Each week, David Souter comments on an important issue for APC members and others concerned about the Information Society. This week’s blog looks at human rights and how they have been affected by ICTs and the Internet.
We talk a lot about ICTs and human rights. Adherence to human rights agreements is entrenched in the WSIS outcome documents and was reiterated in the WSIS+10 review agreed last year by the UN General Assembly. There were said to be more workshops at last year’s Internet Governance Forum on rights issues than any other theme.
For those who value human rights, that’s something of a victory. Go back in time and the link between ICTs and rights was much less clear. There was a lot of argument about how, perhaps even whether, they should be included in the WSIS outcome documents – and echoes of that argument still surface now. For years, the IGF shied away from talk of rights because it might be too contentious.
So, you might think: all done – but you’d be wrong. The relationship between ICTs and rights is complex and evolving, like the relationship between ICTs and development. I’ll look at several aspects of this over the next few weeks, alongside other issues. Today, I’ll raise the broader context.
What human rights?
First, what human rights? The WSIS outcome documents affirm ‘the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms,’ and cite the Universal Declaration of Human Rights that was agreed in 1948.
More important, however, are the International Covenants that gave legal substance to UDHR principles in 1966 – one on Civil and Political Rights (ICCPR), one on Economic, Social and Cultural Rights (ICESCR). And the international rights regime includes a number of other agreements, notably conventions on the rights of women (CEDAW) and children (CRC), and on racial discrimination (ICERD).
It’s worth remembering that these are negotiated texts, and that they were (mostly) negotiated in a very different age from ours: one that had different fears and aspirations, different technologies, different governments and different intergovernmental politics.
They are also cited more often than they’re studied. Assumptions are often made about what’s in them, which aren’t as accurate as they might be.
Article 19 of the UDHR and of the ICCPR is by far the most familiar – at least in concept – to those who deal with ICTs and the Internet. That article asserts freedom of expression, including freedom to seek, receive and impart information and ideas, regardless of frontiers, through any medium of choice. But it is only one of many articles, covering many issues, from fair trial to trade union rights, protection of the family to protection of the rights of authors.
How are ICTs and the Internet changing rights?
When I surveyed rights professionals for APC four years ago, they identified three areas in which they thought that rights had been profoundly affected by the Internet. Freedom of expression and information, they thought, had been greatly enhanced, as had freedom of association and assembly. Privacy, they thought, was gravely threatened.
But many other rights, which have had less attention, are also substantially affected. Next week I’ll look at impacts on economic, social and cultural rights – the theme for a new APC initiative.
Rights and limitations
And the detail of what’s in the international rights instruments is often overlooked. The WSIS Declaration of Principles doesn’t just cite Article 19. It also reaffirms commitment to Article 29 of the UDHR, which declares that rights may be limited, by law, for ‘the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’
Article 19 of the ICCPR likewise says that freedoms of expression and information may be subject to restrictions for ‘respect of the rights or reputations of others’ and for ‘the protection of national security or of public order, or of public health or morals’ – though only ‘such as are provided by law and are necessary’ for the purpose.
The international rights agreements are interpreted and enforced through national law. There’s a tension here between universal principles and national norms of ‘morality, public order and the general welfare.’
A lot’s been done to interpret this tension over the years by the UN’s Human Rights Council and by special rapporteurs on individual rights. They’ve been concerned to narrow the circumstances in which the limits set out in the rights regime are exercised. Those who are concerned with human rights online should be familiar with their texts.
Equivalence of rights online and offline
But what is the relationship between rights online and offline? There’ve been several recent statements by the UN General Assembly and Human Rights Council asserting that ‘the same rights that people have offline must also be protected online.’ Specific reference has been made to freedom of expression and to privacy.
Many have seen this statement of equivalence between rights online and offline as a defining moment in the relationship between ICTs and rights. I’ll make two points about this.
First, defining or not, it seems to me a statement of the obvious. If rights set out in the international rights regime are universal, indivisible and interdependent, as international agreements repeatedly declare, how could it be otherwise? Universal means universal. It’s hard to see how it could exclude online.
Second, if the same rights apply online as offline, then so do the same limits to rights including those in Article 29 of the UDHR and Article 19(3) of the ICCPR.
So, are ICTs changing rights?
Which takes me back to my initial question: are ICTs and the Internet changing rights?
No-one today is suggesting that ICTs and the Internet have altered the principles set out in the international rights regime. Some at the time of WSIS wanted to extend the wording of the rights regime to include communication rights, but others feared this would open rights agreements to other changes that would be more restrictive.
But ICTs have changed the context for rights as dramatically as they have changed that for development. They’ve created new ways in which they can be exercised, protected or violated, not just by states but by non-state actors and individuals. They’ve affected the balances that were carefully built into rights instruments during negotiations, in ways that change how they are used and how they are interpreted. They’ve changed the meaning, in practice, of the limits referred to in the texts. All of which affects the legislative frameworks which governments deploy to enforce (or violate) them.
These changes also should also affect priorities for rights defenders. It’s not enough just to repeat commitment to the texts of human rights agreements, to praise new ways of exercising rights or to denounce new kinds of violations. If we’re going to protect rights or advance them, we also need to understand the impact ICTs are having on how they can be exercised and violated.
Next week, I’ll look at the relationship between ICTs and economic, social and cultural rights – which have received much less attention from ICT advocates than civil and political rights.