both in law and in practice among online service providers – create very real chilling effects on expression and association. Participants also wanted to know whether and how companies who provide the platforms for their activism will respond to government demands to censor expression or violate individual privacy. And of course, meaningful access to ICTs remains a serious barrier to billions.

But many open questions remain about how to apply and interpret existing human rights norms in light of these new challenges. The Rapporteur’s report documents these trends, situates them within existing human rights jurisprudence, and makes a number of recommendations to states and the private sector. For example, the Rapporteur:

  • calls for greater transparency around governmental filtering practices to ensure such measures are truly necessary and proportional for achieving a legitimate governmental aim;
  • calls for the decriminalization of defamation;
  • warns against delegating enforcement of laws to Internet intermediaries;
  • underscores that ICT companies themselves have a responsibility to respect human rights;
  • calls on states to repeal IP enforcement laws that permit disconnection of users’ Internet access;
  • notes that states have a positive obligation to protect individuals against interference with the right to freedom of expression by third parties, such as through cyberattack;
  • underscores states’ obligations to adopt effective data protection laws and to ensure any state restriction on privacy (as with surveillance) respect the principles of necessity and proportionality; and
  • calls on states to ensure anonymous expression and refrain from adopting real-name registration requirements.

As an American abroad at these consultations, I was also the focus of many questions at the consultations about how western democratic nations are beginning to regulate the Internet. Will the US enforce meaningful rules to promote Internet neutrality? Will the US expand CALEA-like technology mandates to enable surveillance of new kinds of online communications tools? And will other countries follow France’s lead in enacting graduated response laws that could lead to disconnection of Internet access for copyright violations? Even in regions where Internet penetration rates are at their lowest, advocates were worried about what kind of Internet they would have access to once the infrastructure was in place, given regulatory precedents set in the democratic west.

Governments, civil society, and industry all have a role to play in building on the Special Rapporteur’s work moving forward. The Rapporteur’s observations and recommendations provide a source of norms for use in national and international advocacy, strengthened by the global outreach and broad input that fed into the report itself. The report is also a source of interpretive guidance for states seeking to cure legitimate social ills and address complex policy challenges in ways that are consistent with their human rights obligations. And Internet rights advocates based in the democratic west have a critical role to play in ensuring that Internet freedom begins at home as our own governments debate key issues of Internet policy.

The Special Rapporteur’s report is merely a starting point for a larger conversation, and a welcome one. As the Rapporteur affirms, “[b]y acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.” To ensure the broadest extension of human rights protections, stakeholders must continue to put forth progressive interpretations of human rights norms for the digital age.