Joy Liddicoat
Association for Progressive Communications (APC)
www.apc.org
Introduction
The modern foundations of international human rights rest on the Universal Declaration of Human Rights (UDHR) and the Charter of the United Nations (UN).2 The UDHR affirmed human rights are universal, inalienable and interconnected. The human rights framework recognises both the right of states to govern and the duty of states to respect, protect and promote human rights. The global transformation of human rights from moral or philosophical imperatives into a framework of rights that are legally recognised between nations continued into the 21st century, but this basic framework has been reaffirmed by UN member states and remains the foundation of human rights today.3 The internet has been used to create new spaces in which human rights can be exercised and new spaces in which rights violations can take place. This report looks at human rights concepts, the internet and accountability mechanisms for internet-related human rights violations.4
The human rights framework
The UDHR is not legally binding but has a powerful moral force among UN member states. Binding standards have been developed, including the International Covenant on Civil and Political Rights (ICCPR)5 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).6 Together with the UDHR, these two standards have become known as the International Bill of Human Rights.7 Other international human rights standards followed, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.8
Accountability and remedies
When the UDHR was being negotiated, litigation was not seen as the appropriate way to seek remedies or accountability between nations (nor was there an international court system). New forums were established, including the Security Council, the Human Rights Committee and, more recently, the Human Rights Council. Accountability to these forums was primarily by way of periodic reporting. Once a state had ratified a treaty (such as the ICCPR) it agreed to periodically report on implementation, but ratification was also permitted with reservations. Some treaties adopted complaint procedures for individual complaints (which are known as optional protocols), but states are not obliged to submit to these. Each treaty has different standards for accountability. For example, states are obliged to implement economic, cultural and social rights as resources allow, through a system known as “progressive realisation”. Civil and political rights, on the other hand, must be implemented immediately and some, such as freedom from torture, can never be suspended or limited, even in emergency situations.
The premise underlying these forms of accountability is that states, as equal members of the international community of nations, will subject their conduct to the scrutiny of other states. In doing so states also agree to abide by recommendations or take into account observations made about matters within their own borders. States therefore agree to be publicly accountable for their human rights performance. This was a major transformation in the international community of states.
In practice, the effectiveness of these accountability mechanisms varies widely. Some treaty body processes9 are seen as very ineffective: the reporting processes are cumbersome, lengthy and time consuming for states and civil society groups alike. Some states simply do not file their periodic reports. For these and other reasons the treaty body processes are currently being reviewed.10 Other mechanisms, such as the Universal Periodic Review, are seen as much more effective.
This variability has implications for civil society groups, which must strategise carefully about the use of different or multiple mechanisms depending on a number of factors, including the issue, and whether the context is national or local. Multiple mechanisms might be used at the same time, over time, or not at all, depending on the particular issues and context.
The human rights framework also has limitations. As a forum of governments the UN is necessarily infused with politics. Agreed human rights standards are, generally, the product of the best possible political consensus. The result is often a minimum standard: the lowest common denominator of agreement. The international human rights system is still evolving, with the UN’s mandate under constant scrutiny, and its utility questioned in the face of the modern horrors of human rights violations. In addition, the framework itself is not static. The UN system is evolving with new processes such as the Universal Periodic Review providing new opportunities for scrutiny and leadership. While changes may be positive, these take time to implement, requiring civil society organisations (CSOs) to develop or enhance capacity to engage and use them effectively while also trying to advance their issues and concerns.
Yet the UN – and the Human Rights Council in particular – remains the central global human rights forum. Opportunities for recourse against states, as ways to hold them accountable for human rights violations, must be considered taking into account both strengths and limitations of the international human rights framework. And today there are more processes for state accountability for human rights violations than have ever existed. These include:
Scrutiny by treaty bodies
Complaints to UN bodies under optional protocols
Engagement with special procedures of the UN (for example, the Special Rapporteurs on Freedom of Opinion and Expression, Freedom of Association and Human Rights Defenders)
State peer review in the Universal Periodic Review process
Formal complaints to regional mechanisms, for example, the European Court of Human Rights, the Inter-American Court of Human Rights or the African Court on Human and People’s Rights
Complaints to or investigations by ombudspersons or national human rights institutions
Litigation (where national constitutions allow for this or where international standards have been incorporated into domestic law).
As human rights violations in relation to the internet increase,11 questions arise about accountability and remedies. The implications for internet-related human rights violations cannot be considered without first looking at the internet-related forums in the UN.
Human rights and the internet at the UN
Despite the centrality of human rights to the creation of the UN, the World Summit on the Information Society (WSIS),12 the WSIS Geneva Declaration of Principles13 and the Internet Governance Forum (IGF),14 discussions about accountability for human rights violations remain limited. Tensions have emerged given the openness of the internet, which has been both a factor in its success and a point of political contention in debates about internet governance.15 Early adopters of the internet and information and communications technologies (ICTs) reached for rights as a way to navigate these tensions by articulating their freedom to use and create online spaces, to assert their rights to communicate and share information, and to resist state or government interference with rights to privacy.16 The simple application of existing human rights standards was the starting point for civil society groups and, building on the work of the People’s Communication Charter, the Association for Progressive Communications (APC) developed the first Internet Rights Charter in 2001-2002 (subsequently updated in 2006).17 In 2010, the Dynamic Coalition on Internet Rights and Principles released a Charter of Internet Rights and Principles and, in 2011, a more condensed set of ten principles.18
But further elaboration and clear explanation of how existing human rights standards apply seemed necessary. New charters and statements of principles have emerged in regional bodies (such as the Council of Europe) and nationally (for example, in Estonia and Finland).19 It is not yet clear if a new “Super Charter” will emerge or if a new model national law will be developed.
The internet-related aspects of freedom of expression and freedom of association have received some scrutiny in UN human rights mechanisms. The 2011 annual report of the Special Rapporteur on Freedom of Opinion and Expression20 was the first time the Human Rights Council had considered a report specifically focused on human rights and the internet. In 2010, the Hum
an Rights Committee began a review of General Comment 34 (a key document which the Committee uses to interpret Article 19 of the ICCPR) and released its preliminary report in May 2011.21 The new general comment includes specific reference to “electronic and internet-based modes of expression”.22 This will strengthen the mechanisms for recourse and reporting internet-related violations of freedom of expression under Article 19 by requiring states to include these in their reports. The final revised comment was released in June 2011 and should be available for use in periodic reporting and other accountability mechanisms by early 2012.
These various initiatives are welcome, but more work needs to be done to ensure the internet is a cross-cutting issue within all treaty bodies and human rights mechanisms. The topic of human rights, the internet and accountability mechanisms remains complex for a variety of reasons, including:
The complexity of the internet ecosystem (for example, no single point of governance and network operation, diverse standard-setting systems, the role of internet intermediaries and platform providers, and so on) and the various connection points of that ecosystem with the human rights ecosystem (or lack of connection points).
While there may be a single international human rights standard (for example, on freedom of expression) there is no single way and no single correct way to give effect to that standard.
The diverse ways that human rights issues arise; for example, from privacy and surveillance, to the ICT production line (conflict minerals, the rights of workers), to content filtering, content blocking and harassment, arrest and detention of online human rights activists.
Human rights violations may involve multiple and intersecting rights across different treaties and affect groups differently (such as women, sexual and gender minorities, people with disabilities, or racial and cultural minorities).
The application of human rights standards to the fast-changing forms of connectivity (mobile is outpacing other forms of connectivity, for instance).23
The nebulous legal environments of many countries, including absence of the rule of law (or ineffective legal systems), lack of legislation and constitutional protections or, conversely, over-regulation and extensive direct or indirect censorship.24
The diverse human rights situations in diverse countries, especially within and between developed and developing countries.
The actual and perceived limitations of human rights remedies where the state violates human rights or where non-state actors can act with impunity.
The frequent need to obtain remedy or recourse quickly and the slow and cumbersome nature of most legal processes.
The cost of litigation and the lack of access to this remedy for many individuals and groups.
The geopolitics and how these play out in various forums.
The multiple and sometimes conflicting mechanisms for remedy within countries (for example, in relation to content censorship, the intersections of defamation law, constitutional protections where these exist, and criminal or civil legislation for different types of material).
What future for accountability mechanisms?
Given these complexities it is perhaps no surprise that those discussing internet rights charters and principles have steered away from creating new accountability mechanisms – none appear to contain new complaints procedures. The question is, can the existing human rights framework provide adequate accountability mechanisms for internet-related human rights violations?
The answer is unclear. A mixed picture emerges from current practice. Some CSOs have been active in the Universal Periodic Review process.25 Regional human rights mechanisms (such as the European Court of Human Rights) are receiving increasing numbers of complaints26 together with strategic interventions in litigation by CSOs.27 But no complaints have been received by the African Special Rapporteur on Freedom of Expression in relation to freedom of expression and the internet.28 There have been few complaints to national human rights institutions, possibly because these have not yet adequately considered how to deal with internet-
related complaints.29 Civil litigation remains a primary way to gain recourse in many countries.30
More research is needed to develop a better global picture of the use of these various mechanisms and monitor change. For example, some mechanisms may be best suited to certain types of complaints and offer different remedies. Capacity building also may be needed to support civil society advocacy and strengthen the mechanisms to ensure judicial and other officers adequately understand internet-related human rights issues.
New avenues for global recourse and accountability mechanisms are emerging. The Special Rapporteur on Freedom of Expression has emphasised the need for effective remedies, including rights of appeal.31 In addition, he noted that the internet has created more avenues for use of traditional remedies including the right of reply, publishing corrections and issuing public apologies.32 In one defamation case, for example, the settlement agreement included the defendant apologising 100 times, every half hour over three days, to more than 4,200 followers of his Twitter account.33
A rights-based approach to the internet and human rights
The rights-based approach, or human rights approach as it is also known, was developed as a practical way to implement human rights standards. The rights-based approach was first articulated in the UN in 2002, when the Office of the UN High Commissioner for Human Rights convened an ad hoc expert committee on biotechnology. The committee noted this was a new and emerging area of human rights, with no specific human rights standards. To overcome this difficulty the committee decided to rely on a “rights-based approach” for its task, indicating that such an approach should:34
Emphasise the participation of individuals in decision making
Introduce accountability for actions and decisions, which can allow individuals to complain about decisions affecting them adversely
Seek non-discrimination of all individuals through the equal application of rights and obligations to all individuals
Empower individuals by allowing them to use rights as a leverage for action and legitimise their voice in decision making
Link decision making at every level to the agreed human rights norms at the international level as set out in the various human rights covenants and treaties.
This approach has been extended into a wide range of areas, particulary those where no specific human rights standards seem to apply. The approach is increasingly being used to critique internet regulations on access to the internet, privacy, filtering35 and the mobile internet.36 The UN Special Representative on Business and Human Rights has also drawn on the rights-based approach to consider liability of transnational corporations for human rights violations. The resulting framework highlights the need for access to effective remedies, both judicial and non-judicial.37
There is scope to use this approach in other areas, for example, with the mandates of various UN forums that focus on the internet. The recent appointment of a Special Rapporteur on Freedom of Association provides an opportunity to explore such an approach taking account of modern human rights movements, the use of the internet and ICTs to mobilise, and the special situation of human rights defenders seeking to improve democratic participation. New forms of accountability may yet emerge, as well as new remedies that relate specifically to the internet.
Conclusion
There are more opportunities at global levels for recourse for human rights violations than ever before. Yet these appear largely underutilised in relation to the internet and human rights. Diverse and complex factors interact to create this situation and it is difficult for CSOs to develop effective strategies. At the same time, new human rights standards and mechanisms are emerging in relation to freedom of expression and freedom of association, creating new opportunities for recourse. Taking a rights-based approach to the internet and human rights may provide a way to negotiate these complex issues, to build broad consensus on the application of human rights standards, and provide gr
eater access to, and measurement of, accountability mechanisms.
Freedom of expression on the internet:
Implications for foreign policy
Ben Wagner
European University Institute, Department of Political and Social Sciences
www.eui.eu
Introduction
Since the birth of the public internet, questions of global internet governance have also been questions of international affairs.38 However, while internet security has historically been heavily politicised at an international level, it is only more recently that the questions of internet expression and free speech have been perceived as a foreign policy issue. The following analysis will provide an overview of the two key foreign policy debates on free expression on the internet, before suggesting paths for the development of future internet foreign policy and what consequences these paths are likely to have for freedom of expression on the internet.
Internet freedom as foreign policy
The “internet freedom debate” has become one of the most important international debates on international freedom of expression and foreign policy.39 One of the most important public statements of such a foreign policy initiative was United States (US) Secretary of State Hillary Clinton’s “Remarks on Internet Freedom”40 made on 21 January 2010. Despite including other countries, the obvious focus of her statement was China and Iran, which are both mentioned more than any other country. Moreover, within this foundational statement on internet freedom as foreign policy, two key aspects stand out: the assumption that ensuring freedom of expression might serve to foment “US friendly revolutions”41 and the highly ambiguous role of the corporate sector in securing free expression.42
Following Clinton’s remarks, several European countries began to develop internet freedom initiatives, which were generally understood to be a response to the suppression of mass public protests in Iran in 2009. Perhaps the best known of these is the Franco-Dutch initiative which was launched in a joint communiqué by Bernard Kouchner and Maxime Verhagen, then French and Dutch foreign ministers, in May 2010. The initiative culminated in a meeting at ministerial level on “The Internet and Freedom of Expression” in July 2010.43 Here too the key aspects of the meeting agenda were the support of the supposed revolutionary activities of “cyber dissidents” and the ambiguous role of the corporate sector. However, the Franco-Dutch initiative includes significantly stronger references to a human rights framework to guarantee freedom of expression, compared to the US State Department’s internet freedom initiative.
Since the Franco-Dutch initiative, however, it appears that the two countries have taken divergent paths in their approach to internet freedom. This can be attributed in significant part to cabinet reshuffles and shifting balances of power within the respective governments. The French foreign ministry has been hit by a turbulent period following the resignation of Bernard Kouchner. In this period the presidential palace increasingly came to dominate internet foreign policy following President Nicolas Sarkozy’s call for a “civilised internet”, with the state acting as a civilising force.44 In the Netherlands, parliamentary elections in 2010 and the resulting cabinet reshuffle has also led to the appointment of a new foreign minister, Uriel Rosenthal. In contrast to France, he recently stated his interest to go beyond existing internet freedom initiatives, suggesting that industry self-regulation is insufficient and that additional governmental regulation is necessary.45
The internet freedom debate has also reached the German foreign ministry. Despite widespread public debates about national internet governance and regulation within Germany, these debates have had a limited impact on German foreign policy outside of Europe until relatively recently. Following this model, the first statement on internet freedom made by the German Foreign Minister Guido Westerwelle in May 2011 draws significantly more on international discourses on internet freedom than national debates about internet governance and regulation.46
Consequently, the challenge facing the German, French, Dutch and US foreign ministries is to create a coherent overall frame for internet governance that considers both national and international debates. It is important to note that the US, Dutch, French and German foreign ministries have all created internal structures that are explicitly tasked with pursuing internet freedom policies which promote freedom of expression internationally. This should in the medium and long term lead to noticeable development of internet foreign policy initiatives. However, as was previously noted, their ability to effect meaningful change on government policy depends heavily on dynamics within the respective ministries and governments.
Equally, there are signs that the internet freedom debate is maturing, both in regard to the development of substantive policy initiatives on internet freedom and a greater coherence between national and international policy. A recent report by the Washington think tank Center for New American Security, entitled “Internet Freedom: A Foreign Policy Imperative in the Digital Age”,47 proposes eight “principles” which should guide internet freedom policies in the US, many of which involve substantive policy initiatives for promoting freedom of expression such as reforming export controls, creating economic incentives for corporations to support freedom of expression, and an attempt to create international norms.
Internet human rights as foreign policy
While the internet freedom debate continues, another strand of the international debate on freedom of expression on the internet is noticeably distinct and could be termed the “human rights-based approach”. This strategy has specifically been pursued by a number of states, particularly Sweden and Brazil, as well as a variety of international organisations and civil society actors. This discourse seeks to situate the debate on freedom of expression on the internet within existing human rights law, looking for ways of applying existing norms and developing “new rights” for the internet.48 This strategy is typically pursued in co-operation with existing international institutions which promote human rights and freedom of expression, including the United Nations (UN).
A recent report by UN Special Rapporteur Frank La Rue entitled “Report on the promotion and protection of the right to freedom of opinion and expression” is primarily devoted to developing “general principles on the right to freedom of opinion and expression and the internet”49 as well as a framework within which internet content can reasonably be restricted. This report was based on an extensive consultation process with governments, civil society, international corporations and experts. Consequently, it represents probably the single most well-developed framework for applying human rights norms to freedom of expression on the internet.
The Swedish foreign ministry has been particularly actively following this strategy at various different levels, most notably through consistent support of the Special Rapporteur.50 Its long-standing support of human rights frameworks on the internet gives the foreign ministry a considerable level of international credibility when it comes to free expression on the internet, as does its ability to organise statements on freedom of expression on the internet representing a broad international coalition at the UN Human Rights Council.51
The pursuit of a human rights-based approach has also led to the development of a wide variety of declarations, principles and charters of rights on the internet. These are typically developed within international organisations or multi-stakeholder coalitions and attempt to develop human rights frameworks which also apply to freedom of expression on the internet.52 The content of these documents is extremely diverse and ranges from an elaboration of basic principles such as the Brazilian Principles for the Governance and Use of the Internet (2009), the Global Network Initiative Principles (2008) or the Council of Europe’s Internet Governance Principles (2011), to more extensive documents which seek to elaborate and apply rights such as the Association for Progressive Communications (APC) Internet Rights Charter (2006)53 or the Charter of Human Rights and Principles for the Internet (2010).
Common to all these doc
uments is their reference to international human rights law, most frequently to the Universal Declaration of Human Rights (1948). More.over, they are typically developed by a wide range of stakeholders from various institutional backgrounds, including civil society, the private sector, and the academic and technical communities. Foreign ministries, while often directly involved in the drafting process, have not typically taken leadership in the drafting of such documents.
One of the most interesting examples of such collaborative efforts is the Charter of Human Rights and Principles for the Internet,54 which was developed by the Internet Rights and Principles Dynamic Coalition of the Internet Governance Forum. To give some idea of the diversity involved in the drafting process, the Steering Committee of the Coalition is composed of academics from Japan, Brazil, the UK and the US, Indian, US and Brazilian civil society representatives, German, US and UK private sector actors, representatives of the Council of Europe and UNESCO, and a Swedish diplomat.
Fundamental to all of these documents is the belief that human rights are a relevant frame for promoting the rights of individuals on the internet. Consequently, this approach stands and falls with the acknowledgement of “internet human rights” within the wider human rights community and international human rights law. It would seem that with the report by La Rue, which was presented to the Human Rights Council, a significant step in this direction has been taken, but it remains to be seen how the report itself is received.
The paths ahead? Internet policy coherence…
While many states are prepared to affirm the importance of human rights and rights to freedom of expression on the internet, as mentioned, relatively few have been actively involved in the process of developing the charters and principles which have proliferated over the last five years. Although these processes do not necessarily have to lead to international treaties like the Council of Europe Cybercrime Convention (2001), they do provide a space for defining and elaborating concepts and principles on freedom of expression on the internet.
Increasingly, foreign ministries have to wrestle with translating initiatives related to freedom of expression into foreign policy. The three key aspects that are persistently mentioned in this regard are (1) a linkage to existing human rights frameworks, (2) the perceived role of the internet in enabling or fuelling revolutions, and (3) the questionable role of the private sector. However, these aspects are developed in very different policy contexts. “Internet freedom strategies” focus more on specific foreign policy goals and specific events which are perceived to be causally linked to freedom of expression, typically protest events and revolutions. In contrast, “internet human rights strategies” focus more on developing and embedding aspects of freedom on the internet into existing human rights frameworks.
In the case of internet freedom-based strategies, overall government internet policy coherence is particularly important. This stems from very different international and national policy strategies on the internet, leading to value conflicts which may be particularly harmful for foreign policy. The tension between internet policies at a national level – WikiLeaks in the US or the HADOPI law in France – and a foreign policy which promotes internet freedom is by no means lost on those addressed by these policies. The challenge here is not just to bring the relevant policy areas together in one document, as was the case in the US International Strategy for Cyberspace,55 but to develop a coherent framework with principles that can be applied across ministries and policy areas.
Here internet human rights strategies are at an advantage, as they already have a clear set of principles, but are dependent on the acknowledgement of “internet rights as human rights”.56 They also profit from a wide base of stakeholders who are involved in the drafting process. Considering the number of charters and principles currently circulating, it remains to be seen whether a coherent overall internet human rights framework can be developed.
Finally, as internet freedom policies mature and internet human rights frameworks develop, there is likely to be an increasing overlap between both internet freedom and human rights-based strategies.
While the divide between states pursuing separate foreign policy strategies on these issues is likely to remain, due to differing strategic interests and foreign policy objectives, there is reason to suggest that there might be space for greater cooperation between states in developing policies which pursue greater freedom of expression on the internet.
Towards a cyber security strategy
for global civil society?
Ron Deibert
The Canada Centre for Global Security Studies and the Citizen Lab, Munk School of Global Affairs, University of Toronto
www.citizenlab.org