UN Human Rights Council report on freedom of expression condemns Internet controls #netfreedom @UN_HRC

UN Human RightsThe 17th session of the United Nations Human Rights Council takes place in Geneva from 30 May – 17 June 2011. In preparation a number of reports have been filed, including one from Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank de la Rue.

The report [pdf] “explores key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds through the Internet”. It covers both content and access, and also examines what “exceptional circumstances under which the dissemination of certain types of information may be restricted”.

The report states:

States restrict, control, manipulate and censor content disseminated via the Internet without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim


The Special Rapporteur is of the view that the arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a “chilling effect”, but also leads to other human rights violations, such as arbitrary detention and torture and other forms of cruel, inhuman or degrading treatment or punishment.

Noting recent cases of imprisonment of bloggers, the report suggests that defamation be decriminalized globally and that only incitements to violence can be legitimately blocked. Additionally

the Special Rapporteur reiterates that the right to freedom of expression includes expression of views and opinions that offend, shock or disturb.

The report criticizes heavy-handed copyright protection schemes while noting that the most recent drafts of the ACTA agreement have dropped the ‘3 strike’ disconnection provisions.

It calls for universal access noting that a BBC global poll in March 2010 “79% of those interviewed
in 26 countries believe that Internet access is a fundamental human right”

The conclusions of the report are below:

Conclusions and recommendations

67. Unlike any other medium, the Internet enables individuals to seek, receive and
impart information and ideas of all kinds instantaneously and inexpensively across
national borders. By vastly expanding the capacity of individuals to enjoy their right
to freedom of opinion and expression, which is an “enabler” of other human rights,
the Internet boosts economic, social and political development, and contributes to the
progress of humankind as a whole. In this regard, the Special Rapporteur encourages
other Special Procedures mandate holders to engage on the issue of the Internet with
respect to their particular mandates.

68. The Special Rapporteur emphasizes that there should be as little restriction as
possible to the flow of information via the Internet, except in few, exceptional, and
limited circumstances prescribed by international human rights law. He also stresses
that the full guarantee of the right to freedom of expression must be the norm, and
any limitation considered as an exception, and that this principle should never be
reversed. Against this backdrop, the Special Rapporteur recommends the steps set out

A. Restriction of content on the Internet

69. The Special Rapporteur is cognizant of the fact that, like all technological
inventions, the Internet can be misused to cause harm to others. As with offline
content, when a restriction is imposed as an exceptional measure on online content, it
must pass a three-part, cumulative test: (1) it must be provided by law, which is clear
and accessible to everyone (principles of predictability and transparency); (2) it must
pursue one of the purposes set out in article 19, paragraph 3, of the International
Covenant on Civil and Political Rights , namely: (i) to protect the rights or reputations
of others; (ii) to protect national security or public order, or public health or morals
(principle of legitimacy); and (3) it must be proven as necessary and the least
restrictive means required to achieve the purported aim (principles of necessity and
proportionality). In addition, any legislation restricting the right to freedom of
expression must be applied by a body which is independent of any political,
commercial, or other unwarranted influences in a manner that is neither arbitrary
nor discriminatory. There should also be adequate safeguards against abuse,
including the possibility of challenge and remedy against its abusive application.

1. Arbitrary blocking or filtering of content on the Internet

70. The Special Rapporteur is deeply concerned by increasingly sophisticated
blocking or filtering mechanisms used by States for censorship. The lack of
transparency surrounding these measures also makes it difficult to ascertain whether
blocking or filtering is really necessary for the purported aims put forward by States.
As such, the Special Rapporteur calls upon States that currently block websites to
provide lists of blocked websites and full details regarding the necessity and
justification for blocking each individual website. An explanation should also be
provided on the affected websites as to why they have been blocked. Any
determination on what content should be blocked must be undertaken by a competent
judicial authority or a body which is independent of any political, commercial, or
other unwarranted influences.

71. With regard to child pornography, the Special Rapporteur notes that it is one
clear exception where blocking measures are justified, provided that the national law
is sufficiently precise and there are sufficient safeguards against abuse or misuse to
prevent any “mission creep”, including oversight and review by an independent and
impartial tribunal or regulatory body. However, the Special Rapporteur calls upon
States to focus their efforts on prosecuting those responsible for the production and
dissemination of child pornography, rather than on blocking measures alone.

2. Criminalization of legitimate expression

72. The Special Rapporteur remains concerned that legitimate online expression is
being criminalized in contravention of States’ international human rights obligations,
whether it is through the application of existing criminal laws to online expression, or
through the creation of new laws specifically designed to criminalize expression on the
Internet. Such laws are often justified as being necessary to protect individuals’
reputation, national security or to counter terrorism. However, in practice, they are
frequently used to censor content that the Government and other powerful entities do
not like or agree with.

73. The Special Rapporteur reiterates the call to all States to decriminalize
defamation. Additionally, he underscores that protection of national security or
countering terrorism cannot be used to justify restricting the right to expression
unless it can be demonstrated that: (a) the expression is intended to incite imminent
violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate
connection between the expression and the likelihood or occurrence of such violence.

3. Imposition of intermediary liability

74. Intermediaries play a fundamental role in enabling Internet users to enjoy their
right to freedom of expression and access to information. Given their unprecedented
influence over how and what is circulated on the Internet, States have increasingly
sought to exert control over them and to hold them legally liable for failing to prevent
access to content deemed to be illegal.

75. The Special Rapporteur emphasizes that censorship measures should never be
delegated to private entities, and that intermediaries should not be held liable for
refusing to take action that infringes individuals’ human rights. Any requests
submitted to intermediaries to prevent access to certain content, or to disclose private
information for strictly limited purposes such as administration of criminal justice,
should be done through an order issued by a court or a competent body which is
independent of any political, commercial or other unwarranted influences.

76. In addition, while States are the primary duty-bearers of human rights, the
Special Rapporteur underscores that corporations also have a responsibility to respect
human rights, which means that they should act with due diligence to avoid infringing
the rights of individuals. The Special Rapporteur thus recommends intermediaries to:
only implement restrictions to these rights after judicial intervention; be transparent
to the user involved about measures taken, and, where applicable, to the wider public;
provide, if possible, forewarning to users before the implementation of restrictive
measures; and minimize the impact of restrictions strictly to the content involved.
Finally, there must be effective remedies for affected users, including the possibility of
appeal through the procedures provided by the intermediary and by a competent
judicial authority.

77. The Special Rapporteur commends the work undertaken by organizations and
individuals to reveal the worldwide status of online impediments to the right to
freedom of expression. He encourages intermediaries in particular to disclose details
regarding content removal requests and accessibility of websites. Additionally, he
recommends corporations to establish clear and unambiguous terms of service in line
with international human rights norms and principles and to continuously review the
impact of their services and technologies on the right to freedom of expression of their
users, as well as on the potential pitfalls involved when they are misused. The Special
Rapporteur believes that such transparency will help promote greater accountability
and respect for human rights.

4. Disconnecting users from Internet access, including on the basis of intellectual
property rights law

78. While blocking and filtering measures deny users access to specific content on
the Internet, States have also taken measures to cut off access to the Internet entirely.
The Special Rapporteur considers cutting off users from Internet access, regardless of
the justification provided, including on the grounds of violating intellectual property
rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of
the International Covenant on Civil and Political Rights.

79. The Special Rapporteur calls upon all States to ensure that Internet access is
maintained at all times, including during times of political unrest. In particular, the
Special Rapporteur urges States to repeal or amend existing intellectual copyright
laws which permit users to be disconnected from Internet access, and to refrain from
adopting such laws.

5. Cyber-attacks

80. The Special Rapporteur is deeply concerned that websites of human rights
organizations, critical bloggers, and other individuals or organizations that
disseminate information that is embarrassing to the State or the powerful have
increasingly become targets of cyber-attacks.

81. When a cyber-attack can be attributed to the State, it clearly constitutes, inter
alia, a violation of its obligation to respect the right to freedom of opinion and
expression. Although determining the origin of cyber-attacks and the identity of the
perpetrator is often technically difficult, it should be noted that States have an
obligation to protect individuals against interference by third parties that undermines
the enjoyment of the right to freedom of opinion and expression. This positive
obligation to protect entails that States must take appropriate and effective measures
to investigate actions taken by third parties, hold the persons responsible to account,
and adopt measures to prevent such recurrence in the future.

6. Inadequate protection of the right to privacy and data protection

82. The Special Rapporteur is concerned that, while users can enjoy relative
anonymity on the Internet, States and private actors have access to technology to
monitor and collect information about individuals’ communications and activities on
the Internet. Such practices can constitute a violation of Internet users’ right to
privacy, and undermine people’s confidence and security on the Internet, thus
impeding the free flow of information and ideas online.

83. The Special Rapporteur underscores the obligation of States to adopt effective
privacy and data protection laws in accordance with article 17 of the International
Covenant on Civil and Political Rights and the Human Rights Committee’s general
comment No. 16. This includes laws that clearly guarantee the right of all individuals
to ascertain in an intelligible form whether, and if so what, personal data is stored in
automatic data files, and for what purposes, and which public authorities or private
individuals or bodies control or may control their files.

84. He also calls upon States to ensure that individuals can express themselves
anonymously online and to refrain from adopting real-name registration systems.
Under certain exceptional situations where States may limit the right to privacy for
the purposes of administration of criminal justice or prevention of crime, the Special
Rapporteur underscores that such measures must be in compliance with the
international human rights framework, with adequate safeguards against abuse. This
includes ensuring that any measure to limit the right to privacy is taken on the basis of
a specific decision by a State authority expressly empowered by law to do so, and must
respect the principles of necessity and proportionality.

B. Access to the Internet and the necessary infrastructure

85. Given that the Internet has become an indispensable tool for realizing a range
of human rights, combating inequality, and accelerating development and human
progress, ensuring universal access to the Internet should be a priority for all States.
Each State should thus develop a concrete and effective policy, in consultation with
individuals from all sections of society, including the private sector and relevant
Government ministries, to make the Internet widely available, accessible and
affordable to all segments of population.

86. At the international level, the Special Rapporteur reiterates his call on States,
in particular developed States, to honour their commitment, expressed inter alia in the
Millennium Development Goals, to facilitate technology transfer to developing States,
and to integrate effective programmes to facilitate universal Internet access in their
development and assistance policies.

87. Where the infrastructure for Internet access is present, the Special Rapporteur
encourages States to support initiatives to ensure that online information can be
accessed in a meaningful way by all sectors of the population, including persons with
disabilities and persons belonging to linguistic minorities.

88. States should include Internet literacy skills in school curricula, and support
similar learning modules outside of schools. In addition to basic skills training,
modules should clarify the benefits of accessing information online, and of responsibly
contributing information. Training can also help individuals learn how to protect
themselves against harmful content, and explain the potential consequences of
revealing private information on the Internet