Frequently Asked Questions - Internet rights are human rights
APC takes the United Nations Universal Declaration of Human Rights (“UDHR”) as a starting point for our work on human rights. From there we include other global and regional treaties which may be relevant when working on specific issues.
The main focus of Connect your rights! Internet rights are human rights is on the right to freedom of expression and association. However, all rights are interconnected and no specific rights are more important than any others. All human rights depend on each other to be fully realised.
The Internet Rights Monitor is broken up into three sections:
The dynamic section, “Monitoring internet rights worldwide”, is the middle column on the Connect your rights site and is regularly updated with headlines around internet rights issues.
The more static sections, which includes the FAQ section and the Human Rights Mechanisms section, appear as separate tabs in the navigation bar.
The FAQ section explains what we mean by internet rights, and how they correspond to human rights. It also includes APC’s position on frequently asked questions, such as the role of intermediaries. This will be updated periodically to reflect APC’s position on new issues as they arise.
The Human Rights Mechanisms section is the complex legal jargon, intended to act as a kind of glossary to which the FAQ section can link to and refer. This section will only be updated in the event of major changes to the human rights or internet rights landscape, and is intended to act as a resource for legal-minded human rights defenders.
APC takes the United Nations Universal Declaration of Human Rights (UDHR) as a starting point for our work. From there we include other global and regional treaties which may be relevant when working on specific issues.
While much of our work focuses on freedom of expression and association, all rights are interconnected and none are more important than others. All human rights depend on each other to be fully realised.
Everyone has the right to free speech online, whether through blogs, chat, e-mail or mobile phones. Individuals must be able to express opinions and ideas, and share information freely when using the internet, without threat of harassment or censorship.
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
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...
Everyone has the right to freedom of peaceful assembly and association. In practice, this means having affordable access to social networking sites, forums or chatrooms, undue censorship or blocking of these spaces is a violation of our human rights.
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.
We each have the right to live private lives, and this privacy is integral to our well-being and security. Neither states nor private entities should intrude on this right, whether through warrant-less surveillance or requiring undue personal information for the use of services. Protection of our privacy also includes the right to use anonymity and encryption software.
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.
The right to development affirms that we are all entitled to pursue the realisation of a reasonable standard of living. This includes group rights for self-determination.
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.
By virtue of the unique challenges and dangers facing women in many parts of the world, women as a group are entitled to certain rights. This includes our right to live free of discrimination or exclusion, and an affirmation of our right to political, economic, and social participation.
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.
Human rights defenders are at higher risk due to the nature of their work. As such, states are obligated not to interfere with their work or their ability to coordinate internationally.
Human rights are universal and apply to everyone everywhere, offline and online. However, the internet and its global decentralised infrastructure creates a number of unique situations where these rights need to be specifically addressed and understood. In this section a few of these issues are outlined together with APC’s position.
A group of people chosen to consider a particular subject and advise the Human Rights Council. The HRC has these for all sorts of issues from country specific investigations (e.g about Syria or Sri Lanka) to topical issues like freedom of peaceful assembly, which was the focus of the 18th session.
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.
The practice of treating all content, information and users on the internet equally is generally referred to as Network Neutrality. Network Neutrality has become an important issue in the last few years as some ISP’s have attempted to “shape” internet connections by favouring certain types of content over others. Examples include slowing down large downloads or offering VOIP only to those paying to use that specific service.
Chile, and more recently the Netherlands have recently passed legislation defending the principle of network neutrality.
A recent controversy involving network neutrality was the deal between Google and Verizon in 2010. This deal stated that prohibitions against ISPs steering traffic based on users or content excluded wireless providers. In essence, it allows for wireless ISPs to mange traffic on their network in any way they choose.
Affordable, universal access to the internet is far from a reality. While some countries have enacted legislation which guarantees access, others are more hesitant, acknowledging the internet’s importance for development but wary of considering it a basic right.
Access to the internet is a multifaceted issue which goes beyond access to the physical infrastructure. However, access to the physical infrastructure is necessary for internet access, and the internet’s backbone is constantly developing. Please click here to see current status of undersea cables, which are very important for enabling access in the developing world.
APC believes that the internet, with all its potential for enabling democracy, development and knowledge-sharing, should be seen as a public good. As such, governments should take steps to enable affordable access for all citizens. As described in the freedom of expression section we see universal internet access as a critical building block for exercising the rights to freedom of expression and association.
APC calls upon states, particularly developing states, to adopt and implement unversal internet access programmes in their endeavor to promote development in urban as well as rural areas. Meanwhile, APC calls upon developed states to facilitate such programmes by developing an inclusive internet infrastructure with a focus on bridging the digital divide.
However, it is important to understand that access to the internet is a multi-faceted concept, including access to the internet in local languages, access for disabled persons and the ability for everyone, including local minorities, to develop and share their own content.
Internet intermediaries are the private corporations providing services on the internet through hosting, transmitting, giving access to and indexing internet content. Examples of intermediaries are internet service providers, web site hosts, search engines and social network providers.
In recent years states have begun relying on these intermediaries to conduct filtering of online content and monitoring of users’ activities. By holding intermediaries liable for third party content, such as defamation or media piracy, states encourage them to censor all but the most mainstream content. The result is typically excessive filtering and a chilling effect on free speech.