Internet and the UN Human Rights Council: The good, the bad and the road ahead
Par Joy Liddicoat pour IRHR
WELLINGTON, New Zealand, 25 September 2012
Governments in the HRC have taken up internet issues much faster than anticipated and it is safe to predict that this will increase. But governments’ discussions about the internet and human rights must become more multi-stakeholder. Until this happens, civil society must continue to look for opportunities within the HRC to find strategic entry points for advocacy and support each other to do so. Concrete action and follow up on the HRC Panel is needed before the next annual resolution on freedom of expression and the internet. The most useful next step would be to have a thematic discussion focussing on a rights based approach to internet access including access to infrastructure, access to diverse content and for diverse marginalised groups.
We’ve come a long way since May 2011 when Frank La Rue’s report drew the attention of the United Nations Human Rights Council (HRC) to freedom of expression and the internet for the first time. Activists working on internet rights and freedoms every day find it hard to believe that the HRC is only just beginning to wake up about the internet. Poised between the recent HRC21 meeting and the Internet Governance Forum in November 2012, now’s a good time to stop and take a look at what’s happening: the good, the bad, what civil society and governments are doing and consider some implications.
A year in the life of the internet at the United Nations
2012 started well for internet rights defenders. In February the HRC held the first ever panel discussion on freedom of expression and the internet. The Panel built on the work of Frank La Rue and seemed to spur a focus by others in the UN human rights machinery. By mid-2012 it was clear that the Special Rapporteurs were leading internet related human rights issues including the Special Rapporteurs on Freedom of Association, Cultural Heritage, Racism, Racial Discrimination and Intolerance and Xenophobia, and with a UN Panel Discussion on women’s human rights defenders. On 2 July, in the now annual resolution on freedom of expression and the internet, 85 countries signed the Swedish-led resolution (up from 14 governments two years ago) affirming the simple proposition that the same human rights we have offline apply online . In September the official summary of the HRC Panel was submitted to the HRC and all eyes now are on what will happen next.
Several other internet related trends emerged during the year. The first was in the Universal Periodic Review process, where human rights defenders and internet activists began joining together to assess the internet rights performance of their governments. By August 2012 they had done so in more than half a dozen countries. Their advocacy is gaining momentum, resulting in internet rights issues being raised more than 40 times by various governments in their peer reviews of each other’s human rights performance. The second trend was in the Human Rights Committee (which oversees the ICCPR and other treaties), which began to specifically focus on the internet. In 2011, for example, the Committee ruled that freedom of expression in Article 19 of the ICCPR applies to internet related expression. In 2012, human rights groups (many with no previous knowledge or little experience on internet related human rights issues) have been thinking about how they can respond and are turning, in some cases for the first time, to internet activists for help.
The clear benefit of the HRC Panel was the open dialogue it generated among governments. While some government responses were predictable (such as those governments advocating for freedom of expression and those emphasising legitimate restrictions such as for racism or reasons of national security) there has been a surprisingly mature dialogue. The degree of consensus that the same human rights apply online as apply offline also took many by surprise. The level of interest is high and the quality of discussion is evidenced in the many governments’ statements and thoughtful questions. Governments’ approaches have generally been measured and careful and some are genuinely struggling with how best to fulfil their human rights obligations in the digital age. This is a good sign, suggesting that there is a desire to think carefully through the implications of applying the human rights framework to internet related issues and for governments to strategically position themselves in relation to this.
The now annual resolution on freedom of expression and the internet paves the way to build on this and for solid progress in broadening and deepening IRHR understandings and commitments. But this will only happen if it is accompanied with some practical concrete actions to retain existing internet rights and freedoms and restrain violations. There is a need to foster broad consensus among governments on issues such as internet access, freedom of association online, best practice in monitoring and reporting on internet related rights violations, and to widen the focus from civil and political rights, to the full range of economic cultural and social rights.
Without such concrete follow up the opportunity will fall away. There are worrying developments such as the increasing use of content blocking (see for example this article which suggest governments will continue to move more quickly than the HRC can respond and that HRC will be unable to catch up with pace of change (which it is already behind). A key factor to countering this and ensuring positive follow up action by governments in the UN HRC is a strong network of civil society groups who can monitor, advocate and take action to insist governments are accountable across the internet governance ecosystem.
But there are few civil society voices in the HRC discussions and those who are present must advocate strongly and be well organised to be heard. Even amongst civil society groups more generally, the global processes of the HRC are restricted to a small number, generally those with the resources to attend and work sustainably with others or who have a physical presence in Geneva or New York. Groups such as Forum Asia and Reporters Sans Frontiers are doing good work building internet related human rights issues into their more general advocacy work where they can. But the wide ranging, complex and pressing nature of other issues that mainstream human rights groups advocate on means that it is difficult for many internet related matters to come to the forefront of their attention. The reality is that only a handful of internet specific groups and networks are actively engaged and participating in the HRC. However, a number of groups are paying attention and are drawing on these developments in their regional and national meetings and to develop calls to action (see for example this article).
Internet activists see their online rights and freedoms being eroded on a daily basis. A significant concern in relation to the HRC is that governments might be positioning themselves to use the human rights framework to assert some moral or other authority to take more control of internet governance. For example, by asserting that as they are duty bearers with responsibility for the protecting their citizens’ rights, governments in general should have greater (and particularly decisive and controlling) power when they come to the table in multi-stakeholder forums.
In this regard, the strength of these HRC processes (consensus building among governments) is also its significant weakness. The HRC is a government forum, not a multi-stakeholder one. Civil society groups participate under very tightly constrained circumstances and in accordance with complex rules. Good technical community input in the HRC has come from the Internet Society which has recently begun to focus on the HRC.
Private sector involvement has been very limited, partly because the HRC does not generally allow private sector participation and partly because the private sector has traditionally eschewed engagement with human rights. But there has also been inadequate connection between the new UN guidelines for human rights and business and internet rights discussions in the HRC. The inconsistent application of policies of internet related transnational private sector corporations is being thrown into increasingly sharp relief. The private sector will need to determine how it will engage in the HRC processes to avert a looming crisis of confidence driven by both government and civil society concerns. For civil society activists, such inconsistencies also seriously impede the good progress to date in the HRC, particularly where the principle of the universality of human rights is undermined by the individual application of standards within national boundaries by private sector bodies in ways that civil society feel powerless to challenge.
It’s been a year of promising developments: a year of increasing debates about the internet and human rights among governments and increasing use of human rights to leverage accountability against governments for rights violations. Governments in the HRC have taken up internet issues much faster than anticipated and it is safe to predict that this will increase. But governments’ discussions about the internet and human rights must become more multi-stakeholder. Until this happens, civil society must continue to look for opportunities within the HRC to find strategic entry points for advocacy and support each other to do so. Concrete action and follow up on the HRC Panel is needed before the next annual resolution on freedom of expression and the internet. The most useful next step would be to have a thematic discussion focussing on a rights based approach to internet access including access to infrastructure, access to diverse content and for diverse marginalised groups.