Internet rights at the Human Rights Council 32nd session

By Deborah Brown (APC); Deniz Duru Aydin and Peter Micek (Access Now) Geneva, 12 June 2016

The 32nd session of the Human Rights Council is taking place from 13 June to 1 July 2016 in Geneva. This session will be a significant one for internet rights, as the HRC will renew the bi-annual resolution on the promotion, protection and enjoyment of human rights on the internet. First passed in 2012, the resolution affirmed that the same rights that people have offline must also be protected online.

Thematic debates will have a substantial focus on the internet, with two UN Special Rapporteurs dedicating their annual thematic reports to internet-related issues. David Kaye, the Special Rapporteur on freedom of opinion and expression, will present his report on the corporate responsibility of private actors to protect and promote freedom of expression in the digital age, and Kishore Singh, the Special Rapporteur on the right to education, focuses his report on issues and challenges to the right to education in the digital age. Internet rights will also be discussed in the context of civil society space, violence and discrimination against women, and racism, among other issues.

Concerns relating to specific governments’ records on internet rights will be raised in the adoption of Universal Periodic Review (UPR) reports for Denmark, Estonia, Latvia, Niger, Seychelles and Singapore.

The Twitter hashtag for the session is #HRC32, and plenary sessions will be live streamed and archived at this link.

Resolutions relating to the internet and human rights

  • Internet and human rights: Sweden, together with Brazil, Nigeria, Tunisia, Turkey and the United States, will present a resolution on the internet and human rights, building on the 2012 and 2014 resolutions, which established that the same rights that people have offline must also be protected online. This year’s resolution is expected to focus thematically on a human rights-based approach to achieving the Sustainable Development Agenda, in particular the importance of information and communications technologies (ICTs) and bridging the gender digital divide. The resolution is expected to also address intentional disruptions of access to or dissemination of information online, attacks against people for using the internet to exercise their human rights, and the importance of improving access to the internet and ICTs for persons with disabilities.
  • Creation and maintenance of a safe and enabling environment for civil society: Ireland, Chile, Japan, Sierra Leone and Tunisia will present a resolution on the creation and maintenance of a safe and enabling environment for civil society. This resolution directly responds to a new report by the United Nations High Commissioner for Human Rights (detailed below), which spells out practical recommendations for the creation and maintenance of a safe and enabling environment for civil society, based on good practices and lessons learned including access to communications technologies and connectivity.
  • Business and human rights: Norway, Argentina, Ghana and Russia will present a resolution on business and human rights, which aims to pick up on the content of the OHCHR report on its efforts to outline guidance for states to improve access to state-based remedy. Access to remedy is arguably the least addressed pillar of the UN Guiding Principles on Business and Human Rights, and is highly relevant for the ICT sector, where there is an enormous gap in understanding and implementation of access to remedy for violations of human rights online.
  • Sexual orientation and gender identity: The HRC will consider a resolution addressing discrimination and violence on the grounds of sexual orientation and gender identity (SOGI). The resolution is expected to call for the establishment of a dedicated protection mechanism to address SOGI-related human rights violations.

Special Procedures mandates related to the internet and human rights up for renewal at HRC32: Freedom of Assembly and Association and Working Group on the Elimination of Discrimination Against Women.

Reports from this session referencing the internet (in chronological order)

The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’s report includes a reference to cyberbullying, “which is associated with a wide range of mental, psychosocial, cognitive, educational and health problems.” While the Special Rapporteur emphasised that the right to protection “extends to violence in the digital environment,” he also warns that “it is neither appropriate nor possible to seek to restrict adolescents’ access to the digital environment” as a counter-measure. He recommends “the adoption of holistic strategies aimed at enhancing adolescents’ capacities to protect themselves from online harm.”

The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health will present his report on 14 June (15-18h CET).

The Special Rapporteur on the freedom of opinion and expression, David Kaye, has begun a multi-year project to provide “guidance on how private actors should protect and promote freedom of expression in a digital age.” To begin this study, the new report maps the issues at stake, including threats to freedom of expression and privacy, as well as multiple players, rules, knowledge gaps, and avenues for advocacy and progress. The Special Rapporteur identifies areas of future study including: internet shutdowns; content restrictions under terms of service (including efforts to combat hate speech and extremist or terrorist content); liability for content hosting, such as in copyright contexts; the censorship and surveillance industry, producing tools that governments often abuse; efforts to undermine digital security and weaken technological safeguards; and internet governance and connectivity initiatives.

Access Now and APC participated in a civil society consultation on this report, and APC provided written input. See our reactions to the report here (APC) and here (Access Now).

The Working group on transnational corporations and human rights’ annual report examines the duty of states to protect against human rights abuses involving those business enterprises that they own or control, which are generally referred to as state-owned enterprises. The report notes that state-owned enterprises, such as partially or fully state-owned telecommunications companies, can have important human rights impacts, both positive and negative, and that states must take “additional” steps to protect against human rights abuses by these businesses. This report gives persuasive reasons for states to take additional steps, and helps define a range of measures to operationalise this call. The Working Group recently released a report of the summary of discussions at the first UN Asia Regional Forum on Business and Human Rights, which shows there are salient issues with respect to technology and the internet that fall within the broader Business and Human Rights framework. In its recommendations section, the report included references to human rights defenders – via specifically calling for more efforts on the development of technology “to create urgent alert assistance, protection and support for human rights defenders at threat.” In addition, as outlined in the report, “digital surveillance, the right to privacy and freedom of expression online” are issues that are expected to be discussed in the context of human rights due diligence in the ICT sector.

The Special Rapporteur on the freedom of opinion and expression and the Working Group on transnational corporations and human rights will present their reports in a clustered interactive dialogue on 16 June (12-15h CET).

The focus of the annual report of the Special Rapporteur on the right to education, Kishore Singh, is education in the digital age. The Special Rapporteur has a balanced approach, taking into account both the opportunities and challenges posed by the “Digital Revolution in Education”. One of the challenges Singh emphasised is the digital divide, both at the global level – as there are disparities in access to the internet and digital technology – and at the societal level – as disparities exist at the national level in terms of quality, speed, infrastructure and resources such as reliable access to electricity, and device type. In addition, the Special Rapporteur raises issues of marginalisation and exclusion as they apply to gender and persons with disabilities. He calls on the “States parties to the Convention on the Rights of Persons with Disabilities” to take appropriate measures to “promote the design, development, production and distribution of information and communications technologies accessible to persons with disabilities.” Singh expresses concern over the impact of online learning when it comes to distance education, particularly when this involves institutions that do not have established and proven pedagogical methodologies for distance learning and are purely offering courses for financial gain, rather than contributing towards the sustainable development of learning and knowledge.

The Special Rapporteur offers a set of recommendations targeting governments as well as the institutions of higher education. First, he emphasises the state’s obligations on “the right to education as laid down in international human rights conventions,” and how “the implementation of digital technology in education” should keep up with such obligations. In addition, he advises that “institutions of higher education using information and communications technologies to modernize their work should make sure they do not transform themselves from real and virtual institutions.” Combining the two responsibilities, he sets out the warning that “massive open online courses should not be used by Governments to reduce public funding and cut instructional costs.”

The Special Rapporteur on the right to education will present his report on 17 June (9-12h CET).

In her first report to the HRC, the new Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonović, outlines thematic priorities for her mandate, including “online violence against women as a new challenge”. Šimonović notes the need to “examine this recent phenomenon, and the applicability of national laws to it, and to make recommendations for States and non-State actors to fight online violence against women and girls while respecting freedom of expression and the prohibition of incitement to violence and hatred, in accordance with article 20 of the International Covenant on Civil and Political Rights.” The topic is expected to stay on the agenda of the Human Rights Council, as well as other UN agencies and international fora.

The Working Group on the issue of discrimination against women in law and in practice’s report addresses the issue of discrimination against women with regard to health and safety. The report refers to the state’s obligation to “facilitate access to scientific and technical knowledge,” which is “of crucial importance with respect to questions of sexuality, reproduction and health education.” The report calls on states “to allow information about health matters to flow freely, without State interference on moral or other grounds,” which has important implications for freedom of expression and right to access information online.

The Special Rapporteur on violence against women and the Working Group on the issue of discrimination against women in law and in practice, its causes and consequences will present their reports in a clustered interactive dialogue on 17 June (12-15h CET).

As requested by a June 2014 HRC resolution the UN High Commissioner for Human Rights carried out a report exploring “legal options and practical measures to improve access to remedy for victims of business-related human rights abuses.” The final report, which will be discussed during this session, identifies challenges and sets out “guidance to improve corporate accountability and access to judicial remedy for business-related human rights abuse.” The guidance focuses on six areas: (a) domestic law tests for corporate legal liability; (b) the roles and responsibilities of interested States in cross-border cases; © overcoming financial obstacles to legal claims; (d) criminal law sanctions; (e) civil law remedies; and (f) domestic prosecution bodies. Regarding financial obstacles, the report recommends that “claimants in cases arising from business-related human rights abuses have access to diversified sources of litigation funding,” including from state funding, pro-bono (free of charge) private legal counsel, and reduced fees for private law claims. As the Special Rapporteur on freedom of opinion and expression noted in his report on freedom of expression and the ICT sector, there is limited guidance as to how principles around the right to remedy should be operationalised or assessed in the context of ICTs. The High Commissioner’s report contributes to understanding around this challenge.

A compilation report of the UN High Commissioner on Human Rights on practical recommendations for the creation and maintenance of a safe and enabling environment for civil society, based on good practices and lessons learned includes a section focusing on access to communications technologies and connectivity, as one of the three long-term support areas and resources which include awareness raising and training as well as funding. The report acknowledges that “a free, open, safe and secure Internet is indispensable to access diverse sources of data and analysis, to enable individuals to make well informed decisions and to mobilize people to call for justice, equality, accountability and better respect for human rights.” In addition, the report refers to “privacy, anonymity, encryption and digital security” as “central concerns for Internet users,” referring to last year’s report by the Special Rapporteur on the right to freedom of opinion and expression. The High Commissioner’s report recommends that “human rights principles must be fully integrated into surveillance initiatives to avoid mass surveillance or abuse of targeted surveillance measures and hacking of personal email accounts and hijacking, blocking or closure of websites.”

APC participated in an Expert Consultation on Recommendations to Maintain a Safe Enabling Environment for Civil Society organised by the Civic Space Initiative, and included written input .

Reports of the UN High Commissioner on Human Rights will be presented on 20 June (13-15h)

The latest report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance addresses developments that he has identified with regard to the continuing human rights and democratic challenges posed by extremist political parties, movements and groups, including neo-Nazis, skinhead groups and similar extremist ideological movements. As mentioned in previous thematic reports of the Special Rapporteur, racist and intolerant hate speech in political discourse has also escalated in the media and on the internet, namely on social networks. The Special Rapporteur expresses his concern that extremist movements and groups are actively present on the internet and social media networks and publish material on their websites, or on those of sympathetic organisations, which promote and incite racial discrimination and violence and are a means of expanding their networks of supporters worldwide. The Special Rapporteur also notes that, in many states, systems in place for sanctioning violations of relevant legislation relating to social media are ineffective. He notes with regret that very few cases of hate speech have been sanctioned by justice systems, and also that the conviction rate remains very low.

The Special Rapporteur concludes with concern over the increased use of the internet and social media to promote and disseminate racist content. His report includes a dedicated recommendation on racist or xenophobic discourse online:

States should take all opportunities to counter the dissemination of ideas based on racial superiority or hatred, and to promote the values of equality, non-discrimination, diversity and democracy, while respecting their obligations under articles 19 and 20 of the International Covenant on Civil and Political Rights. While taking measures to counter extremist ideas and biases, States should endeavour to strengthen freedom of expression, which plays a crucial role in promoting democracy and combating racist and xenophobic ideologies.

The Special Rapporteur’s report on his visit to Greece notes that he was informed that hate speech was present in the media and on the internet and social media platforms; it usually went largely unchecked and unpunished, as effective self-regulatory mechanisms seemed to be lacking.

The report of the panel discussion on the incompatibility between democracy and racism provides a summary of the 18 March 2016 panel discussion during the 31st session of the HRC. The relationship between the internet, democracy and racism was raised by a number participants in the discussion.

The Deputy High Commissioner encouraged states to use all opportunities, including those provided by the internet and social media, to counter the dissemination of ideas based on racial superiority or hatred and to promote the values of equality, non-discrimination, diversity and democracy. One delegate pointed to the need to prosecute those who promoted hate speech, including through the internet, noting that the internet is the reflection of the real world. If states were strict with their legislation, they should be able to apply the same standards with regard to crimes committed through online platforms. Some delegates stated that governments ought to show solidarity with victims of racial discrimination and protect them efficiently. They felt that the rise in hate speech, especially online, required specific attention and enhanced measures. Several delegates referred to new formats for the dissemination of hate speech, for example, through social networks, and pointed out that this phenomenon was difficult to control. However, technology should not be used for criminal aims but rather to promote mutual respect, equality, equity, diversity and democracy.

The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance will present his report followed by the general debate on racism, racial discrimination, xenophobia and related forms of intolerance, follow-up and implementation of the Durban Declaration and Programme of Action on 27 June (13-15h CET).

Universal Periodic Review

The following outcomes of UPR reviews are being adopted at HRC32, which include recommendations relating to the internet and human rights.

“Monitor and address rampant hate speech on the social media, especially that is directed at Muslims and refugees in public and political debates and manifested in Islamophobia (Pakistan).”

“Undertake a review of the communications surveillance laws, policies and practices with a view to upholding the right to privacy in line with international human rights law (Brazil).”

“Promote responsible freedom of expression and effectively use the Cyber Security Strategy of Latvia 2014-2018 as a platform to combat hate crimes in the virtual environment (Malaysia).”

“Respect freedoms of expression and association, both online and offline, particularly leading up to this year’s elections, and release political detainees (United States of America).”

“Review its legislation in order to protect and promote the right to freedom of opinion and expression, including on the Internet, also providing protection to journalists against harassment by police and other authorities (Brazil)”

“Ensure freedom of assembly and association, freedom of opinion and expression, including on the Internet, and protect freedom of the press (France);” “Ensure that freedom of opinion and expression are encouraged and protected, including for individuals and organizations communicating via online public platforms (New Zealand);” and “Ensure the full enjoyment of the right to freedom of expression and to peaceful assembly and revise its national legislation, inter alia the Internal Security Act and the Newspaper and Printing Presses Act, in order to eliminate media censorship and prevent self-censorship, in this regard, protect bloggers from persecution and harassment for the exercise of their human rights (Czech Republic).”

NGO side events relating to internet rights

Ending violence against women and ensuring an enabling environment for WHRDs, organised by the Association for Women’s Rights in Development (AWID) and the International Service for Human Rights. Monday, 13 June, 13:00 – 14:30, Room XXIV

Access to Information and Human Rights, organised by Article 19 and the Permanent Missions of Norway and Mexico. Tuesday 14 June, 16:00 – 17:30, Room XXIII

The Internet, Free Expression and Private Actors, organised by APC, Article 19 and Global Partners Digital, and in association with the Freedom Online Coalition Working Group 3. Wednesday 15 June, 12:00 – 13:00, Room IV

Consult, Respect, Protect. Including human rights defenders in National Action Plans on business and human rights, organised by the International Service for Human Rights and the International Corporate Accountability Roundtable. Wednesday 15 June, 16:00 – 17:30, Room XXIII

Into Thin Air: Vanishing space for freedom of assembly and association online and offline in Asia, organised by APC and FORUM-ASIA. 16 June, 15:00- 16:00, Room IX

Safety of Journalists: Enhancing implementation, advancing digital security, and protection of journalists’ sources, organised by Article 19, together with the Permanent Mission of Austria to the United Nations in Geneva, Thursday 16th June, 16:00 – 17:30, Room XXIII

Protecting civil society space through a Model National Law on the protection of human rights defenders, organised by the International Service for Human Rights. Tuesday 21 June, 15:00 – 16:00, Room XXIII



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