Beyond the Mantra, Towards the Granular: The Special Rapporteur on Freedom of Expression’s Report on the Private Sector in the Digital Age

I. Introduction

“To what extent should the private sector be responsible for the promotion and protection of freedom of opinion and expression?” This is the question at the heart of the latest report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Professor David Kaye (“Special Rapporteur”), which he presented at the 32nd session of the Human Rights Council, which ended last week. The current report does not purport to offer comprehensive answers, but instead maps out the myriad of ways in which the private sector impacts upon freedom of expression in the digital age, the “regulatory ecosystem on the Internet”, and the legal and policy issues that deserve particular attention. Surprisingly, UN human rights bodies only began really grappling with the challenges of the Internet five years ago. In this period, there have been reports of the Special Rapporteur and his predecessor on encryption and anonymity tools, mass surveillance, and the Internet as well as a series of Human Rights Council and General Assembly resolutions on human rights on the Internet and the right to privacy in the digital age. Such texts have made the statement that “the same rights that people have offline must also be protected online, in particular freedom of expression” into a mantra. Against this backdrop, the current report is pioneering for several reasons.

II. Breaking new ground

First and foremost, the report is comprehensive in its mapping of the digital environment and related freedom of expression challenges. As the delegation of the Netherlands recognised, it is the “first full overview of all private actors in ICT whose actions impact freedom of expression and opinion”. The report disaggregates the “vast” and “overlapping” range of roles played by private sector actors in “organising, accessing, populating and regulating the Internet” and distinguishes certain pressing legal and policy issues, concerning content regulation, surveillance and digital security, transparency and remedies. In doing so, it identifies the array of private actors including telecommunications and Internet service providers, web hosting services, hardware firms, search engines and social media platforms, media companies, companies producing surveillance technologies and multi-stakeholder processes. It also, importantly, draws on examples from many countries around the world, including Sweden, Russia, Uruguay, Brazil, China, India, South Africa, Tanzania, the UK and the US.  

Second, as the first stage in a major multi-year project, the report should lead to a specific set of normative standards on how the private sector and states should protect freedom of expression in the digital age. Such guidance will draw from international human rights sources, particularly Article 19 of the ICCPR and the Guiding Principles on Business and Human Rights, and also build on innovative civil society initiatives, such as the Global Network Initiative’s Principles on Freedom of Expression and Privacy and the Manila Principles of Intermediary Liability. Given the sheer power of the private sector, the demands imposed upon ICT companies by governments and the uncertainty over applicable standards, the Special Rapporteur’s agenda for a “granular” approach to private sector and state responsibilities in the digital age is properly ambitious and must be welcomed. The current report concludes with some core principles, including recommendations that private actors integrate commitments to freedom of expression in their policies and processes, implement transparent human rights assessment procedures and be evaluated on the steps they take to protect freedom of expression.

Third, the report is characterised by its inquisitive and participatory approach, which should enhance its credibility and serve as a positive model to other mandate-holders. That it poses questions – such as, “How do States facilitate or demand content removal, censorship and unnecessary or disproportionate restrictions …?” and “How do private enterprises respond to these demands …?” – but does not fully respond to them at this stage shows its reflective quality. The consultation process leading up to the report, which included submissions from some 15 states and 15 civil society organisations, and in-person meetings with civil society and private actors, will be continued and expanded to include exchanges with technical experts as well as site visits of companies.

III. Responses at the Human Rights Council

The reception of the report at the Human Rights Council was fascinating to observe. It was broadly welcomed by states and supported by NGOs at numerous informal meetings and at side-events. During the interactive dialogue with the Special Rapporteur (which was appropriately “clustered” with the Working Group on Transnational Corporations and Other Business Enterprises “Working Group”) some 26 Council member states, 20 observer states, two intergovernmental organisations and 10 NGOs responded to the report with questions and observations. For example, the Austrian delegate asked about how to help individuals better understand how their data is used and also about best practices for algorithm transparency. The Indian representative reflected on his government’s programme for transforming India into “a digitally empowered society and knowledge economy” and the Indian Supreme Court’s decision declaring unconstitutional the criminalization of “grossly offensive” content online. Rather disappointingly, the United States – as a state whose representatives often repeat the mantra and where the world’s most powerful ICT actors, such as Google, Facebook and Twitter are headquartered – declined to engage with the report’s substance. Instead, it chose to focus its statement on its “[deep concern] about the global decline of freedom of expression” as seen in Egypt, China, Thailand and Turkey. Predictably, the Russian Federation claimed that the Special Rapporteur had stepped beyond his mandate and had “difficulty in not taking up … the now fashionable topic of the Internet”, a subject which was suggested to be the sole domain of the recently established Special Rapporteur on the right to privacy.

In a compelling response, the Special Rapporteur laid bare the essential connection between freedom of expression and the Internet that justified the focus of the report and broader project. “The Internet is the fundamental tool for expression, access to information, journalism, civil society organizing and the formation of opinion today,” he stated. Drawing on the example of LGBT persons’ reliance on the Internet to seek, receive and impart information, particularly in repressive states, he argued “their privacy, security and freedom of expression are intertwined”. This point, about the intensified interdependence of LGBT persons’ rights in the online world, seemed particularly apt – both because of the Russian Federation’s own dire record on both LGBT rights and Internet freedom, and because a proposed resolution establishing an Independent Expert on sexual orientation and gender identity was adopted at the end of the session, albeit with amendments.

IV. Future prospects

As a step towards the generation of normative standards on the responsibilities of the private sector in the digital space, this report is commendable and deserves to be taken seriously by all whom it addresses. It has already resonated with and found support amongst influential NGOs, such as ARTICLE 19 and Access Now, who will naturally rely upon it in their future advocacy. It will also be interesting to observe the extent to which the project impacts upon other international experts on freedom of expression, but especially other UN human rights bodies, particularly those addressing issues concerning freedom of expression (such as the Human Rights Committee), the private sector (such as the Working Group) and the Internet (such as the Special Rapporteur on the right to privacy). The project may indeed catalyse deeper considerations of the ICT sector and a greater familiarity with the lexicon of the digital age within the UN human rights system.

Yet the ultimate success of the project clearly depends on the attitudes and responses of private entities and governments. The project faces several noteworthy, though not insurmountable, issues which will need to be addressed. First, further consultations with ICT companies, even under the Chatham House rule, may well “hit a wall” in terms of how much those private actors are willing to reveal about their internal policies and processes. Second, given the range of roles played by a multiplicity of private entities and multi-stakeholder initiatives, the normative standards that will eventually be elaborated will need to reflect a principled but differentiated approach. Third, those standards will require implementation by the private sector and states, even though formally speaking they will bind neither. The project’s power thus rests on its ability to effectively persuade states that the standards are derived from their international legal obligations and to convince both private actors and states of the moral argument for their responsibilities in the digital space. The project’s unfurling over a number of years thus appears as strategically useful as it is necessary, giving time to the Special Rapporteur, his team and supporting civil society organisations to undertake this valuable mission.