Global InformatIonSocIety Watch 2011Internet rIghts and democratIsatIonFocus on freedom of expression and association online AssociAtion for Progressive communicAtions (APc) And HumAnist i nstitute for cooPerAtion witH develoPing countries (Hivos)
This edition of Global Information Society Watch is dedicated to the people of the Arab revolutions whose courage in the face of violence and repression reminded the world that people working together for change have the power to claim the rights they are entitled to.
Global Information Society Watch 2011Steering committee Cover illustrationAnriette Esterhuysen (APC) Matías BervejilloLoe Schout (Hivos) ProofreadingCoordinating committee Stephanie Biscomb, Valerie Dee and Lori NordstromKaren Banks (APC)Monique Doppert (Hivos) Financial partnersKaren Higgs (APC) Humanist Institute for Cooperation with Developing Countries (Hivos)Marjan Besuijen (Hivos) Swedish International Development Cooperation Agency (Sida)Joy Liddicoat (APC)Pablo Accuosto (APC) The views expressed in this publication are those of the individualValeria Betancourt (APC) authors and not necessarily those of APC or HivosProject coordinatorKaren Banks Printed in Goa, IndiaEditor by Dog Ears Books & PrintingAlan Finlay Global Information Society WatchAssistant editor Published by APC and HivosLori Nordstrom South Africa 2011Publication productionKaren Higgs, Analía Lavin and Flavia Fascendini Creative Commons Attribution 3.0 Licence <creativecommons.org/licenses/by-nc-nd/3.0/> Some rights reserved.Graphic designmonocromo ISSN: email@example.com APC-201111-CIPP-R-EN-PDF-0105Phone: +598 2 400 1685 ISBN: 978-92-95096-14-1APC and Hivos would like to thank the SwedishInternational Cooperation Agency (Sida) for its supportfor Global Information Society Watch 2011.
Table of contentsPreface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Internet charters and principlesUnited Nations Special Rapporteur onthe Promotion and Protection of the Right Internet charters and principles:to Freedom of Opinion and Expression - frank la rue Trends and insights . . . . . . . . . . . . . . . . . . . . . 49 Global Partners and Associates - dixie hawtinIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Electronic Frontier Foundation - jillian c. york Mapping rightsThematic reports Mapping internet rights and freedomConceptualising accountability of expression . . . . . . . . . . . . . . . . . . . . . . . . . . . 55and recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ict Development Associates - david souterAssociation for Progressive Communications -joy liddicoat Country reportsFreedom of expression on the internet:Implications for foreign policy . . . . . . . . . . . . . 18 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 63European University Institute - ben wagner Alan Finlay Argentina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Towards a cyber security strategy Nodo TAUfor global civil society? . . . . . . . . . . . . . . . . . . 21The Canada Centre for Global Security Studies Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70and the Citizen Lab, Munk School of Global Affairs, EngageMedia Collective Inc.University of Toronto - ron deibert Bangladesh . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 VOICEInternet intermediaries:The new cyber police? . . . . . . . . . . . . . . . . . . . 25 Benin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 CréACTION BENINEuropean Digital Rights - joe mcnamee Bolivia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81E-revolutions and cyber crackdowns: REDES FoundationUser-generated content and social Bosnia and Herzegovina . . . . . . . . . . . . . . . . . 85networking in protests in MENA oneworld-platform for southeast europe (owpsee)and beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Justus Liebig University Giessen - alex comninos Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 GPoPAI-USPThe internet and social movements Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92in North Africa . . . . . . . . . . . . . . . . . . . . . . . . . . 36 BlueLink FoundationEgyptian Blog for Human Rights - ramy raoof Cameroon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 PROTEGE QVWorkers’ rights and the internet . . . . . . . . . . . 40LaborNet - steve zeltzer China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 DanweiSexuality and women’s rights . . . . . . . . . . . . . 44 Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103Association for Progressive Communications - Colnodojac sm kee and jan moolman Congo, Republic of . . . . . . . . . . . . . . . . . . . . . 107 AZUR Développement Costa Rica . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Sulá Batsú
PrefaceUnlike any other medium, the internet enables offer, amongst other things, an analysis of howindividuals to seek, receive and impart informa- human rights are framed in the context of thetion and ideas of all kinds instantaneously and internet, the progressive use of criminal lawinexpensively across national borders . Unlike to intimidate or censor the use of the inter-any other technological development, it has net, the difficult role of intermediaries facingcreated an interactive form of communication, increasing pressure to control content, andwhich not only allows you to send information the importance of the internet to workers inin one direction, but also to send information the support of global rights in the workplace .in many directions and receive an immediate Some call for a change of perspective, as in theresponse . The internet vastly increases the report on cyber security, where the necessitycapacity of individuals to enjoy their right to of civil society developing a security advocacyfreedom of opinion and expression, including strategy for the internet is argued . Without it,access to information, which facilitates the ex- the levels of systems and controls, whetherercise of other human rights, such as the right emanating from government or military super-to education and research, the right to freedom powers, threaten to overwhelm what has overof association and assembly, and the right to de- the years become the vanguard of freedom ofvelopment and to protect the environment . The expression and offered new forms of free asso-internet boosts economic, social and political ciation between people across the globe .development, and contributes to the progressof humankind as a whole; but it is especially an Many of these issues are pulled sharply into fo-instrument that strengthens democracy by fa- cus at the country level in the country reportscilitating citizen participation and transparency . that follow the thematic considerations . Each ofThe internet is a “plaza pública” – a public place these country reports takes a particular “story”where we can all participate . or event that illustrates the role of the internet in social rights and civil resistance – whether posi-The past year has been a difficult time globally: tive or negative, or both . Amongst other things,whether the aftermath of the tsunami in Japan, they document torture in Indonesia, candlelightunsteady global markets, post-election riots in vigils in South Korea, internet activism againstNigeria, civil war in Libya and a military clamp- forgetting human rights atrocities in Peru, anddown in Syria . But there have been positive, and the rights of prisoners accessing the internetequally challenging, developments in countries in Argentina . While the function and role of thesuch as Tunisia and Egypt . Throughout the year internet in society remains debated, and neces-people around the world have increasingly used sarily so, in many contexts these stories showthe internet to build support for human rights that to limit it unfairly will have a harmful im-and social movements . This edition of Global pact on the rights of people . These stories showInformation Society Watch (GISWatch) offers that the internet has become pivotal in actionstimely commentary on the future of the internet aimed at the protection of human rights .as an open and shared platform that everyonehas the right to access – to access content and GISWatch makes a valuable contribution toto have access to connectivity and infrastructure . dialogue on freedom of expression, freedom of association and democratisation and seeks toThrough the lens of freedom of expression, inspire and support collaborative approaches . nfreedom of association and democracy, the Frank La Ruethematic reports included here go to the heart united nations special rapporteur on theof the debates that will shape the future of the promotion and protection of the right tointernet and its impact on human rights . They freedom of opinion and expression Preface / 9
IntroductionJillian C. York rights (such as the necessity to keep public order) .Electronic Frontier Foundation Similarly, the Charter also frames the freedom of as-eff .org sembly or association online within the space of the UDHR, including in its definition the right to “form, join, meet or visit the website or network of an as-Early visionaries imagined the internet as a border- sembly, group, or association for any reason” andless world where the rule of law and the norms of noting that “access to assemblies and associationsthe so-called physical world did not apply . Free ex- using ICTs [information and communications tech-pression and free association were envisioned as nologies] must not be blocked or filtered .” The twoentitlements, a feature of cyberspace rather than aforementioned definitions comprehensively ad-rights to be asserted . dress online rights as defined within the framework These early conceptions quickly gave way to the of the UDHR .realisation that, just as the internet was embraced But while the freedoms of expression and asso-by people, so would it be controlled: by corpora- ciation are guaranteed by Articles 19 and 20 of thetions, by policy makers, by governments, the latter UDHR, and by the individual constitutions of manyof which began asserting control over the internet of the world’s nation-states, their application onlineearly on, enacting borders to cyberspace and pre- has proved troublesome for even the most demo-venting the free flow of information, not unlike the cratic of governments .physical borders that prevent free movement be- The internet is unique, both structurally andtween nations . practically . A medium unlike any other, it enables in- For more than a decade, academics and activists dividuals to cross borders in an instant, to seek andhave dissected and debated the various challenges share information rapidly and at little cost . But justto a free and open net . But the use of digital tools as it provides a unique means of communication, soin the uprisings in the Middle East and North Af- too does it present unique challenges for regulatorsrica, as well as the subsequent restrictions placed who, so far, have relied upon outmoded legislationon them by governments, have inspired new pub- to regulate the digital space .lic discourse on the subject, bringing to light the For example, defamation laws in Turkey haveimportance of and highlighting new challenges to led to an environment where any individual or or-internet freedom . ganisation can all too easily petition a judge to In Tunisia and in Egypt, the ability to organise block an allegedly defamatory website, thereby si-and share information online proved vital to many lencing what may very well be legitimate criticism .in organising the revolutions that eventually led Similarly, in Tunisia, not long after the country’sto the downfall of both countries’ regimes . There, decade-long censorship of the internet ended, aand in Syria, Viet Nam, Iran, the Occupied Pal- group of judges successfully petitioned the court toestinian Territories, and beyond, the videos and order the Tunisian Internet Agency to block accessimages disseminated from protests have demon- to a large swath of pornographic websites in the in-strated precisely why online freedom must be a terest of “morality” .policy imperative . The desire to restrict access to “adult content” The Charter of Human Rights and Principles exemplifies the challenges of enforcing existingfor the Internet,1 developed by the Internet Rights age restrictions on online content . Where a maga-and Principles Coalition, defines online freedom zine can be restricted for sale to minors or hiddenof expression to include the freedom to protest, in opaque packaging, and a television programmefreedom from censorship, the right to information, or film can come with age-appropriate warnings,the freedom of the media, and the freedom from online content is not so easily restricted . Instead,hate speech . Framed by Article 19 of the Universal the most oft-used method of restriction, technicalDeclaration of Human Rights (UDHR), the Charter filtering, cannot differentiate between the adultrecognises certain legal restrictions placed on such and child user and therefore blocks access to con- tent from all . In any scenario, filtering tends to be1 internetrightsandprinciples .org/node/367 overbroad and expensive, but is also fallible, and 10 / Global Information Society Watch
physical and technical infrastructure required to The challenges to an open internet are decid-connect to the internet can also be used by gov- edly complex . And with the fragmentation of theernments as a means of restricting the free flow internet aided not only by authoritarian regimes,of information and limiting individuals’ ability to but also democratically elected governments, ISPs,associate and organise . While in many cases, low user-generated content platforms, and other cor-internet penetration is a sign of economic or infra- porate entities, the solutions to creating an openstructural challenges, it can also be an intentional internet are equally, if not more, complex than thestrategy by governments attempting to restrict citi- problems .zens from accessing information or developing civil Censorship does not exist in a vacuum; for everysociety . Though this strategy is best exemplified by step closer to freedom, there is another step back,Cuba and North Korea – where the majority of citi- as governments learn from one another and imple-zens are barred entirely from accessing the internet ment new “solutions” for limiting free expression .– dozens of countries with the capability to do so At the top level lies the simplest yet most dif-have slowed or stifled the infrastructural develop- ficult solution: convincing governments of the valuement necessary to expand access . of a free internet . The ideals of an open internet are These various forms of control have led to what often in direct conflict with the interests of policyscholars have referred to as the “Balkanisation” of makers, whether in debating network neutrality inthe internet, whereby national boundaries are ap- the US or in the current proposal to erect a China-plied to the internet through these various means style firewall in Iran .of control . In 2010, the OpenNet Initiative estimated Solutions to the latter problem abound, butthat more than half a billion (or about 32%) of the often act as mere bandages, offering a fallible so-world’s internet users experience some form of na- lution to a vast and ever-developing problem . Thetional-level content restriction online . That number US and other governments have poured money intois undoubtedly increasing: in recent months, vari- circumvention technology, which can be effectiveous governments across the globe have taken new in getting around internet censorship, but simplysteps to restrict access to content . Egypt, which furthers the cat-and-mouse game between govern-had blocked websites minimally and only sporadi- ments and tool developers, the former blocking thecally, took an enormous step backward when it shut latter as the developers attempt to keep up . Meshdown the internet for a week during the protests . networking has, of late, also become a strong con-Libya, which prior to 2011 filtered only selectively, tender for solving the dual problems of censorshiphas barred access for most of its population since and access, with several nascent projects receivingFebruary . Iran has recently announced plans to attention – and funding – from government entities .withdraw from the global internet, creating essen- Trade restrictions have been proposed to curbtially an intranet inside the country . And even in internet censorship; notably, in 2010, Google pro-states where access remains low – such as in Ethio- posed the idea of stricter trade governance as apia, where internet penetration hovers around 0 .5% means to prevent or lessen restrictions placed by– governments fearing the democratising power of governments on internet access . At the same time,the internet are preemptively putting additional re- the Global Network Initiative, a multi-stakeholderstrictions in place . As of 2011, more than 45 states organisation comprised of academics, activists,have placed restrictions on online content . corporations and NGOs, is working with companies When a country restricts the free flow of infor- to guide them toward better policies around privacymation online, it impacts not only the citizens of and free expression online .that country, but reduces the value of the internet But while attainment of these ideals may atfor all of its users and stakeholders . Just as Chi- times seem nearly impossible, the costs of notna’s extensive filtering of online content prevents fighting for them are too great . It is therefore imper-Chinese users from reaching the BBC, the BBC is ative that we – the users, the citizens – continue toprevented from doing business in China; and just as push for better choices at the hands of governmentsChinese users cannot access Facebook, Facebook and corporations, and keep fighting for the equallyusers from across the world cannot interact with the necessary freedoms of expression and associationChinese populace . in this most unique of spaces . n 12 / Global Information Society Watch
Conceptualising accountability and recourseJoy Liddicoat Rights .6 Other international human rights standardsAssociation for Progressive Communications (APC) followed, including the Convention against Torturewww .apc .org and Other Cruel, Inhuman or Degrading Treatment or Punishment .7Introduction Accountability and remediesThe modern foundations of international human When the UDHR was being negotiated, litigationrights rest on the Universal Declaration of Human was not seen as the appropriate way to seek rem-Rights (UDHR) and the Charter of the United Na- edies or accountability between nations (nor wastions (UN) .1 The UDHR affirmed human rights are there an international court system) . New forumsuniversal, inalienable and interconnected . The hu- were established, including the Security Council,man rights framework recognises both the right of the Human Rights Committee and, more recently,states to govern and the duty of states to respect, the Human Rights Council . Accountability to theseprotect and promote human rights . The global forums was primarily by way of periodic report-transformation of human rights from moral or philo- ing . Once a state had ratified a treaty (such as thesophical imperatives into a framework of rights that ICCPR) it agreed to periodically report on imple-are legally recognised between nations continued mentation, but ratification was also permitted withinto the 21st century, but this basic framework has reservations . Some treaties adopted complaint pro-been reaffirmed by UN member states and remains cedures for individual complaints (which are knownthe foundation of human rights today .2 The inter- as optional protocols), but states are not obliged tonet has been used to create new spaces in which submit to these . Each treaty has different standardshuman rights can be exercised and new spaces in for accountability . For example, states are obligedwhich rights violations can take place . This report to implement economic, cultural and social rightslooks at human rights concepts, the internet and as resources allow, through a system known asaccountability mechanisms for internet-related hu- “progressive realisation” . Civil and political rights,man rights violations .3 on the other hand, must be implemented immedi- ately and some, such as freedom from torture, canThe human rights framework never be suspended or limited, even in emergencyThe UDHR is not legally binding but has a power- situations .ful moral force among UN member states . Binding The premise underlying these forms of ac-standards have been developed, including the In- countability is that states, as equal members ofternational Covenant on Civil and Political Rights the international community of nations, will sub-(ICCPR)4 and the International Covenant on Eco- ject their conduct to the scrutiny of other states .nomic, Social and Cultural Rights (ICESCR) .5 In doing so states also agree to abide by recom-Together with the UDHR, these two standards have mendations or take into account observationsbecome known as the International Bill of Human made about matters within their own borders . States therefore agree to be publicly accountable1 The United Nations officially came into existence after ratification for their human rights performance . This was a of the Charter on 24 October 1945 .2 The 1993 Vienna World Conference on Human Rights reaffirmed major transformation in the international commu- that human rights are indivisible and interrelated and that no nity of states . right is superior to another . UN General Assembly (1993) Vienna Declaration and Programme of Action, Article 5 . www .unhchr .ch/ huridocda/huridoca .nsf/(symbol)/a .conf .157 .23 .en3 “Accountability mechanisms” range from international 6 Office of the High Commissioner for Human Rights (1996) Fact mechanisms, to litigation, to community action and lawful forms of Sheet No. 2 (Rev. 1) The International Bill of Human Rights, United protest . Nations, Geneva . www .ohchr .org/Documents/Publications/4 The ICCPR includes rights related to the right to vote, freedom of FactSheet2Rev .1en .pdf expression, freedom of association, and the rights to a fair trial and 7 Others include the International Convention on the Elimination due process . of All Forms of Racial Discrimination (ICERD), the Convention on5 The ICESCR includes rights related to the right to health, the right the Elimination of All Forms of Discrimination Against Women to education, the right to an adequate standard of living, and the (CEDAW), the Convention on the Rights of the Child (UNCROC), and right to social security . the Convention on the Rights of Persons with Disabilities (CRPD) . Thematic reports / 15
In practice, the effectiveness of these account- • Engagement with special procedures of the UNability mechanisms varies widely . Some treaty (for example, the Special Rapporteurs on Free-body processes8 are seen as very ineffective: the dom of Opinion and Expression, Freedom ofreporting processes are cumbersome, lengthy and Association and Human Rights Defenders)time consuming for states and civil society groups • State peer review in the Universal Periodic Re-alike . Some states simply do not file their periodic view processreports . For these and other reasons the treaty bodyprocesses are currently being reviewed .9 Other • Formal complaints to regional mechanisms, formechanisms, such as the Universal Periodic Review, example, the European Court of Human Rights,are seen as much more effective . the Inter-American Court of Human Rights or the This variability has implications for civil society African Court on Human and People’s Rightsgroups, which must strategise carefully about the • Complaints to or investigations by ombudsper-use of different or multiple mechanisms depend- sons or national human rights institutionsing on a number of factors, including the issue, and • Litigation (where national constitutions allowwhether the context is national or local . Multiple for this or where international standards havemechanisms might be used at the same time, over been incorporated into domestic law) .time, or not at all, depending on the particular is-sues and context . As human rights violations in relation to the internet The human rights framework also has limitations . increase,10 questions arise about accountability andAs a forum of governments the UN is necessarily in- remedies . The implications for internet-related hu-fused with politics . Agreed human rights standards are, man rights violations cannot be considered withoutgenerally, the product of the best possible political first looking at the internet-related forums in the UN .consensus . The result is often a minimum standard:the lowest common denominator of agreement . The Human rights and the internet at the UNinternational human rights system is still evolving, Despite the centrality of human rights to the crea-with the UN’s mandate under constant scrutiny, tion of the UN, the World Summit on the Informationand its utility questioned in the face of the mod- Society (WSIS),11 the WSIS Geneva Declaration ofern horrors of human rights violations . In addition, Principles12 and the Internet Governance Forumthe framework itself is not static . The UN system is (IGF),13 discussions about accountability for hu-evolving with new processes such as the Universal man rights violations remain limited . Tensions havePeriodic Review providing new opportunities for emerged given the openness of the internet, whichscrutiny and leadership . While changes may be posi- has been both a factor in its success and a point oftive, these take time to implement, requiring civil political contention in debates about internet govern-society organisations (CSOs) to develop or enhance ance .14 Early adopters of the internet and informationcapacity to engage and use them effectively while and communications technologies (ICTs) reachedalso trying to advance their issues and concerns . for rights as a way to navigate these tensions by Yet the UN – and the Human Rights Council in articulating their freedom to use and create onlineparticular – remains the central global human rights spaces, to assert their rights to communicate andforum . Opportunities for recourse against states, share information, and to resist state or governmentas ways to hold them accountable for human rights interference with rights to privacy .15 The simple ap-violations, must be considered taking into account plication of existing human rights standards was theboth strengths and limitations of the internationalhuman rights framework . And today there are more 10 La Rue, F . (2011) Report of the Special Rapporteur on theprocesses for state accountability for human rights promotion and protection of the right to freedom of opinion andviolations than have ever existed . These include: expression, 26 April, A/HRC/17/27, p . 8-15 . 11 World Summit on the Information Society, United Nations• Scrutiny by treaty bodies and International Telecommunication Union (2005) WSIS Outcome Documents . www .itu .int/wsis/documents/doc_multi .• Complaints to UN bodies under optional protocols asp?lang=en&id=2316|0 12 Article 19 of the UDHR is cited in paragraph 4 of the Geneva Declaration of Principles (2003) . 13 www .intgovforum .org8 Treaty body processes refers to the various mechanisms for 14 Cavalli, O . (2010) Openness: Protecting Internet Freedoms, in oversight of implementation of treaties; for example, the Drake, W . J . (ed) Internet Governance: Creating Opportunities for Committee for the Elimination of All Forms of Discrimination All, United Nations, New York, p . 15 . Against Women oversees the CEDAW convention and the Human 15 One of the more famous examples was John Perry Barlow’s Rights Committee oversees the ICCPR . Declaration of the Independence of Cyberspace (February 1996) .9 www2 .ohchr .org/english/bodies/HRTD/index .htm projects .eff .org/~barlow/Declaration-Final .html 16 / Global Information Society Watch
starting point for civil society groups and, building on • The complexity of the internet ecosystem (forthe work of the People’s Communication Charter, the example, no single point of governance andAssociation for Progressive Communications (APC) network operation, diverse standard-settingdeveloped the first Internet Rights Charter in 2001- systems, the role of internet intermediaries and2002 (subsequently updated in 2006) .16 In 2010, the platform providers, and so on) and the variousDynamic Coalition on Internet Rights and Principles connection points of that ecosystem with thereleased a Charter of Internet Rights and Principles human rights ecosystem (or lack of connectionand, in 2011, a more condensed set of ten principles .17 points) . But further elaboration and clear explanation of • While there may be a single international hu-how existing human rights standards apply seemed man rights standard (for example, on freedomnecessary . New charters and statements of princi- of expression) there is no single way and no sin-ples have emerged in regional bodies (such as the gle correct way to give effect to that standard .Council of Europe) and nationally (for example, inEstonia and Finland) .18 It is not yet clear if a new • The diverse ways that human rights issues arise;“Super Charter” will emerge or if a new model na- for example, from privacy and surveillance, totional law will be developed . the ICT production line (conflict minerals, the The internet-related aspects of freedom of ex- rights of workers), to content filtering, contentpression and freedom of association have received blocking and harassment, arrest and detentionsome scrutiny in UN human rights mechanisms . of online human rights activists .The 2011 annual report of the Special Rapporteur • Human rights violations may involve multipleon Freedom of Opinion and Expression19 was the and intersecting rights across different treatiesfirst time the Human Rights Council had considered and affect groups differently (such as women,a report specifically focused on human rights and sexual and gender minorities, people with dis-the internet . In 2010, the Human Rights Committee abilities, or racial and cultural minorities) .began a review of General Comment 34 (a key docu- • The application of human rights standards toment which the Committee uses to interpret Article the fast-changing forms of connectivity (mo-19 of the ICCPR) and released its preliminary report bile is outpacing other forms of connectivity, forin May 2011 .20 The new general comment includes instance) .22specific reference to “electronic and internet-basedmodes of expression” .21 This will strengthen the • The nebulous legal environments of many coun-mechanisms for recourse and reporting internet- tries, including absence of the rule of law (orrelated violations of freedom of expression under ineffective legal systems), lack of legislationArticle 19 by requiring states to include these in and constitutional protections or, conversely,their reports . The final revised comment was re- over-regulation and extensive direct or indirectleased in June 2011 and should be available for use censorship .23in periodic reporting and other accountability • The diverse human rights situations in diversemechanisms by early 2012 . countries, especially within and between devel- These various initiatives are welcome, but more oped and developing countries .work needs to be done to ensure the internet is across-cutting issue within all treaty bodies and hu- • The actual and perceived limitations of humanman rights mechanisms . The topic of human rights, rights remedies where the state violates humanthe internet and accountability mechanisms re- rights or where non-state actors can act withmains complex for a variety of reasons, including: impunity . • The frequent need to obtain remedy or recourse quickly and the slow and cumbersome nature of16 www .apc .org/en/node/5677 most legal processes .17 www .internetrightsandprinciples .org18 In relation to Estonia, see Woodard, C . (2003) Estonia, where being wired is a human right, Christian Science Monitor, 1 July . In relation 22 See, for example, Southwood, R . (2011) Policy and regulatory to Finland, see Ministry of Transport and Communications (2009) issues in the mobile internet, APC . www .apc .org/en/node/12433; 732/2009, Decree of the Ministry of Transport and Communications Horner, L . (2011) A human rights approach to the mobile internet, on the minimum rate of a functional Internet access as a universal APC . www .apc .org/en/node/12431; and Comninos, A . (2011) service . www .finlex .fi/en/laki/kaannokset/2009/en20090732 Twitter revolutions and cyber-crackdowns: User-generated content19 La Rue (2011) op . cit . and social networking in the Arab Spring and beyond, APC . www .20 Human Rights Committee (2011) Draft General Comment No. 34 apc .org/en/node/12432 (upon completion of the first reading by the Human Rights Council, 23 For example, in relation to Turkey, see Johnson, G . (2011) 3 May, CCPR/C/GC/34/CRP .6 . Censorship Threatens Turkey’s Accession to EU, unpublished21 Ibid ., para 11 . research paper . Thematic reports / 17
• The cost of litigation and the lack of access to judicial and other officers adequately understand this remedy for many individuals and groups . internet-related human rights issues .• The geopolitics and how these play out in vari- New avenues for global recourse and account- ous forums . ability mechanisms are emerging . The Special Rapporteur on Freedom of Expression has empha-• The multiple and sometimes conflicting mecha- sised the need for effective remedies, including nisms for remedy within countries (for example, in rights of appeal .30 In addition, he noted that the relation to content censorship, the intersections internet has created more avenues for use of tra- of defamation law, constitutional protections ditional remedies including the right of reply, where these exist, and criminal or civil legislation publishing corrections and issuing public apolo- for different types of material) . gies .31 In one defamation case, for example, the settlement agreement included the defendantWhat future for accountability mechanisms? apologising 100 times, every half hour over threeGiven these complexities it is perhaps no surprise days, to more than 4,200 followers of his Twitterthat those discussing internet rights charters and account .32principles have steered away from creating newaccountability mechanisms – none appear to con- A rights-based approach to the internettain new complaints procedures . The question is, and human rightscan the existing human rights framework provide The rights-based approach, or human rights ap-adequate accountability mechanisms for internet- proach as it is also known, was developed as arelated human rights violations? practical way to implement human rights standards . The answer is unclear . A mixed picture emerges The rights-based approach was first articulated infrom current practice . Some CSOs have been active the UN in 2002, when the Office of the UN High Com-in the Universal Periodic Review process .24 Regional missioner for Human Rights convened an ad hochuman rights mechanisms (such as the European expert committee on biotechnology . The committeeCourt of Human Rights) are receiving increasing noted this was a new and emerging area of humannumbers of complaints25 together with strategic rights, with no specific human rights standards . Tointerventions in litigation by CSOs .26 But no com- overcome this difficulty the committee decided toplaints have been received by the African Special rely on a “rights-based approach” for its task, indi-Rapporteur on Freedom of Expression in relation cating that such an approach should:33to freedom of expression and the internet .27 Therehave been few complaints to national human rights • Emphasise the participation of individuals ininstitutions, possibly because these have not yet decision makingadequately considered how to deal with internet- • Introduce accountability for actions and deci-related complaints .28 Civil litigation remains a pri- sions, which can allow individuals to complainmary way to gain recourse in many countries .29 about decisions affecting them adversely More research is needed to develop a better • Seek non-discrimination of all individualsglobal picture of the use of these various mecha- through the equal application of rights and obli-nisms and monitor change . For example, some gations to all individualsmechanisms may be best suited to certain types ofcomplaints and offer different remedies . Capacity • Empower individuals by allowing them to usebuilding also may be needed to support civil society rights as a leverage for action and legitimiseadvocacy and strengthen the mechanisms to ensure their voice in decision making • Link decision making at every level to the agreed24 Universal Periodic Review (UPR), Thailand: Joint CSO Submission human rights norms at the international level as to the Office of the High Commissioner for Human Rights (March 2010), endorsed in whole or in part by 92 Thai organisations . set out in the various human rights covenants25 For a summary of recent European Court of Human Rights cases in and treaties . relation to the internet and human rights see the European Court of Human Rights “New Technologies Fact Sheet” (May 2011) .26 For example, the Electronic Frontier Foundation and Privacy International . 30 La Rue (2011) op . cit ., para 47 .27 Advocate Pansy Tsakula, personal communication to APC, 2011 . 31 Ibid ., para 27 .28 See, for example, New Zealand Human Rights Commission (2010) 32 www .thejournal .ie/malaysian-man-apologises-via-100-tweets-in- Roundtable on Human Rights and the Internet. www .hrc .co .nz defamation-settlement-147842-Jun201129 Kelly, S . and Cook, S . (eds) (2011) Freedom on the Net 2011: A 33 High Commissioner for Human Rights (2002) Report of the global assessment of the internet and digital media, Freedom High Commissioner’s Expert Group on Human Rights and House, Washington . Biotechnology: Conclusions, OHCHR, Geneva, para 21 . 18 / Global Information Society Watch
This approach has been extended into a wide range Conclusionof areas, particulary those where no specific human There are more opportunities at global levels for re-rights standards seem to apply . The approach is course for human rights violations than ever before .increasingly being used to critique internet regula- Yet these appear largely underutilised in relationtions on access to the internet, privacy, filtering34 to the internet and human rights . Diverse and com-and the mobile internet .35 The UN Special Repre- plex factors interact to create this situation and itsentative on Business and Human Rights has also is difficult for CSOs to develop effective strategies .drawn on the rights-based approach to consider lia- At the same time, new human rights standards andbility of transnational corporations for human rights mechanisms are emerging in relation to freedomviolations . The resulting framework highlights the of expression and freedom of association, creatingneed for access to effective remedies, both judicial new opportunities for recourse . Taking a rights-and non-judicial .36 based approach to the internet and human rights There is scope to use this approach in other may provide a way to negotiate these complex is-areas, for example, with the mandates of various sues, to build broad consensus on the applicationUN forums that focus on the internet . The recent of human rights standards, and provide greaterappointment of a Special Rapporteur on Freedom access to, and measurement of, accountabilityof Association provides an opportunity to explore mechanisms . nsuch an approach taking account of modern hu-man rights movements, the use of the internet andICTs to mobilise, and the special situation of humanrights defenders seeking to improve democraticparticipation . New forms of accountability may yetemerge, as well as new remedies that relate specifi-cally to the internet .34 Access (2011) To Regulate or Not to Regulate, Is That the Question? A Roadmap to Smart Regulation of the Internet, discussion paper released ahead of the OECD High-Level Meeting on the Internet Economy on 28-29 June 2011 . www .accessnow . org/policy-activism/docs35 See footnote 22 .36 Ruggie, J . (2011) Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, 21 March, A/HRC/17/31, para . 26-31 . Thematic reports / 19
Freedom of expression on the internet:Implications for foreign policyBen Wagner Following Clinton’s remarks, several EuropeanEuropean University Institute, Department countries began to develop internet freedom ini-of Political and Social Sciences tiatives, which were generally understood to be awww .eui .eu 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 aIntroduction joint communiqué by Bernard Kouchner and MaximeSince the birth of the public internet, questions of Verhagen, then French and Dutch foreign ministers,global internet governance have also been questions in May 2010 . The initiative culminated in a meetingof international affairs .1 However, while internet se- at ministerial level on “The Internet and Freedom ofcurity has historically been heavily politicised at an Expression” in July 2010 .6 Here too the key aspectsinternational level, it is only more recently that the of the meeting agenda were the support of the sup-questions of internet expression and free speech posed revolutionary activities of “cyber dissidents”have been perceived as a foreign policy issue . The and the ambiguous role of the corporate sector . How-following analysis will provide an overview of the ever, the Franco-Dutch initiative includes significantlytwo key foreign policy debates on free expression stronger references to a human rights framework toon the internet, before suggesting paths for the de- guarantee freedom of expression, compared to thevelopment of future internet foreign policy and what US State Department’s internet freedom initiative .consequences these paths are likely to have for free- Since the Franco-Dutch initiative, however, it ap-dom of expression on the internet . pears that the two countries have taken divergent paths in their approach to internet freedom . This canInternet freedom as foreign policy be attributed in significant part to cabinet reshufflesThe “internet freedom debate” has become one of the and shifting balances of power within the respectivemost important international debates on international governments . The French foreign ministry has beenfreedom of expression and foreign policy .2 One of the hit by a turbulent period following the resignationmost important public statements of such a foreign of Bernard Kouchner . In this period the presidentialpolicy initiative was United States (US) Secretary of palace increasingly came to dominate internet for-State Hillary Clinton’s “Remarks on Internet Freedom”3 eign policy following President Nicolas Sarkozy’smade on 21 January 2010 . Despite including other call for a “civilised internet”, with the state acting ascountries, the obvious focus of her statement was a civilising force .7 In the Netherlands, parliamentaryChina and Iran, which are both mentioned more than elections in 2010 and the resulting cabinet reshuf-any other country . Moreover, within this foundational fle has also led to the appointment of a new foreignstatement on internet freedom as foreign policy, two minister, Uriel Rosenthal . In contrast to France, hekey aspects stand out: the assumption that ensur- recently stated his interest to go beyond existinging freedom of expression might serve to foment “US internet freedom initiatives, suggesting that indus-friendly revolutions”4 and the highly ambiguous role of try self-regulation is insufficient and that additionalthe corporate sector in securing free expression .5 governmental regulation is necessary .81 Tallo, I . (2011) eGovernment and eParticipation, paper presented 6 de la Chapelle, B . (2010) Remarks by Bertrand de la Chapelle during at the European University Institute workshop Government and the the Dynamic Coalition on Freedom of Expression and Freedom of Internet: Participation, Expression and Control, Florence, Italy, 8-9 the Media on the Internet Coalition Meeting, at the 5th Internet March . Governance Forum, Vilnius, Estonia, 14-17 September . webcast .2 Ross, A . (2010) Internet Freedom: Historic Roots and the Road intgovforum .org/ondemand/?media=workshops Forward, SAIS Review, 30 (2), p . 3-15; McCarthy, D . R . (2011) Open 7 Woitier, C . (2011) Sarkozy préfère «l’internet civilisé» Networks and the Open Door: American Foreign Policy and the aux cyberdissidents, Le Figaro, 20 May . www .lefigaro .fr/ Narration of the Internet, Foreign Policy Analysis, January . politique/2011/05/20/01002-20110520ARTFIG00584-sarkozy-3 Clinton, H . (2010) Remarks on Internet Freedom . www .state .gov/ prefere-l-internet-civilise-aux-cyberdissidents .php secretary/rm/2010/01/135519 .htm 8 Rosenthal, U . (2011) Speech by Dutch Foreign Minister Uri Rosenthal4 Nye, J . S . J . (2009) Get Smart: Combining Hard and Soft Power, at the International Digital Economy Accords (IDEA) Brussels Meeting, Foreign Affairs, 88 (4) . Brussels, Belgium, 23-24 March . www .rijksoverheid .nl/documenten-en-5 Human Rights Watch (2006) “Race to the bottom”: Corporate complicity publicaties/toespraken/2011/03/24/speech-by-pieter-de-gooijer-at-the- in Chinese internet censorship, Human Rights Watch, New York . international-digital-economy-accords-idea-brussels-meeting .html 20 / Global Information Society Watch
The internet freedom debate has also reached the expression on the internet within existing human rightsGerman foreign ministry . Despite widespread public law, looking for ways of applying existing norms anddebates about national internet governance and developing “new rights” for the internet .11 This strategyregulation within Germany, these debates have had is typically pursued in co-operation with existing inter-a limited impact on German foreign policy outside of national institutions which promote human rights andEurope until relatively recently . Following this model, freedom of expression, including the United Nations (UN) .the first statement on internet freedom made by the A recent report by UN Special Rapporteur Frank LaGerman Foreign Minister Guido Westerwelle in May Rue entitled “Report on the promotion and protection2011 draws significantly more on international dis- of the right to freedom of opinion and expression” iscourses on internet freedom than national debates primarily devoted to developing “general principles onabout internet governance and regulation .9 the right to freedom of opinion and expression and the Consequently, the challenge facing the German, internet”12 as well as a framework within which internetFrench, Dutch and US foreign ministries is to create a content can reasonably be restricted . This report wascoherent overall frame for internet governance that based on an extensive consultation process with gov-considers both national and international debates . ernments, civil society, international corporations andIt is important to note that the US, Dutch, French and experts . Consequently, it represents probably the singleGerman foreign ministries have all created internal most well-developed framework for applying humanstructures that are explicitly tasked with pursuing in- rights norms to freedom of expression on the internet .ternet freedom policies which promote freedom of The Swedish foreign ministry has been particularlyexpression internationally . This should in the medi- actively following this strategy at various different lev-um and long term lead to noticeable development of els, most notably through consistent support of theinternet foreign policy initiatives . However, as was pre- Special Rapporteur .13 Its long-standing support of hu-viously noted, their ability to effect meaningful change man rights frameworks on the internet gives the foreignon government policy depends heavily on dynamics ministry a considerable level of international credibilitywithin the respective ministries and governments . when it comes to free expression on the internet, as Equally, there are signs that the internet freedom does its ability to organise statements on freedom ofdebate is maturing, both in regard to the development expression on the internet representing a broad inter-of substantive policy initiatives on internet freedom national coalition at the UN Human Rights Council .14and a greater coherence between national and interna- The pursuit of a human rights-based approachtional policy . A recent report by the Washington think has also led to the development of a wide varietytank Center for New American Security, entitled “Inter- of declarations, principles and charters of rights onnet Freedom: A Foreign Policy Imperative in the Digital the internet . These are typically developed withinAge”,10 proposes eight “principles” which should guide international organisations or multi-stakeholderinternet freedom policies in the US, many of which coalitions and attempt to develop human rightsinvolve substantive policy initiatives for promoting frameworks which also apply to freedom of expres-freedom of expression such as reforming export con- sion on the internet .15 The content of these documentstrols, creating economic incentives for corporations to is extremely diverse and ranges from an elaborationsupport freedom of expression, and an attempt to cre- of basic principles such as the Brazilian Principlesate international norms . for the Governance and Use of the Internet (2009), the Global Network Initiative Principles (2008) or theInternet human rights as foreign policy Council of Europe’s Internet Governance PrinciplesWhile the internet freedom debate continues, another (2011), to more extensive documents which seek tostrand of the international debate on freedom of expres- elaborate and apply rights such as the Association forsion on the internet is noticeably distinct and could betermed the “human rights-based approach” . This strat- 11 Benedek, W ., Kettemann, M . C . and Senges, M . (2008) Theegy has specifically been pursued by a number of states, Humanization of Internet Governance: A roadmap towards a comprehensive global (human) rights architecture for the Internet.particularly Sweden and Brazil, as well as a variety of www .worldcat .org/title/humanization-of-internet-governance-international organisations and civil society actors . This a-roadmap-towards-a-comprehensive-global-human-rights-discourse seeks to situate the debate on freedom of architecture-for-the-internet/oclc/619152167&referer=brief_results 12 La Rue, F . (2011) Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,9 Westerwelle, G . (2011) Gastbeitrag von Guido Westerwelle: Die Freiheit UN Human Rights Council, Geneva, p . 6 . im Netz, Frankfurter Rundschau, 27 May . www .fr-online .de/politik/ 13 Bildt, C . (2011) Carl Bildt’s remarks on Digital Authoritarianism . meinung/die-freiheit-im-netz/-/1472602/8496970/-/index .html www .sweden .gov .se/sb/d/14194/a/16924610 Fontaine, R . and Rogers, W . (2011) Internet Freedom: A Foreign 14 Knutsson, J . (n .d .) Freedom of Expression on the Internet Cross- Policy Imperative in the Digital Age, Center for a New American regional Statement . www .sweden .gov .se/sb/d/14194/a/170566 Security, Washington, D .C . 15 Benedek, Kettemann and Senges (2008) op . cit . Thematic reports / 21
Progressive Communications (APC) Internet Rights into foreign policy . The three key aspects that are per-Charter (2006)16 or the Charter of Human Rights and sistently mentioned in this regard are (1) a linkage toPrinciples for the Internet (2010) . existing human rights frameworks, (2) the perceived Common to all these documents is their reference to role of the internet in enabling or fuelling revolutions,international human rights law, most frequently to the and (3) the questionable role of the private sector .Universal Declaration of Human Rights (1948) . More- However, these aspects are developed in very differentover, they are typically developed by a wide range of policy contexts . “Internet freedom strategies” focusstakeholders from various institutional backgrounds, more on specific foreign policy goals and specific eventsincluding civil society, the private sector, and the aca- which are perceived to be causally linked to freedom ofdemic and technical communities . Foreign ministries, expression, typically protest events and revolutions . Inwhile often directly involved in the drafting process, contrast, “internet human rights strategies” focus morehave not typically taken leadership in the drafting of on developing and embedding aspects of freedom onsuch documents . the internet into existing human rights frameworks . One of the most interesting examples of such In the case of internet freedom-based strate-collaborative efforts is the Charter of Human Rights gies, overall government internet policy coherenceand Principles for the Internet,17 which was devel- is particularly important . This stems from very differ-oped by the Internet Rights and Principles Dynamic ent international and national policy strategies onCoalition of the Internet Governance Forum . To give the internet, leading to value conflicts which may besome idea of the diversity involved in the drafting particularly harmful for foreign policy . The tension be-process, the Steering Committee of the Coalition is tween internet policies at a national level – WikiLeakscomposed of academics from Japan, Brazil, the UK in the US or the HADOPI law in France – and a foreignand the US, Indian, US and Brazilian civil society policy which promotes internet freedom is by no meansrepresentatives, German, US and UK private sector lost on those addressed by these policies . The chal-actors, representatives of the Council of Europe and lenge here is not just to bring the relevant policy areasUNESCO, and a Swedish diplomat . together in one document, as was the case in the US Fundamental to all of these documents is the belief International Strategy for Cyberspace,18 but to developthat human rights are a relevant frame for promoting the a coherent framework with principles that can be ap-rights of individuals on the internet . Consequently, this plied across ministries and policy areas .approach stands and falls with the acknowledgement of Here internet human rights strategies are at an“internet human rights” within the wider human rights advantage, as they already have a clear set of princi-community and international human rights law . It would ples, but are dependent on the acknowledgement ofseem that with the report by La Rue, which was present- “internet rights as human rights” .19 They also profited to the Human Rights Council, a significant step in this from a wide base of stakeholders who are involveddirection has been taken, but it remains to be seen how in the drafting process . Considering the number ofthe report itself is received . charters and principles currently circulating, it re- mains to be seen whether a coherent overall internetThe paths ahead? Internet policy coherence… human rights framework can be developed .While many states are prepared to affirm the im- Finally, as internet freedom policies mature andportance of human rights and rights to freedom of internet human rights frameworks develop, there isexpression on the internet, as mentioned, relatively likely to be an increasing overlap between both in-few have been actively involved in the process of ternet freedom and human rights-based strategies .developing the charters and principles which have While the divide between states pursuing separateproliferated over the last five years . Although these foreign policy strategies on these issues is likely to re-processes do not necessarily have to lead to interna- main, due to differing strategic interests and foreigntional treaties like the Council of Europe Cybercrime policy objectives, there is reason to suggest that thereConvention (2001), they do provide a space for de- might be space for greater cooperation between statesfining and elaborating concepts and principles on in developing policies which pursue greater freedom offreedom of expression on the internet . expression on the internet . n Increasingly, foreign ministries have to wrestle withtranslating initiatives related to freedom of expression 18 US National Security Council (2011) International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked16 Association for Progressive Communications (2006) APC Internet World, Executive Office of the President of the United States, Rights Charter . www .apc .org/en/node/5677 National Security Council, Washington, D .C .17 Internet Rights and Principles Dynamic Coalition (2010) Charter 19 Association for Progressive Communications (2011) Internet Rights of Human Rights and Principles for the Internet: Beta Version 1.1. Are Human Rights. www .apc .org/en/pubs/briefs/internet-rights- internetrightsandprinciples .org/node/367 are-human-rights-claims-apc-human- 22 / Global Information Society Watch