David Souter
ict Development Associates
[email protected] Introduction
The intersection between the internet and human rights, including freedoms of expression and association, is increasingly important as the internet becomes more universal, and increasingly complex as the internet affects more aspects of society, economy, politics and culture. This report suggests two ways to map this intersection, and raises a number of questions that need to be considered by those concerned with the internet, with rights, and with wider public policy.
The first of these mapping frameworks is based on the location of rights within current debates about internet public policy. The second is based on the relationship between the internet and the framework of rights set out in the Universal Declaration and the International Bill of Human Rights.
Internet public policy, rights and freedom of expression and association
A number of attempts have been made to map debates around internet governance (decision making that concerns the internet itself) and internet public policy (decision making that concerns the interface between the internet and other public policy domains). Many of these, like that of the Working Group on Internet Governance in 2004, locate issues along a spectrum from
Highly internet-centric issues such as critical internet resources, through
Issues which are internet-specific but have public policy implications such as spam and cyber crime, and
Issues of wider public policy which are strongly impacted by the internet, such as intellectual property, to
Broad public policy issues such as development and democratic participation.
While this is useful, the increasing complexity and reach of the internet into public policy make it insufficient for in-depth analysis. Research for the Association for Progressive Communications (APC) and other civil society organisations, presented in Italy in 2010, suggests that more complex mapping is required to place rights issues such as freedom of expression within the broad picture of debates around internet public policy. This more complex mapping focuses on two dimensions, concerned respectively with issues and with institutions and stakeholders.171
Mapping internet issues enables us to identify a number of core themes within current internet debates. Some of these are concerned with technical issues such as internet standards and coordination/administration; some with broad issues of public policy such as economic interchange, development and environmental impact; some more specifically with issues of rights, culture and governance. They can be illustrated conceptually as in Figure 1, each section of which can be broken down into more specific issues if required. The section that is concerned explicitly with rights is located at the bottom of the diagram.
The value of mapping issues in this way is twofold. Firstly, it helps to move beyond a broad discussion of the overall interface between the internet and rights towards a more nuanced discussion of the relationship between the internet and specific rights, such as freedom of expression and association. A lot of current debate is based around the idea that the internet necessarily enhances human rights, or that particular decisions regarding the internet necessarily threaten rights. Looking at individual rights issues and debates more specifically enables us to build a more sophisticated understanding of what is happening and why.
Secondly, it helps to identify links between rights issues and aspects of other public policy domains which have significant rights implications, but which appear in different areas of the map. Examples of these include affordability aspects of “access” and diversity aspects of “culture”.
The rights issues identified in Figure 1 are wide ranging, including freedom of expression and consumer rights, privacy and defamation, intellectual property and child protection. This is not a comprehensive list, and individual rights agencies will have different priorities. They can also drill down in each of these to a deeper level of granularity, and to considering the implications in different national contexts in which rights are more or less guaranteed in law and practice and more or less established as public norms.
The second dimension of this mapping exercise is concerned with institutions and stakeholders. To understand how decisions concerning the internet and rights are taken, and where the pressure points at which rights agencies can exert influence lie, it is necessary to map the decision-making environment that overlays these issues of internet public policy. In practice, that environment includes diverse institutions from both mainstream public policy and internet governance contexts. Decisions or outcomes concerning the extent of freedom of expression, for example, emerge from the interaction between international rights frameworks, national governments, private businesses such as internet service providers which can open or close access to information or expression, citizens who use the internet as a means of expression (and often to bypass legal constraints), and civil society organisations, some of which seek to broaden freedom of expression and some to place boundaries around it.
This is a complex multi-stakeholder environment, but it is possible to overlay a map of the authority of different institutions on the kind of issues mapped in Figure 1 in order to gain clarity about which institutions exert decision-making power, whether globally or in national contexts. Figure 2, for illustrative purposes, suggests the principal areas in which the Internet Corporation for Assigned Names and Numbers (ICANN) influences internet public policy.172
The final aspect of this mapping exercise to consider here is the relationship between internet rights and rights in general. Two issues are important.
The first concerns the relationship between internet rights, human rights (as set out in the Universal Declaration) and other rights which individuals may hold (including, for example, consumer rights and employment rights, which result from legislation that is enacted at national level). There is often confusion between these, while there are also significant areas of overlap and interpretation, which have been changing over time. Article 19 of the Universal Declaration, for example, grants everyone the right “to seek, receive and impart information and ideas through any media and regardless of frontiers.” Does the reference to “any media” imply a right of access to media such as the internet, or merely a right to make use of such media as are available to the individual at the time and place in which s/he lives? Opinion on this is divided and has been changing over time as the internet has grown in reach and in importance.
The second concerns the relationship between internet rights and mainstream human rights advocates and networks. As in other interfaces between information and communications technology (ICT) specialists and those in other public policy fields, there can be a substantial difference of perspectives here:
Mainstream human rights advocates tend to build their analysis of rights issues, threats and opportunities on the international Covenants, on interpretations by UN and other international agencies, and on international and national legal instruments to enable individuals to exercise their rights.
Internet rights advocates, by contrast, often build their analysis of rights on the founding principles and ways of working of the internet, which enable people to extend the exercise of rights by bypassing constraints rather than through legal instruments.
These are significantly different paradigms, and they raise important questions about whether there is at present a consistent understanding of the relationship between internet rights and mainstream human rights amongst those who are concerned with the legal framework for rights and means for their expression. This is especially significant where the second mapping framework discussed in this article is concerned (see below).
It is also important to recognise that these debates are taking place within a multi-stakeholder context. Rights debates are not the preserve of rights activists, but are part of a broader discourse that involves governments, intergovernmental organisations, international non-governmental institutions, businesses, civil society organisations with varying
perspectives, and individual citizens whose rights are under discussion and who have highly varied views about them. The significance which multi-stakeholder participation has achieved in internet governance adds to the complexity of this multi-stakeholder context, as does the exceptional prominence in the internet world of non-governmental international entities such as ICANN and the Internet Engineering Task Force (IETF).