On 8 July 2022, the UN Human Rights Council adopted a new resolution on ‘freedom of opinion and expression’ by consensus at its 50th Session. The resolution was led by a core group consisting of Brazil, Canada, Fiji, Namibia, Netherlands and Sweden, and co-sponsored by over 66 countries from all world regions, signalling renewed international commitment to promote and protect the right to freedom of expression. This is the second iteration of the resolution, which was last adopted two years ago in 2020.
As with the previous version, the resolution rightly reaffirms that the right to freedom of expression constitutes one of the essential foundations of democratic societies and that restrictions on the free flow of information undermine the rule of law by preventing efforts to hold public authorities accountable and expose corruption. The resolution also maintains language on Internet shutdowns, role of business enterprises, encryption and anonymity, the safety of journalists and whistleblowers, and other issues addressed in the previous text.
This iteration of the resolution has an overarching theme of digital, media and information literacy, emphasising that these skills are important for the enjoyment of the right to freedom and expression. In this sense, it introduces welcome guidance for governments and other stakeholders to promote these skills. It also introduces important new language on improving connectivity, given that this is a fundamental prerequisite to digital, media and information literacy.
While digital, media and information literacy is an important issue, we express our regret that the resolution focused too heavily on the theme and failed to address many core challenges that threaten the right to freedom of expression worldwide, such as criminal defamation laws and strategic lawsuits against public participation. We call on the core group to ensure that the next iteration of the resolution addresses these issues and fully reflects the realities facing the exercise of the right to freedom of expression worldwide.
Digital, media, and information literacy
We welcome that the resolution includes new guidance on digital, media and information literacy, including acknowledging that these skills are important in supporting the enjoyment of the right to freedom of expression, countering disinformation, and bridging digital divides. The resolution importantly calls on States to acknowledge that digital, media and information literacy includes knowledge for individuals to discover, access, critically evaluate and disseminate information, as well as digital security and risk awareness of surveillance and other violations of the rights to privacy and to freedom of expression. The resolution requests that The Office of the High Commissioner for Human Rights (OHCHR) prepare a panel discussion on the role of digital, media and information literacy in the promotion and enjoyment of the right to freedom of expression.
We also believe that digital, media and information literacy is fundamental for the right to freedom of expression. Where people are equipped with media, digital and information literacy skills, they can critically assess news, information, and all forms of media content, enabling them to participate in the public exchange of news and ideas. We believe these skills are a key response to disinformation, hate speech, unfair content moderation, and poor transparency.
We call on all States to implement the resolution by including digital, media and information literacy in educational programmes and in life-long learning initiatives, ensuring that curriculums explain key international freedom of expression and media freedom standards and provide skills to identify and combat disinformation, hate speech and censorship. We also urge States to ensure that these curriculums are attentive to the challenges faced by groups at risk of discrimination and marginalisation.
Connectivity
We also welcome that the resolution takes a human rights-based approach in underlining that Internet connectivity is ‘critical for the enjoyment of the right to freedom of opinion and expression’. In this vein, it stresses that States need support in expanding Internet infrastructure to ensure accessibility, affordability, and availability.
We fundamentally believe that access to the Internet is essential in enabling the right to freedom of expression and the ability to seek, receive and impart information and ideas of all kinds in the digital age. However, access to the Internet is lacking across the globe, especially in remote or rural areas. We note how existing frameworks for telecommunications in many countries are excessively centred on partnerships between governments and large telecommunications operators, at the expense of small and non-profit operators. These partnerships often perpetuate the digital divide as larger telecommunications operators can lack incentives to invest in infrastructure and ensure universal access, especially for remote or rural communities, where there is little prospect of financial profit.
We urge all States to implement these commitments by adopting policies to improve connectivity and universal access, including policies that create an enabling and inclusive Internet regulatory environment for small and non-profit Internet operators.
Core challenges overlooked
While we welcome that the resolution addresses some new issues, we regret that it does not contend with an array of other core issues that are critically undermining the right to freedom of expression worldwide, such as criminal defamation and strategic lawsuits against public participation. The resolution fails to enhance protection in these areas and thus does a disservice to those voices facing egregious violations of their right to freedom of expression across the globe. We find this to be a missed opportunity, given the importance of freedom of expression resolutions in contributing to the development of international standards.
During negotiations on the resolution, both State delegations and civil society organisations raised the issue of defamation laws and other forms of legal harassment. In many contexts, criminal defamation laws are used to systematically silence journalists and media workers, human rights defenders, and other individuals expressing dissent and political opposition, including through imprisonment. Similarly, these actors are increasingly faced with strategic lawsuits against public participation – also known as ‘SLAPPs’– which are meritless lawsuits initiated by powerful individuals in society to drag their critics through legal processes that drain them financially and psychologically and ultimately silence them. Despite these problems being raised throughout negotiations, they were left unaddressed in the final resolution.
We strongly urge the core group to ensure that future resolutions do not overlook these and other persisting and emerging issues, and that the resolution reflects the realities facing the exercise of the right to freedom of expression worldwide. In this sense, we encourage the core group to consider that the next resolution takes an ‘omnibus’ approach and deals with a wider array of issues, rather than having a specific theme.
Incitement
We are also concerned that the resolution diverts from the treaty language on incitement, particularly in Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR). As with the previous version of the resolution, it expresses concern over speech that ‘incites all forms of violence, hatred, discrimination and hostility, inter alia, racism, xenophobia, negative stereotyping and stigmatisation’.
We share the concerns that discriminatory rhetoric around the world appears to have become increasingly normalised, compounded by increasing limitations on civic space that prevent pluralism and diverse public debate. However, the above language risks manipulating the threshold of incitement under international human rights law to prohibit protected speech. In particular, broader concepts like ‘negative stereotyping’ or ‘stigmatisation’ are not defined in international law and do not necessarily reach the level of incitement. This comes in a context where ambiguous and overbroad laws on incitement are routinely used to repress criticism and dissent. We are concerned that this language could be interpreted to facilitate such trends.
We call on the core group to reformulate this language in future versions of the resolution in order to ensure that references to incitement or other restrictions to the right to freedom of expression are strictly in line with international human rights law.