Earlier this month, the 47 member states of the United Nations Human Rights Council passed a landmark Resolution (A/HRC/20/L.13) to include the “promotion, protection, and enjoyment of human rights on the Internet.” The Resolution, which was presented by Sweden, was backed by more than 70 countries in all, both members and non-members of the HRC.
In the New York Times, Swedish Foreign Minister Carl Bildt called the Resolution a “victory for the Internet”, while US Secretary of State Clinton praised it as a “ welcome addition in the fight for the promotion and protection of human rights and fundamental freedoms online, in particular the freedom of expression.”
The Resolution builds on the work of UN Special Rapporteur Frank LaRue who, after a year of consultations with civil society groups, released a report on the promotion and protection of freedom of expression on the Internet. In his report, LaRue touched upon a variety of threats to free expression online, including the enforcement of "real name" systems; the use of national security or counterterrorism measures to restrict free speech; the overbroad use of defamation laws; and the widespread use of technological surveillance. LaRue concluded by calling upon states to take measures to ensure "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."
At the time, EFF praised the Special Rapporteur's report, and continues to be pleased with the work he is doing. We therefore see this Resolution—which affirms that “the same rights that people have offline must also be protected online”—as a step in the right direction. Despite that, states are increasingly failing to comply fully with their international human rights obligations, including the adoption of necessary measures to make human rights effective.
As Dr. Matthias Kettermann points out in the European Journal of International Law, however, the Resolution does not rule out the possibility of countries abusing human rights online. Specifically, the Resolution references Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which—as Kettermann explains—“allows for certain restrictions of the right [to free expression]” when provided by law, for “(a) respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals.”
Referring to Article 19 of the ICCPR, CCPR General Comment No. 10 notes that, "[W]hen a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself." Such restrictions may only be imposed by law and must be justified as being "necessary" for one of the purposes stated in Paragraph 3, subparagraph (b).
Despite such protections, however, a number of the 47 member states of the HRC censor the Internet and citizens’ right to free expression under such pretexts. For example, Qatar censors a variety of websites, including those critical of the royal family. The senior manager of the country’s largest ISP, Qtel, once explained this as a “desire to maintain ethical standards and protect the culture of the society.” India made headlines earlier this year for its designs to increase censorship on social networks. Turkey censors—both online and off—criticism of the country's founder, Kamal Atatürk, as well as insults to "Turkishness." And member states China, Cuba, Kyrgyzstan, Saudi Arabia and Thailand—among others—have all come under fire for heavy-handed censorship of websites.
Furthermore, a number of member states have used intellectual property as a justification for the installation of technical censorship mechanisms. In several countries, regulation that would cut an individual off from the Internet indefinitely—generally known as "three strikes laws"—has been proposed or enacted. Laws that prevent an individual from using the Internet entirely are surely a violation of human rights, and the Special Rapporteur agrees; in his report, he urged states to repeal or amend existing intellectual property laws that would permit disconnection of a user from the Internet, and to refrain from adopting such laws.
Lastly, the Resolution makes no mention of the ubiquity of online surveillance technologies, which are increasingly being used by governments to track down dissidents and stifle dissent, threatening to make meaningless the legal guarantees of privacy and free expression. From its widespread use in pre-revolutionary Tunisia and Egypt (both non-member signatory states) to its illegal use in the United States, online surveillance poses a huge threat to freedom of expression and must be considered as such.
All in all, however, UNHRC’s Resolution on Internet freedom is a positive step toward ensuring that human rights apply online, but it is only a first step, and it will not alone prevent countries determined to censor the Internet from doing so. The next step, of course, is putting action behind those words, and for that, the onus is on individual states.
