The right to freedom of expression and opinion can be found in nearly all human rights treaties. Of particularly significance are:

UDHR article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers

And

ICCPR article 19

Everyone shall have the right to hold opinions without interference.

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are 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.

The right to freedom of opinion and expression in an internet context is described well by the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, in his annual report released June 2011, including how limitations to freedom of opinion and expression may apply online:

The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.

The vast potential and benefits of the Internet are rooted in its unique characteristics, such as its speed, worldwide reach and relative anonymity. At the same time, these distinctive features of the Internet that enable individuals to disseminate information in “real time” and to mobilize people has also created fear amongst Governments and the powerful. This has led to increased restrictions on the Internet through the use of increasingly sophisticated technologies to block content, monitor and identify activists and critics, criminalization of legitimate expression, and adoption of restrictive legislation to justify such measures. In this regard, the Special Rapporteur also emphasizes that the existing international human rights standards, in particular article 19, paragraph 3, of the International Covenant on Civil and Political Rights, remain pertinent in determining the types of restrictions that are in breach of States’ obligations to guarantee the right to freedom of expression.

As set out in article 19, paragraph 3, of the Covenant, there are certain exceptional types of expression which may be legitimately restricted under international human rights law, essentially to safeguard the rights of others. This issue has been examined in the previous annual report of the Special Rapporteur. However, the Special Rapporteur deems it appropriate to reiterate that any limitation to the right to freedom of expression must pass the following three-part, cumulative test:

a. It must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); and
b. It must pursue one of the purposes set out in article 19, paragraph 3, of the Covenant, namely (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals (principle of legitimacy); and
c. It must be proven as necessary and the least restrictive means required to
achieve the purported aim (principles of necessity and proportionality).

Moreover, any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political, commercial, or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.

As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).

However, in many instances, States restrict, control, manipulate and censor content disseminated via the Internet without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim, as explored in the following sections. Such actions are clearly incompatible with States’ obligations under international human rights law, and often create a broader “chilling effect” on the right to freedom of opinion and expression.

In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. Similarly, while the protection of children from inappropriate content may constitute a legitimate aim, the availability of software filters that parents and school authorities can use to control access to certain content renders action by the Government such as blocking less necessary, and difficult to justify. Furthermore, unlike the broadcasting sector, for which registration or licensing has been necessary to allow States to distribute limited frequencies, such requirements cannot be justified in the case of the Internet, as it can accommodate an unlimited number of points of entry and an essentially unlimited number of users.”

Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, Frank La Rue, A/HRC/17/27, http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.2...

UDHR article 20

Everyone has the right to freedom of peaceful assembly and association.

No one may be compelled to belong to an association.

ICCPR article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

ICCPR article 22

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

The right to freedom of association is the right for individuals to gather with any other individual or group to promote, pursue or defend a common interest. Freedom of peaceful assembly generally refers to the right to participate in political gatherings and demonstrations, while freedom of association generally refers to the right to be part of an organisation or political party. This also serves as an important protection for unions and other labour organisations.

While the internet has enabled human rights defenders to gather easier, share knowledge more efficiently and report news faster, it has also exposed these same groups to surveillance by authoritarian states. Human rights defenders on the internet require strong protections for the right to freedom of association and peaceful assembly.

However, recent studies have shown that authoritarian states are less concerned with restricting unwanted association, but prefer instead to harass individual human rights defenders. This is typically done through the police or intelligence agencies, and is made possible by monitoring the online activities of human rights organisations.

Closely related to ensuring the right to freedom of association is anonymity and circumvention tools. This is especially important for suppressed groups in authoritarian societies.

UNDHR article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

ICCPR article 17

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.

Everyone has the right to the protection of the law against such interference or attacks.

As governments all over the world have begun to monitor the online activities of their citizens, the right to privacy has become increasingly important. The ease with which governments can now watch large numbers of people with relatively few resources means that the privacy, and safety, of human rights defenders is at risk.

Privacy and data protection issues are often complex, and it can be difficult to find a common standard. We refer to Privacy International and their work on privacy for further reading, particularly their research on Privacy as a political right.

Privacy rights are closely related to the ability to remain anonymous on the internet. The TOR project offers a popular anonymity service and describes several important privacy issues.

Declaration on the Right to Development article 1:

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.

The human right to development also implies the full realization of the right of peoples to self- determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

While the UDHR calls for equal rights for men and women, the Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW from 1981 is considered the main treaty regarding women’s rights.

CEDAW article 1

For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

CEDAW article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

a. To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriatemeans, the practical realization of this principle;

b. To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

c. To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

d. To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

e. To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

f. To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

g. To repeal all national penal provisions which constitute discrimination against women.

See the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights.

First up, we rallied support for the Panel by making joint statements and writing to governments and encouraging other NGOs to support it as well.

Now that the HRC has voted to go ahead with a panel, we will try to work closely with the Swedish government on the terms of reference, to suggest experts, share our research and mobilise engagement as part of the Connect Your Rights! Campaign. If all goes well, we would look to follow up the Panel’s recommendations in the UPR processes that we are supporting in India, Brazil, South Africa and the Philippines which will go before the HRC in June 2012.

Yes! The panel outcomes may be weak if the “experts” are not of high quality or there is weak or ill-informed engagement on the issues, or the sponsoring State does not co-ordinate the process well. Because there is no process for a resolution to be voted on at the end of the panel, there is a risk that discussion will remain very diplomatic, that it may water down the substance of the issues, and that it still gives the possibility for opponents to disrupt debate or ensure there are no concrete outcomes.

There is no set procedure for Panels. Generally, it is up to the leading sponsor State to coordinate the identification of panelists and the general concept note of the meeting. A panel consists of a 3 hour formal UN debate – usually introduced by 4-5 experts in the field and high level personalities. States and some NGOs respond to that with their political statements. At the end the Panel reports to the Council, hopefully with some recommended actions. This might happen at the 19th session of the HRC in March 2012.

A Panel is often seen as the softest, risk-free step that the Council can take on an issue. Sometimes these kinds of panels are criticized because of that – too weak an option, not really doing anything, delay tactic etc. On the other hand it is a good entry point for a new issue and it’s safe in the sense that there is no automatic follow up.
However, it’s useful for bringing a new agenda forward or consolidating an issue without negotiating a resolution, and without risking creating divisions around a bad resolution For this reason I think it is a really good option for the internet rights are human rights work. If it goes badly, the outcome won’t be strategically damaging and it will give us a chance to see how states will engage.

APC will be issuing statements and making recommendations throughout the process. You can help us through endorsements or by signing online petitions.

Check the CYR homepage for updates and the latest news on the campaign and the panel process.