UN Human Rights Council Confirms that Human Rights Apply to the Internet

Dr. Matthias C. Kettemann, LL.M. (Harvard), is a teaching and research fellow at the Institute of International Law and International Relations of the University of Graz, Austria. He blogs at http://internationallawandtheinternet.blogspot.com.

Was it a “victory for the Internet“, as Carl Bildt, foreign minister of Sweden, called it in a New York Times op-ed? Or, rather, a victory for all Internet users and those two thirds of the world population that do not yet have access to the Internet?

Most likely, it was a bit of both: On 5 July 2012, the UN Human Rights Council (HRC) adopted by consensus a key resolution on promotion, protection and enjoyment of human rights on the Internet (UN Doc. A/HRC/20/L.13). Presented by Sweden, the Resolution enjoyed broad international backing from more than 70 HRC member countries and non-members from all regional groups, including China, Brazil, Nigeria, Ukraine, Tunisia, Turkey, the United States and the United Kingdom.

Centrally, the Resolution affirms that “the same rights that people have offline must also be protected online” and should thus put to rest the tedious debate about whether we need ‘new’ human rights for the Internet age, motivated chiefly by states not wishing to ensure the ‘old’ human rights in an online environment.

Although the Resolution’s approach is sound, I will take issue with a number of points, identify remaining problems and discuss priorities for the international political process, including chiefly the need to prioritize international discussions on how international law protects human rights online.

Para. 1: The Commitment to Human Rights Online

In its first operative paragraph the Human Rights Council affirms “that the same rights that people have offline must also be protected online”.  This is what the Resolution boils down to. Offline human rights apply online and states have a duty to protect them. More generally, the have a duty to respect, protect and implement them, as they do with regard to all other human rights.

This basic tenet for the information society is sound. Human rights are the loadstar for Internet policy-making. There is no need to reinvent human rights. Rather, they have to be applied to Internet-related cases in light of online challenges.

The Resolution names one human right that has a particularly important role on the Internet: freedom of expression. Indeed, the Internet has become, in Special Rapporteur Frank La Rue’s turn in his seminal 2011 report to the Council, a “key means” through which freedom of expression can be exercised (UN Doc. A/HRC/17/27, para. 20). The right to freedom of expression is not only  a human rights in and of itself but also enables the enjoyment of other human rights, including the right to education and the right to take part in cultural life and the freedom of assembly.

After affirming that offline human rights must be protected online, the Council specifically refers to the importance of the freedom of expression and cites the language of Article 19 of the Universal Declaration of Human Rights. The Article’s language is based on technological neutrality – vide “through any media” – and the recognition of the importance of entering into universal processes of seeking and imparting information and ideas – vide “regardless of frontiers”. It thus seems to have anticipated developments in information and communication technologies (ICTs) and the growing internationalization of content flows.

The Resolution also references Article 19 of the International Covenant on Civil and Political Rights which is more detailed in its wording and – here it gets difficult – contains restrictions which are prone to be misused by states seeking to exercise control over online expression. Article 19, para. 3, ICCPR allows for certain restrictions of the right which have to be “provided by law and […] necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”

No one doubts that illegal content has to be effectively fought and that it has to be primarily states, in cooperation with other stakeholders, and sensibly self-regulated Internet Service Providers, search engine providers and social networking providers who have to lead the fight.  Indeed, states are obliged under international law to prohibit:

• images of sexual exploitation of children (to protect the rights of children);
• advocacy of national, racial or religious hatred amounting to incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life);
• direct and public incitement to commit genocide (to protect the rights of affected communities); and
• incitement to terrorism (see, for more detail, UN Doc. A/66/290, paras. 20-36).

Effectively fighting against illegal content, however, must not be used by states as a fig leaf for widespread censorship. This is a lamentable lacuna in the resolution and states were quick to pick up on it in the process leading up to it adoption.

Rather, states are obliged to respect the rights enshrined in the Covenant and the UDHR and foresee, in their national legislation, only for those limitations which are legitimate under human rights law. Restrictions may only be provided by a clear law that is accessible to all, must be aim to ensure of the legitimate purposes (as contained in Article 19, para. 3)  and be necessary for that protection and proven to be the least restrictive means required to achieve the purported aim. In its 2011 General Comment No. 34 on Article 19, the Human Rights Committee overseeing the Covenant underscored that states “must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph that has caused it to restrict freedom of expression” (UN Doc. CCPR/C/GC/34, para. 36).

Illegal content should thus be dealt with by authorities in line with their international obligations. Other content may be harmful, offensive, objectionable, or undesirable – but should not be target of state censorship. It is precisely these ideas that need protection. Ideas that in the words of the European Court of Human Rights in Handyside v. UK “shock, offend and disturb” a society or parts of it.

A Global and Open Internet as a Facilitator of Development (para. 2)

In para. 2, the Human Rights Councils recognizes the both “global and open nature of the Internet” as an important force in ensuring development. That the Internet, and ICTs more generally, are drivers of development has already been previously confirmed by the General Assembly. In its resolution on ICTs for development (UN Doc. A/RES/66/184), however, the General Assembly manages to not include a single reference to “human rights” in over seven pages. At UN level, the Human Rights Council thus establishes an important link. However, the globality and openness of the Internet is not only a means to an end (development), but also has intrinsic value.

The casual recognition of the “global and open nature of the Internet” is important, as well, because of the current lack of formal legal protection that the Internet’s openness enjoys in international law. Though references abound in Internet-related documents, it is probably the Council of Europe’s Declaration by the Committee of Ministers on Internet Governance principles of 21 September 2011 (CoE IGPs) that most authoritatively (and convincingly) delineates the connection between globality, openness, and other architectural principles of the Internet and human rights.

The “global […] nature of the Internet” is premised upon both its universality and universal access (more on the latter in the next section). Experience counsels that any global common good, and the Internet can be treated as such, needs to be protected by global Internet (Governance) policies. These must ensure the unimpeded flow of transboundary Internet traffic (principle 5 of the CoE IGPs). While global policies for Internet Governance are necessary, the day-to-day management can and should remain decentralized (principle 7).

A commitment to an ‘open’ Internet includes a commitment to open standards and to an open network (principles 8 and 9 of the CoE IGPs). Open standards and interoperability of the Internet, including its end-to-end-nature, are key architecture principles of the Internet that underlie the Human Rights Council’s commitment to its openness. The commitment to an open Internet in the sense of an open network is more clearly linked to human rights, as users should have, pursuant to principle 8, “the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice.” The link to human rights is clear: “Traffic management measures which have an impact on the enjoyment of fundamental rights and freedoms […] must meet the requirements of international law […].”

Facilitating Access and International Cooperation to Develop ICTs (para. 3)

In para. 3 the Human Rights Council calls upon states to promote and facilitate access to the Internet and international cooperation with the goal to develop both media and information and communications facilities globally.

Ensuring access is indeed one of the key elements of human rights protection online. Neither access nor international cooperation are only means to the end of developing media and information and communications facilities (‘technologies’, as in ICTs, would have corresponded to the more common usage). They are both also values in themselves.

There are two dimensions of access which have to be simultaneously pursued: physical access to the Internet, i.e. an Internet connection, and access to online content, that is access to unfiltered information online. The latter is protected by human rights law, especially the right to freedom of expression, that limits state censorship.  The former is premised upon bridging the digital divide, the gap between those who have access and those who have not, but is intrinsically linked to all other human rights as a precondition for their exercise.

Increasing physical access and ensuring a higher level of Internet connection worldwide is therefore not only a duty of each individual state but also of the international community as a whole.  This is particularly important since there exist, in fact, not only a digital divide between developed and developing states, but rather multiple digital divides also within society, between the rich and poor, the traditionally and differently abled, the young and the elderly, and a gender gap.

International cooperation is not only essential in order to ensure access, but is also key to the security, stability, robustness and resilience of the Internet. National and international multi-stakeholder co-operation is essential for ensuring that Internet Governance policies are legitimate and human rights-sensitive. Unfortunately, the Resolution is silent on the importance of cooperation, and the role that multi-stakeholderism must play in international Internet Governance processes.

Housekeeping (paras. 4 and 5)

In paras. 4 and 5, the Human Rights Council enages in intellectual housekeeping. First, it encourages its special procedures to take the commitment to ensuring human rights online “into account within their existing mandates, as applicable”.

Indeed, the Resolution’s commitment to ensuring human rights online is ‘applicable’, albeit to varying degrees, to almost all of the 36 thematic and 12 country mandates: be it the Special Rapporteur on the right to education (Internet access as a precondition of using online learning resources), the Special Rapporteur on the rights to freedom of peaceful assembly and of association (including in its ambit social activism on the Internet) or the the Special Rapporteur on the situation of human rights defenders (who use the Internet intensively to publicize human rights violations).

But also country mandate-holders will need to focus (more) on the role of Internet censorship as a tool of oppression in ‘their’ countries. This applies especially to the newly appointed Special Rapporteur on the situation of human rights in Belarus and the Special Rapporteurs for Iran (where intensive filtering takes place), Myanmar (where the government has engaged in partial Internet shutdowns in the past) and Syria (where the Internet is used as a tool against the opposition).

In the Resolution’s final paragraph (para.5), the Human Rights Council confirms that it will remain seized of the matter, and focus on both the overall issue of promotion, protection and enabling the enjoyment of human rights, including the right to freedom of expression, on the Internet, but also of the impact of the Internet on development and for exercising human rights.

Conclusion and Perspectives

In his op-ed in the New York Times, Carl Bildt concludes

The governments of the Human Rights Council now for the first time have confirmed that freedom of expression applies fully to the Internet. […] The challenge now is to put these words into action to make sure that people all over the world can use and utilize the power of connectivity without having to fear for their safety. This work is far from over.

I agree. We need to put these words into actions. But, I would argue, we also need to put some more flesh on these words. What exactly does it mean for states that human rights that apply offline also apply online? That they have to respect, protect and implement them, and – as a precondition – increase Internet access in both dimensions: access to infrastructure and content. Access in its dual dimensions is indeed the right that undergirds all human self-actualization online and the realization of all other human rights.

The Human Rights Council failed to reiterate the importance of the international limits to state limits on Internet freedom of expression (and, mutatis mutandis, other human rights). Online as offline, states can only make recourse to the traditional exceptions provided by international human rights law. These exceptions must be narrowly tailored, specific and meet the traditional three-part-test: they need to be (1) provided by law, (2) targeted at achieving a legitimate goal, and (3) necessary for achieving that goal and proportionate.

What needs to follow now is not an exercise in finding new rights, but rather in establishing how existing human rights are becoming relevant for the whole gamut of human activity online. Civil society organizations, such as the Civil Society Internet Governance Caucus, have started to highlight the special challenges of applying pre-Internet rights to an Internet age and collected and have put together lists of statements and declarations on human rights on the Internet, including as the most nuanced the Charter on Internet Rights and Principles.

The HRC Resolution also commits the international community to a global and open Internet as a facilitator of development and highlights the importance of access and international cooperation. This leads me to my final point. Going on step further, we need to ensure that offline international law also applies online. What the Human Rights Council failed to do (but where we can take some inspiration from the Council of Europe’s list of Internet Governance principles) is  to clarify what human rights-based duties of states exist vis-à-vis the Internet: arguably to ensure its stability, functionality and integrity and, for that purpose, engage in cooperation with other states and develop national Internet policies that infringe neither upon the human rights of its citizens nor  violate emerging international legal obligations.

This is not the end of the debate, neither is it the beginning. Rather, it is the end of the beginning (where the extent of human rights online was doubted by some states). Thanks to the Human Rights Council, we now have a clear yardstick against which future national and international policy-making bearing on Internet and human rights can be measured.

At one conference or another I’ve heard a story about a human rights activist from Africa who was asked at the World Summit on the Information Society whether it wasn’t more important to ensure that his fellow citizens had bread – instead of Internet access.

His reply?

“If we don’t have Internet access, we can’t tell the world who is stealing our bread”.

This story serves to humanize the deep connection between online and offline human rights; a connection that the Human Rights Council Resolution of 5 July 2012 on human rights on the Internet has finally confirmed.