ARTICLE 19 welcomes that the UN Human Rights Council (HRC) has once more affirmed that “the same human rights that people have offline must be protected online”, in a resolution adopted by consensus on 5 July 2018.
The resolution shows normative progress, in particular by addressing human rights issues around digital divides, including on the basis of gender, as well as the role of businesses like social media companies in respecting rights. Other updates, including strong language on anonymity and encryption, consolidate normative progress achieved in other HRC resolutions, and are also welcome.
“At a time when an increasing number of governments are seeking to control and censor the Internet, the international community’s reaffirmation that the same rights we enjoy offline must be protected online is crucial. Implementing this resolution’s broader commitments, requiring action from States and the private sector, is essential to push back against these trends”, said Thomas Hughes, Executive Director of ARTICLE 19.
“Though multilateralism is facing increasing strains, the cross-regional support this resolution has received underscores the universality of the right to free expression, and the importance of an Internet that is truly global, free and open. States committed to these ideals must increase their engagement at the HRC, setting out a positive digital rights agenda to defend these freedoms against detractors even more resolutely”, Hughes added.
The resolution on “the promotion, protection and enjoyment of human rights on the Internet” (A/HRC/38/L.10/Rev.1) was adopted by consensus on the penultimate day of the 38th Session of the HRC in Geneva. It is the joint initiative of Brazil, Nigeria, Sweden and Tunisia (“the core group”), and attracted co-sponsorship from more than 60 States at the time of adoption.[1] It is the fourth HRC resolution with this title, forming part of an initiative dating back to 2012. No States formally disassociated from language in the resolution at adoption, as some States have previously.
ARTICLE 19 calls on all States that have not already done so to cosponsor the resolution, and to prioritise action at the national level to implement the commitments it contains.
Progressing and consolidating standards
The resolution restates many of the commitments made in previous HRC resolutions on the Internet and Human Rights, which all remain significant for reasons we have previously outlined.
On a number of additional issues, including several of which ARTICLE 19 highlighted as requiring greater attention by the HRC, the resolution makes notable progress, while also consolidating important standards from resolutions on the safety of journalists and on the right to privacy in the digital age.
Digital divides, including based on gender
The resolution makes the most normative progress in addressing the issue of digital divides, including by reflecting on the report of the High Commissioner for Human Rights on gender digital divides.
The resolution applies a particular focus to addressing gender-based digital divides, calling for greater gender considerations in applying a “comprehensive human rights-based approach in providing and expanding access to information and communication technology.” Only 47% of the world’s population is connected to the Internet, with those not connected disproportionately poor, rural, older and female. This limits disconnected populations’ enjoyment of all human rights, not only freedom of expression, but across the spectrum of civil, political, social, cultural and economic rights.
Beyond the issue of Internet access, the resolution also calls for gender equality more broadly in the “design and implementation” of ICTs and in the policy decisions and frameworks regulating them. Reflecting an issue profiled in the High Commissioner’s report, the resolution brings a focus to education and access to employment to address the underrepresentation of women in the ICT industry, in particular in leadership and technical positions.
Relatedly, the resolution calls for “enabling environments” for the exercise of human rights online, and condemns “unequivocally” online attacks against women, in particular those targeting women who engage in public debates. This complements a resolution, also adopted by consensus at the 38th Session, on “Accelerating efforts to eliminate violence against women and girls: Preventing and responding to violence against women and girls in digital contexts”.
Responsibilities of social media companies
Mirroring progress made in HRC resolutions on the right to privacy in the digital age, the resolution recalls the UN Guiding Principles on Business and Human Rights (“the Ruggie Principles”) as they apply to business enterprises, such as social media companies and internet service providers, and their responsibilities to respect human rights.
Crucially, the resolution recognises that “international human rights law should guide private sector actors and be the basis for their policies.” This responds to concerns raised in the recent report of the the UN Special Rapporteur on freedom of expression to the HRC, that social media companies have become “enigmatic regulators, establishing a kind of ‘platform law’ in which clarity, consistency, accountability and remedy are elusive.” The report proposed “a human rights by default” approach to content regulation by companies, in part because it would enable social media companies to be more resilient to government censorship demands which violate international human rights law.
This issue is also addressed in a new ARTICLE 19 policy, “Side Stepping Rights: Regulating Speech by Contract”, which supports many of the Special Rapporteur’s recommendations in calling for specific actions from States and private actors.
Encryption and anonymity
Taking language again from the latest HRC resolution on privacy, as well as concepts integrated to resolutions on the safety of journalists, the resolution calls for private companies to work to secure the confidentiality of digital communications. It calls on States not to interfere with the use of anonymity or encryption.
Undue restrictions and legal frameworks
The resolution “condemns all undue restrictions on freedom of opinion and expression and opinion online”, noting that such restrictions have a particularly significant impact on individuals and groups experiencing discrimination, including women and girls. On this same concern, it calls for States “to ensure that all domestic laws, policies and practices” are consistent with their international human rights obligations on freedom of expression, also calling for accountability for human rights violations such as arbitrary detention, which often results from the application of laws not in conformity with international human rights law.
It remains a longstanding concern of ARTICLE 19 that States continue to use draconian or new forms of legislation to criminalise online dissent, targeting social media users, journalists, human rights defenders and protesters in particular.
The Special Rapporteur on freedom of opinion and expression has been much more specific in listing the types of legislation most frequently abused to restrict online expression, including criminal defamation and sedition, overbroad national security, terrorism or incitement to terrorism, extremism and, “hate speech” laws , among others. He has called for States to repeal or revise such laws, including to address over-broad definitions of key terms, enhance judicial oversight, and ensure the necessity and proportionality of penalties where they are legitimately imposed.
Disinformation and propaganda
The resolution expresses concern about “the spread of disinformation and propaganda on the Internet”, drawing from the 2017 Joint Declaration of freedom of expression mandates on “fake news.” Importantly, rather than support the types of problematic legislative responses we have seen to disinformation online, it instead calls for increase media literacy and training, education campaigns, and other efforts to promote awareness of this issue.
ARTICLE 19 recalls that the 2017 Joint Declaration specifies, in relation to responses that limit free expression, that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression […] and should be abolished.”
Consensus at a cost
ARTICLE 19 regrets that, even though adopted by consensus, the resolution faced significant opposition. This led to compromises on the resolution – offered to prevent hostile amendments – and also meant that opportunities to add to, strengthen or clarify key elements of the text during negotiations, including those listed above, could not be fully exploited.
Most pressingly, States including Pakistan, Egypt and Russia, threatened to disrupt consensus unless the resolution included a greater focus on measures to counter the use of the Internet by “terrorists and their supporters”, drawing upon ambiguous language from the UN Security Council, detracting from the resolution’s priority of protecting human rights.
We also disappointed that, unlike previous HRC resolutions on the Internet and Human Rights, the present resolution contains no institutional requests for follow-up action. We understand that this decision reflects a desire by numerous States to limit requests burdening the limited time and resources of the HRC, while the HRC Bureau leads discussions on improving HRC efficiency. While this process has potential value, ARTICLE 19 considers that the absence of a call for follow-up action in the resolution will inhibit the HRC’s effectiveness in future efforts to develop human rights standards relating to the Internet, and calling for a report would have been preferable.
Positive agenda for digital rights
ARTICLE 19 welcomes the principled efforts of Sweden, Brazil, Nigeria and Tunisia to advancing protections for freedom of expression online in this resolution, while maintaining consensus against significant pushback from those States most known for violating human rights on the Internet. The resolution sets out an important and positive agenda for digital rights that must be built upon.
ARTICLE 19 encourages States across regions at the HRC that value freedom of expression to continue developing further commitments the protection of human rights online, with the full and effective participation of civil society, as well as making greater use of HRC mechanisms, including special procedures and the Universal Periodic Review, to ensure the implementation of those standards.
[1] Cosponsors at the time of adoption included: Brazil; Nigeria; Sweden; Tunisia; Albania; Argentina; Australia; Austria; Belgium; Bosnia and Herzegovina; Bulgaria; Canada; Chile; Congo; Costa Rica; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Georgia; Germany; Greece; Haiti; Honduras; Hungary; Iceland; Ireland; Italy; Japan; Latvia; Liechtenstein; Lithuania; Luxembourg; Malawi; Maldives; Malta; Mexico; Monaco; Mongolia; Montenegro; Netherlands; Norway; Panama; Paraguay; Peru; Philippines; Poland; Portugal; Qatar; Republic of Moldova; Romania; San Marino; Senegal; Serbia; Slovakia; Slovenia; Spain; Switzerland; Former Yugoslav Republic of Macedonia; Timor-Leste; Ukraine; United Kingdom of Great Britain and Northern Ireland. States can cosponsor the resolution until two weeks after the end of the HRC session, which was 6 July 2018.