Global Information Society Watch 2011

Human rights, internet rights and freedom of expression

  The second mapping exercise which is proposed here also concerns the relationship between internet rights, human rights and rights in general. Particular attention has been paid in discussion about the interface between the internet and rights to ways in which the internet has enhanced opportunities for people to exercise freedom of expression, obtain access to information (freedom of information) and organise collectively (freedom of association). How do these relate to the broader rights regime?

  The international human rights framework as we know it was established by the Universal Declaration of Human Rights (UDHR) in 1948 and subsequently entered into international and national law in the 1960s/1970s through the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. It also includes other international instruments such as the UN Convention on the Rights of the Child.

  Discussions of the UDHR often present it as a list of individual rights which have cumulative force, the most prominent of which tend to be those concerned with freedom of conscience (Article 18), freedom of expression (Article 19) and freedom of association (Article 20). Some of that discussion appears to give those articles primacy over other rights within the Declaration. In practice, however, the Declaration recognises that the exercise of rights can be conflictual – that there are occasions on which the exercise of two different rights, or of the same right by different people, can be incompatible – and therefore involves the need for balance. Article 29 addresses this in two ways, by asserting that the rights set out in the Declaration are “subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

  Article 29 is obviously open to interpretation, and the relationship between it and Article 19’s guarantee of freedom of expression is central to many contests over censorship and other constraints on freedom of expression/publication. These arise generally, in relation to different interpretations of the imprecise terms “morality, public order and general welfare in a democratic society”, but also specifically, in relation to constraints on the scope of freedom of expression or publication which are implied in other articles of the Declaration. These arise in:

  Article 3, which asserts the right to life, liberty and security (the root of constraints against incitement to violence against the person, hate speech, etc.)

  Article 7, which guarantees protection against incitement to discrimination

  Article 11, which guarantees legal protection against “arbitrary interference with … privacy [and] correspondence” and against “attacks upon … honour and reputation”

  Article 27, which asserts a right to intellectual property (“protection of the moral and material interests resulting from any scientific, literary or artistic production”) and, arguably

  Article 10, which guarantees the presumption of innocence (often interpreted as imposing constraints on the reporting of criminal arrests and trials).

  These articles represent limits to the scope of freedom of expression as declared in Article 19. In practice, all societies have imposed constraints on freedom of expression, for a variety of reasons ranging from political censorship and protection of social or religious norms to protection against incitement to racial hatred and protection of individual rights of privacy. Some restrictions on publication have high levels of public support, particularly where it is perceived to conflict with privacy (e.g. health records, credit card information and other personal details) or with children’s rights. While no articles so clearly affect freedom of conscience or association, many governments have interpreted “morality, public order and general welfare” as enabling them to restrict the latter.

  Debates concerning what, if any, boundaries should be placed around freedom of expression and association were current long before the Universal Declaration, let alone the internet, and this is not the place to rehearse them further. What is significant here, however, is that the internet has greatly extended the ability and means to exercise freedom of expression and association, changed the ways in which they are being exercised, and thereby altered the balance which prevailed in the pre.internet era between Articles 19, 20 and other rights. This is why the meaning of freedom of expression is now central to discussion of international and national rights regimes.

  There are four main ways in which the internet has impacted here which are important from a public policy perspective. Internet specialists need to understand the dynamics of these from that perspective in order to address the implications of internet rights effectively.

  Firstly, the internet – particularly the web and social networking – has changed the nature of publication. Rather than being largely restricted to a relatively small number of official agencies and businesses, the opportunity to publish has become effectively universal, making constraints on publication (in its widest sense) more difficult or impossible for governments to enforce. This is particularly important in the expression of opinion, where it is analogous to the early impact of the printing press 600 years ago.

  Secondly, it has made it much easier for those who wish to publish or access material which is illegal in a specific jurisdiction to bypass legal constraints. The most prominent area of debate here has concerned pornography, particularly child pornography, but there are wider public policy issues around questions such as restrictions on religious content in some jurisdictions, the publication of incitement to racial hatred, the marketing of pharmaceuticals and weaponry, the sharing of identifying information and the publication of websites and online content which are designed to extort money.

  Thirdly, it has made it much easier to publish material anonymously. On the one hand, this has encouraged transparency, freedom of expression and association, especially where these have been constrained. On the other hand, it has disrupted the balance between freedom of expression and the rights concerning privacy and defamation which are included in Article 11 of the UDHR.

  Fourthly, it has made the protection of intellectual property rights much more difficult, disrupting the constraint of freedom of expression where these are concerned which was set out in Article 27 of the Universal Declaration, as well as the elaborations of that balance in international intellectual property law.

  The internet’s ability to change the relationship between different types of rights, generally in favour of freedom of expression and association, is substantial and significant. For most within the internet community, this has been a matter for celebration. Some activists and internet users have also seen it as an opportunity to ignore or overturn legal constraints which they oppose, particularly where intellectual property is concerned. Other rights organisations argue that a legal framework is the only way in which the exercise of rights can be effectively enforced. Governments and others have sought to find ways of adjusting legal frameworks to accommodate new internet realities, with varied success from their and from citizens’ points of view.

  The question of whether the internet changes the rights and freedoms set out in the Universal Declaration is not new but is important. The argument here is that it changes the ability to exercise those rights, and that this has changed the meaning of rights to stakeholders in ways that were not envisaged when the Declaration was agreed. That makes the relationship between the internet and the international rights regime a significant public policy issue, which governance institutions and other stakeholders must address. Those who are concerned about rights and internet rights need to understand and analyse what is happening, whether they see it as an opportunity to extend the exercise of rights, sustain the existing rights regime, or move towards a new understanding of rights and the exercise of rights for a post-internet era. Mapping the impact of the internet on rights and on their exercise is an important step in that direction.

 
Introduction

  Alan Finlay