Freedom of Expression for the Next 5 Billion Internet Users

Like no medium before it, the Internet can empower citizens to communicate instantaneously with others in their own communities and worldwide, at low cost relative to traditional forms of media. The Internet’s unique attributes create new opportunities to collaborate, exchange ideas, and promote scientific, cultural, and economic progress. Producers of traditional forms of media also can use the Internet to greatly expand their audiences at nominal cost. Like no other technology, the Internet can transcend national borders and eliminate barriers to the free flow of information and ideas. Of course, despite its unique qualities, the Internet remains inaccessible to a large percentage of the world’s population. Nevertheless, the Internet has grown much faster, reached far more people, and become far more critical to economic activity and human development than any other medium in history.

If the unique features of the Internet are properly supported, this medium can foster innovation, economic growth, democratic participation, and human development. However, freedom of expression and human rights on the Internet are not guaranteed by technology. The open Internet as it exists today did not come about by accident. Rather, today’s Internet is possible because of very specific choices made in technology, policy, and law that encourage innovation and preserve the openness of the platform. The unique attributes of the Internet are not immutable and not even its open architecture is assured. While the Internet can operate without gatekeeping, it has nodes that can become checkpoints. While it is designed to be global and borderless, it is vulnerable to national controls. The very power of the Internet’s technology is double-edged: networked technologies can enable the exercise of rights, or be used by governments to exert greater control.

And without doubt, governments are increasingly imposing legal and technical controls on the medium. Some governments censor or punish various kinds of expression online, just as they did offline. And all governments are struggling with policy challenges made more complex by this borderless medium. Laws passed for legitimate aims can also undermine exercise of the right to freedom of expression online.

Some governments have enacted laws prohibiting a wide range of content on the Internet and have, in varying degrees, taken action against not only those who author such content, but also the service providers that host or provide access to it. A number of governments control access to information through filtering technologies, either implemented directly by the government or with the assistance of Internet access providers. And in still other countries, governments have encouraged forms of “self-regulation” that are in fact intended to enlist service providers in controlling their customers. Other policies indirectly threaten the freedom of expression online, including the extraterritorial application of civil and criminal defamation law, pervasive surveillance, and the curtailment of anonymous or pseudonymous Internet use.

In opposition to these efforts stands a robust and growing body of international law protecting the right to freedom of expression. All the major human rights instruments articulate the right to seek, receive and impart information in terms clearly applicable to the Internet.

However, these human rights instruments also recognize legitimate restrictions to the right, and there are limits to existing enforcement mechanisms. In addition, not all states are parties to a binding human rights agreement. While the right to freedom of expression is still being tested and advanced with respect to traditional media, it is time to begin developing an international human rights jurisprudence of free expression online. In fact, the process has already begun.

As national, regional and international judicial bodies continue to articulate free expression standards for the Internet, they should keep in mind unique qualities of the medium. The uniquely abundant, user-controlled, and global nature of the Internet may justify more robust protection of online communications than is accorded to traditional media platforms. The concept of a right to “impart” information may take on new meaning in the “Web 2.0” era, where online entities provide free-of-charge platforms for the creation and dissemination of “user-generated content.” Similarly, the right to “receive” information becomes more powerful when individuals have the entire world at their fingertips once they get online. The traditional deference given under international law to local norms (the “margin of appreciation”) might need to be reconsidered when Internet censorship in one country may constitute a direct infringement on the right of persons in other countries to “impart” or “receive” information “without regard to frontiers.”

These unique aspects of online communication raise critical questions for the human rights community, for human rights institutions, for the Internet industry, and for national, regional and international policymakers:

• How should the various human rights standards and norms be applied to the Internet?
• Does the unique technical architecture of the Internet – and the resulting empowerment of individual citizens and unlimited capacity for content – justify stronger protections than those afforded to other media?
• How will the limitations to the right to freedom of expression be interpreted in the online context?
• How does the ease of circumvention of some technical measures or the existing of user-controlled filtering tools to protect children affect analysis of whether a limitation is “necessary” to achieve a legitimate aim?
• What is the proper balance between rights that may be in tension on a global medium, such as freedom of expression and protection of human dignity?
• How should human rights courts and institutions respond to Internet-specific issues such as online filtering, pervasive surveillance, restrictions on anonymity, and intermediary liability?

In sum, the Internet’s unique characteristics raise novel questions and present important opportunities for strengthening protections for freedom of expression in the digital age. How we answer these questions will determine the extent of freedom of expression enjoyed by the next five billion users who will join the global online community.

To contribute to the ongoing human rights dialogue, CDT has released version 0.5 of “Regardless of Frontiers:” The International Right to Freedom of Expression in the Digital Age. This report explores how the right to freedom of expression should apply to the Internet.  It examines existing jurisprudence from major international and regional human rights instruments. In short, many human rights courts and commissions have not addressed how freedom of expression standards should be interpreted for online expression, though some relevant guidance from other mechanisms exists. The report also explores new challenges (and opportunities) for freedom of expression in the digital age, including filtering, defamation laws online, jurisdictional issues, intermediary responsibility, anonymity, and Internet neutrality.  Finally, given the unique nature of the Internet, the report begins to put forth progressive interpretations of human rights norms to ensure the broadest extension of human rights protections in the digital age. CDT is releasing version 0.5 of this paper as a discussion draft, which we will revise with feedback.  We welcome input from all stakeholders.

“Regardless of Frontiers” is intended to spark further research, discussion, and activity among government, civil society, and industry actors.  It is not a recipe book, but rather a call to action. Governments all over the world are asserting greater control over the Internet or struggling with policy challenges made more complex by this borderless medium. Millions of new users are connecting to the Internet every year worldwide. To ensure the broadest extension of human rights protections, a range of stakeholders must begin to put forth progressive interpretations of human rights norms in the digital age. A number of efforts are underway, but the work has just begun.