By Deborah Brown and Sebastián Becker Castellaro (APC) and Aurora A. Sauter (Access Now) Geneva, 09 September 2018
The 39th session of the Human Rights Council (HRC) is taking place on 10-28 September 2018 in Geneva. Relevant issues on the agenda this session for internet rights advocates include new reports from the Office of the High Commissioner for Human Rights (OHCHR) on the right to privacy in the digital age and on mechanisms concerned with ensuring the safety of journalists (as well as a resolution on this issue). The Council will also hold its first dedicated interactive dialogue on reprisals against human rights defenders on 19 September. There are a number of thematic and country-specific reports to be discussed this session which touch on internet-related human rights issues (detailed below), as well as a set of draft guidelines for states on the effective implementation of the right to participate in public affairs. Concerns relating to specific governments’ records on internet rights will be raised in the adoption of Universal Periodic Review (UPR) reports for Azerbaijan, Bangladesh, Cameroon, Cuba, Germany, the Russian Federation, Turkmenistan and Uzbekistan.
The Twitter hashtag for the session is #HRC39, and plenary sessions will be live streamed and archived at this link.
Side events relating to internet rights
12:00-13:00 “Accountability and the need to end impunity for human rights violations in Yemen”, organised by the Gulf Center for Human Rights, Room XXIV, Palais des Nations.
13:30-15:30 “Human Rights Council Elections 2018: Discussions of candidate States' visions for membership”, organised by the International Service for Human Rights (ISHR), Room XXII, Palais des Nations.
10:00-11:00 “Ending reprisals: Discussion with human rights defenders and experts”, organised by ISHR, Room XXV, Palais de Nations.
14:00-15:00 “Activism is not a crime: Confronting criminalisation of defenders”, organised by ISHR, Room XXVII, Palais des Nations.
13:00-14:.00 “Confidentiality of communication and privacy of data in the digital age”, organised by Privacy International, Room XV, Palais des Nations.
13:30-15:00 “New technologies and human rights”, organised by the Permanent Mission of the Republic of Korea, United Nations Research Institute for Social Development (UNRISD) and OHCHR, Room XXIII, Palais des Nations.
Reports from this session relevant for human rights online
New report from High Commissioner for Human Rights highlights manifold challenges to the right to privacy in the digital age, reaffirms international human rights framework as basis for addressing them
As mandated by the last HRC resolution on the right to privacy in the digital age, the OHCHR drafted a report (A/HRC/39/29) that highlights and provides guidance on how to address some of the pressing challenges to the enjoyment of the right to privacy in the digital age. The report, which draws on discussions at an expert workshop held in Geneva in February 2018 and written inputs from a range of stakeholders, maintains that the right to privacy is not limited to private spaces but extends to public spaces and information that is publicly available. The report also reaffirms that limitations on the right to privacy must comply with the principles of legality, necessity and proportionality, and understands privacy as a central human right for the enjoyment and exercise of other human rights, both online and offline, including freedom of expression, freedom of assembly and the prohibition of discrimination.
The report includes a section analysing global trends and concerns regarding interference with the right to privacy, covering both the “increased reliance on personal data by governments and business enterprises” and “state surveillance and communication interception”. This section underlines how both businesses and governments are increasing their use of personal data, including biometrics and the “ranking” or “scoring” of individuals without clear protections for privacy and other human rights. The report reinforces that mass surveillance “is not permissible under international human rights law” and raises, among other issues, government hacking, efforts to weaken encryption and anonymity, and intelligence sharing among states as particularly concerning with regard to the protection of human rights.
The report highlights the importance of states adopting “legislative and other measures to give effect to the prohibition of and protection against unlawful and arbitrary interference and attacks, whether they emanate from State authorities or from natural or legal persons.” The latter is a key point, as it calls on states to protect privacy against “adverse human rights impacts involving companies”. That includes extraterritorial effects, which means states should “have in place export control regimes applicable to surveillance technology”, assess “the legal framework governing the use of the technology in the destination country” and “protect persons within their jurisdiction from extraterritorial interference(s)”. In addition, the report points to a “growing global consensus on minimum standards that should govern the processing of personal data by States, business enterprises and other private actors,” and provides an overview of relevant instruments and the principles contained within them.
In terms of surveillance and communications, the report highlights that intelligence agencies should not be excluded from “the provisions of data privacy legislation” and must be guided by “minimum standards”, namely the principles of legality, strict necessity and proportionality. The report goes on to note that surveillance measures “should be authorized, reviewed and supervised by independent bodies […], preferably a judicial authority,” and that state authorities and oversight bodies should also “engage in public information about the existing laws, policies and practices in surveillance.” It is interesting to note that “independent bodies” are not necessary judicial authorities, and there is not a single reference to due process; judicial bodies are the proper authorities to justify and clarify the principles of legality, necessity and proportionality and ensure the basic right to due process.
The report characterises the UN Guiding Principles on Business and Human Rights as an “authoritative blueprint for all enterprises, regardless of their size, sector, operational context, ownership and structure, for preventing and addressing all adverse human rights impacts, including the right to privacy.” That includes responsibility for carrying out due diligence to identify and address any impact of their activities, risk mitigation with strong human rights safeguards, and access to effective remedy for rights violations committed by states or business enterprises. Among the examples highlighted in the report with respect to private sector responsibility are companies’ selling of surveillance technology, collecting and retaining user data, adoption of terms of service and design and engineering choices, and decisions taken to provide or terminate services in a particular context. The report highlights that states and business enterprises should consider mechanisms for users to challenge decisions reached on the basis of algorithms.
The report concludes by reinforcing the point that the international human rights framework provides a strong basis for shaping the responses to the manifold challenges arising in the digital age, and calls on states to implement their obligation to respect the right to privacy, including vis-à-vis corporate abuses. It also notes that a number of relevant issues were not covered in this report, including the interrelationships of the right to privacy with other human rights, including economic, social and cultural rights, and the disproportionate or discriminatory impacts of privacy invasions on individuals and/or groups at risk. Finally, the report provides recommendations from the High Commissioner to states and business enterprises on a range of issues, including privacy legislation and data privacy, data intensive systems, including the collection and retention of biometric data, communications surveillance, intelligence sharing, access to effective remedy, security and confidentiality of communications, and transparency of the private sector.
Widespread human rights violations and abuses in Myanmar, with social media playing a significant role
The report of Independent International Fact-Finding Mission on Myanmar, which was published in late August, will be presented during HRC39. The report found patterns of gross human rights violations and abuses committed in the states of Kachin, Rakhine and Shan that “undoubtedly amount to the gravest crimes under international law,” principally by Myanmar’s military, the Tatmadaw, but also by other security forces. It urged that Myanmar’s top military generals, including Commander-in-Chief Senior-General Min Aung Hlaing, must be investigated and prosecuted for genocide in the north of Rakhine state, as well as for crimes against humanity and war crimes in Rakhine, Kachin and Shan states.
The report noted that the role that social media has played in contributing to these violations is significant. According to the Mission, "Facebook has been a useful instrument for those seeking to spread hate, in a context where for most users Facebook is the Internet. Although improved in recent months, Facebook’s response has been slow and ineffective. The extent to which Facebook posts and messages have led to real-world discrimination and violence must be independently and thoroughly examined. The Mission regrets that Facebook is unable to provide country-specific data about the spread of hate speech on its platform, which is imperative to assess the adequacy of its response.” The report characterised the government’s response to hate speech as inadequate. The Mission was "deeply disturbed by the prevalence of hate speech, offline and online, often including advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence,” which has accompanied outbreaks of violence, especially in Rakhine state.
Following the release of the report, Facebook announced that it was blocking the account of Senior-General Min Aung Hlaing and 19 other individuals and organisations "to prevent them from using our service to further inflame ethnic and religious tensions.” It removed a total of 18 Facebook accounts, one Instagram account and 52 Facebook Pages, followed by almost 12 million people. It also said it would be preserving data, including content, on the accounts and Pages it had removed.
Draft guidelines on the implementation of the right to participate in public affairs encourage the use of ICTs to strengthen equal and meaningful participation
In 2016, the HRC requested the High Commissioner for Human Rights to develop guidelines on the implementation of the right to participate in public affairs. The draft guidelines (HRC/39/28), which will be presented during HRC 39, stress that information and communications technologies (ICTs) offer new tools for participation and expanding the space for civic engagement, and have the potential to promote more responsible and accountable governments. The draft guidelines characterise ICTs as complementary to traditional forms of participation, creating additional opportunities for equal and meaningful participation. The guidelines also recognise that ICTs alone are not a solution and can even negatively affect participation through disinformation and propaganda, interfering with the right to seek and receive information.
The report highlights that ICTs can improve participation in elections and enhance transparency, but they should only be introduced after broad outreach and consultations with all stakeholders. The design and introduction of technologies should be guided by human rights law, with special attention to gender equality and implementation of measures to close digital divides, especially for persons with disabilities, older persons, persons living in rural areas and indigenous peoples (see paragraphs 87-94 of the report). In line with this, ICT tools for participation should be translated into multiple local languages, including languages spoken by minorities and indigenous peoples, and should ensure their accessibility for persons with disabilities. ICTs should also create “real opportunities to influence decision-making processes” such as submitting or voting on legislative and policy proposals. Finally, the guidelines state that media and ICT education curricula should “address issues related to hate speech, xenophobia, sexism and harmful gender stereotypes,” and notes that “the role of civil society actors, including the media, in delivering positive counter-narratives online, including against hate speech, should be supported.” The report concludes that the use of ICT tools should be encouraged “to foster greater and more diverse participation of civil society actors at the international level.”
Independent Expert highlights the role of data in social exclusion faced by older persons
The report of the Independent Expert on the enjoyment of all human rights by older persons (A/HRC/39/50), Rosa Kornfeld-Matte, examines the impact of the social exclusion of older persons, which includes reflecting on the exclusions deepened by data collection and gaps in digital literacy. For example, the Independent Expert notes that data and measurement constitute a challenge for the implementation of the Sustainable Development Goals, as data sets may reflect outdated, biased or incomplete views about older age. Intersecting characteristics, such as being an older woman, an older migrant or an older person with a disability, are not necessarily accounted for. Data sets on poverty often fail to capture the real extent of the poverty older persons face. The report also highlights that when modern, ICT-based alternatives for pension distribution are implemented, due consideration must be given to accessibility for older persons, bearing in mind challenges relating to information technology literacy rates.
In her report on her mission to Georgia, the Independent Expert encourages the government of Georgia to ensure nationwide, systematic and regular collection of disaggregated data on impediments to the enjoyment of all human rights by older persons, such as any forms of discrimination based on age as sole or accumulated criterion, on exclusion, poverty and on all forms of violence, abuse and maltreatment. Given that data must be used sensibly to avoid stigmatisation and potential misuse, particular care should be exercised when collecting and analysing data to respect and enforce data protection, informational self-determination and privacy, she notes.
In her report on her mission to Montenegro, the Independent Expert reflects on legislative developments, including the adoption in 2015 of a new Law on the Prohibition of Discrimination of Persons with Disabilities. The law establishes new standards relevant to older persons with disabilities and regulates, among others, the issue of privacy, i.e. violation of privacy and interference in personal and family life and the misuse of data. The Independent Expert also notes the introduction of a new, innovative information system, the so-called Social Welfare Information System, which aims to re-engineer, improve and upgrade the capacities of the 13 social welfare centres in charge of conducting needs assessments of older persons. She advises that due consideration must be given to older persons’ accessibility, bearing in mind challenges relating to their information technology literacy, and once again warns that given that data must be used sensibly in order to avoid stigmatisation and potential misuse, particular care should be exercised when collecting, storing and analysing data to respect and enforce data protection and privacy.
Lack of disaggregated data presents a challenge to the realisation of the right to development
The report of the Special Rapporteur on the right to development (A/HRC/39/51), Saad Alfarargi, explores the connection between the right to development and equality. He identifies the limited availability of adequate data that is disaggregated by, inter alia, gender, age, disability, income, race and ethnicity as an issue that needs to be addressed urgently. Likewise, the OHCHR report on the rights of indigenous peoples (A/HRC/39/37) also notes that the collection of disaggregated data continues to be essential for a comprehensive assessment of the extent and range of the challenges confronting indigenous peoples today, and it remains, worldwide, largely insufficient. Only based on such data can evidence-based policies that specifically target those most in need be developed. The Special Rapporteur states that the collection of data to assess levels of inequality and discrimination should be carried out in accordance with a human rights-based approach, incorporating principles of participation, informed consent and self-identification, i.e. respect for the right of individuals to identify themselves as members of a minority or indigenous people. The Special Rapporteur recommends consultations with relevant stakeholders, including civil society organisations with relevant expertise who could engage in data collection exercises at the community level. This could not only contribute to reducing the cost of data collection but also empower communities to participate in informing development policies at the local level.
Inclusive use of ICTs is critical to ensure the equal participation of young people
Similar to the report on the right to participate in public affairs, the OHCHR report on youth and human rights (A/HRC/39/33) highlights the need to seek alternatives to traditional voting and make better use of ICTs to ensure the equal participation of young people. Those mechanisms should be “accessible and include young women and men from all backgrounds and take into account how intersecting forms of discriminations affect the ability of all youth to participate, in particular youth with disabilities, lesbian, gay, bisexual, transgender and intersex youth and young migrants, as well as minority and indigenous groups and young people from disadvantaged socioeconomic backgrounds.”
Indigenous human rights defenders subject to surveillance
The report of the Special Rapporteur on the rights of indigenous peoples (A/HRC/39/17), Victoria Tauli-Corpuz, is a thematic study on attacks against and the criminalisation of indigenous human rights defenders. The report emphasises that indigenous human rights defenders, institutions and organisations have been subjected to illegal surveillance among other threats, including enforced disappearances, forced evictions, judicial harassment, arbitrary arrests and detention, limitations to the freedom of expression and freedom of assembly, stigmatisation, travel bans and sexual harassment. In terms of prevention and protection measures, the Special Rapporteur notes that the distribution of solar-powered telecommunications in remote areas to enhance protection is a measure useful for indigenous communities.
Social media used by non-state armed groups to recruit children according to Working Group on mercenaries
The report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (A/HRC/39/49) focuses on the recruitment of children by non-state armed groups, including mercenaries and private military and security companies. The report points to the use of social media as one means through which children under the age of 18 are recruited by foreign non-state armed groups. While there are a few cases where children seem to have joined armed groups “voluntarily”, research shows that, even if it appears voluntary to the individual child, from a psychological and social point of view children’s choice to join and remain in armed groups cannot be considered “voluntary”. For various reasons, children have no or limited access to information concerning the consequences of their choice.
Universal Periodic Review
The following outcomes of Universal Periodic Review (UPR) processes which include recommendations relating to the internet and human rights are being adopted at HRC39 on 20 and 21 September.
Azerbaijan received the following recommendations concerning human rights online, which it will respond to during HRC39:
141.37 Guarantee the rights to freedom of expression, both online and offline, freedom of association and peaceful assembly (Switzerland).
141.44 Create the environment for a free and independent media and take effective measures to ensure that the press and media can work free from oppression, intimidation or reprisals (Slovakia).
141.48 Let the internet remain an area for free speech, particularly by unblocking the opposition websites closed in the spring of 2017, and stopping the persecution of people voicing critical opinions online (Norway).
141.55 Ensure freedom of expression and media freedom, including by promptly and thoroughly investigating all allegations of the torture and ill- treatment of journalists, human rights defenders and youth activists, and prosecute perpetrators (Estonia).
141.57 Ensure freedom of expression and the press, in particular by reviewing the Law on Defamation and ceasing the blocking of opposition sites (France).
141.52 Permit peaceful civic activity by ending cases against NGOs and independent media, removing undue restrictions to accessing foreign grants and amending laws regarding the registration, operation, and funding of NGOs, in accordance with the recommendations of multilateral institutions, and ending the blocking of independent and opposition websites (United States of America).
Azerbaijan also received and supported recommendations from Belarus (140.72), Kuwait (140.82) and Myanmar (140.84) to expand new technologies in public services.
Bangladesh received and supported a number of recommendations concerning the exercise of freedom of expression, online and offline, including a recommendation from Canada (147.66) to take prompt and effective measures to ensure that freedom of assembly and expression extends in practice – both online and offline – to all people, media, civil society and political parties, throughout the upcoming election campaign and beyond; and from Ireland (147.68) to review all existing and proposed legislation relating to freedom of expression, both online and offline, to ensure that it fully complies with the relevant international standards.
Bangladesh also received a number of recommendations concerning the notorious Section 57 of its Information and Communication Technology (ICT) Act. Recommendations range from calling for the government to work with civil society to address concerns regarding Section 57 (147.67) from the United Kingdom, which the government supported, to calls to review and amend Section 57 (148.13 from Mexico and 148.3 from Australia), which Bangladesh will respond to during HRC39. Recommendations to repeal the ICT Act (149.49 from Greece and 149.50 from the Netherlands, as well as others) did not receive Bangladesh’s support.
Bangladesh’s Digital Security Act was also the subject of a number of recommendations. Estonia (147.69) and France (147.70) recommended that the government ensure that the Digital Security Act is in line with international standards and guarantees freedom of expression. Bangladesh supported these recommendations. Sweden recommended (148.15) that Bangladesh redraft the Digital Security Act in line with international norms and standards for freedom of expression, which Bangladesh will respond to during HRC39.
Bangladesh also received recommendations concerning the civic and democratic space. It supported a recommendation from Austria (147.75) to ensure that journalists, bloggers, human rights defenders and civil society organisations are able to carry out their activities without fear of surveillance, intimidation, harassment, arrest, prosecution or retribution. It did not support the recommendations from Czechia (149.47) concerning democratic space online and offline in which opposition politicians, journalists, human rights defenders and other civil society members can operate freely and without fear for their lives, and from Germany (149.48) to ensure that human rights activists and journalists can exercise their rights without fear, intimidation and harassment.
Finally, Bangladesh supported recommendations from India (147.72) and Azerbaijan (147.132) encouraging the government’s investment in ICTs in education and generally to improve the standard of living for youth.
Cameroon received a number of recommendations concerning freedom of expression, assembly and association, which it will respond to during HRC39, including the following, which concern the online dimensions of those rights:
121.120 Fully respect, protect and fulfil the rights to freedom of expression, association and of assembly, including by lifting restrictions on mobile and internet services unless provided for by law, and comply with international human rights law and standards on the use of force (New Zealand).
121.126 Respect the rights to peaceful assembly, and freedoms of association and expression, including when exercised online, and afford all of those detained all the rights enshrined in Cameroon’s constitution and under international law (United States of America).
Cuba received the recommendations from Czechia (24.8), Romania (24.199), the Plurinational State of Bolivia (24.166), the Bolivarian Republic of Venezuela (24.157), Malaysia (24.188), Lebanon (24.185), Benin (24.244), Myanmar (24.282) and Tunisia (24.334) concerning measures to expand internet access especially in rural areas. Australia (24.159) and Austria (24.161) recommended that Cuba remove any restrictions on internet access.
Cuba also received a number of recommendations concerning the enjoyment of freedom of expression without restrictions, including the following concerning online expression:
24.198 Take effective measures to ensure freedom of expression, of the press and of association, as well as affordable and unrestricted access to the internet for all (Poland).
24.199 Ensure low-priced access to internet facilities and complete freedom of expression online (Romania).
24.179 Guarantee freedom of opinion and expression, online and offline, including dissenting political opinions, and safeguard the activity of human rights defenders and journalists (Italy).
Cuba will respond to all of the above recommendations during HRC39.
Germany received the following recommendations concerning human rights online, which it will respond to during HRC39:
155.140 Ensure that the same rights persons have offline are also protected online (United States of America).
155.141 Observe carefully the effects of the Network Enforcement Act to ensure that the right to freedom of speech is not infringed upon in the process of combating online hate speech (Netherlands).
155.104 Intensively fight against actions that spread racially discriminatory or hate speech through the media and the internet (China).
155.164 Ensure proportionality in all the cases in which measures on surveillance and exchange of personal data between the authorities are undertaken, as well as necessity, in order to always achieve legitimate and legal objectives (Spain).
155.165 Take further appropriate action to fully end the surveillance of individuals domestically or in collusion with foreign entities, which violates particularly the right to privacy (Democratic People’s Republic of Korea).
The Russian Federation received a number of recommendations concerning freedom of expression, assembly and association, and religion or belief, and to reform legislation to conform with international human rights norms. Some recommendations called on the Russian Federation specifically to repeal the “foreign agent law” and to protect the rights of LGBTQ persons. Specifically concerning the online dimensions of these rights, the Russian Federation received the following recommendations:
147.153 Continue easing regulations on media coverage and internet censorship in order to secure and facilitate the exercise of freedom of expression (Japan).
147.161 Take the measures necessary to guarantee the full enjoyment of freedom of expression, in particular freedom of the press, and put an end to restrictions on access to some resources online (Luxembourg).
147.159 Ensure that anyone, including human rights defenders and journalists, can exercise their right to freedom of expression, including online, without fear of reprisal (Switzerland).
The United States of America and Sweden made the following recommendations specifically concerning the Yarovaya amendments:
147.65 Repeal laws that limit freedom of expression online and offline, including the so-called Yarovaya package of counter-terrorism legislation (Sweden).
147.67 Relinquish de facto executive control over the media, the parliament and the courts, and repeal or amend legislation used to criminalise normal societal discourse, such as that on “extremism”, foreign agents, undesirable foreign organisations, anonymiser bans, and internet blacklisting, as well as the “Yarovaya amendments”, which are used to criminalise normal societal discourse, so that all its laws are consistent with the Russian Federation’s human rights obligations and commitments (United States of America).
The Russian Federation will respond to all of the above recommendations during HRC39.
Turkmenistan received recommendations concerning the realisation of freedom of expression, generally, as well as with special emphasis on the internet and social media. While Turkmenistan did support a recommendation from Iraq on the enjoyment of freedom of expression generally (114.47), the government did not respond yet to any of the recommendations listed below, and will do so during HRC39:
116.62 Take measures to fully realise freedom of expression, including on the internet and social media (Republic of Korea).
116.60 Take concrete measures to protect and respect individuals’ rights to exercise freedom of religion or belief and freedom of expression, including on the internet, social media and in traditional media, including by preventing harassment of journalists operating in the country (United Kingdom of Great Britain and Northern Ireland).
Turkmenistan also received the following recommendations to ensure unhindered internet access:
116.65 Ensure unobstructed internet access and cease censorship of online media, including of foreign websites and communication applications. This includes the repeal of all provisions from the Law on the Regulation of the Development of the Internet and the Provision of Internet Services that require state licensing of the activities of internet providers (Netherlands).
116.70 Cease blocking access to internet sites and social media networks (Sweden).
116.67 Adopt measures, including through amending relevant laws, to ensure that the internet, television, radio and print media serve as a channel for receiving and transmitting independent public interest information in the country (Slovakia).
With respect to the importance of protecting human rights defenders and their work, including in the online environment, Turkmenistan received the following recommendations:
116.77 Ensure that human rights defenders and journalists are able to conduct their work and activities freely online and offline, and release all prisoners of conscience (Slovenia).
116.79 Stop threats to, physical attacks against and arbitrary detention and conviction of human rights defenders and individuals for exercising their freedoms of expression and assembly (Norway).
Uzbekistan received and supported the following recommendations concerning legal and unrestricted access to media, information and the internet:
101.95 Allow the media to operate without government interference, and ensure access to all sources of information, including foreign sources and the internet (Germany).
101.101 Bring legal provisions that restrict the right to freedom of expression and freedom of the media into line with Uzbekistan’s international human rights obligations, including by allowing effective access to information, also online (Sweden).
Uzbekistan also received a number of recommendations to expand efforts and measures to ensure the right to freedom of expression with special regard towards human rights defenders and NGOs from France (101.93), Ghana (101.96), Argentina (101.97), the United Kingdom (101.103), Lithuania (101.122), Switzerland (101.102) and Norway (101.98), all of which enjoy the government’s support.