Internet rights at the Human Rights Council 34th session
The 34th session of the Human Rights Council (HRC 34) will take place from 27 February to 24 March 2017 in Geneva. Internet rights remain at the forefront of the HRC agenda, with the Council scheduled to discuss the Report of the Special Rapporteur on the right to privacy regarding oversight of government surveillance programmes, and debate a new resolution on the right to privacy in the digital age. The HRC will also review reports by the High Commissioner for Human Rights and the Special Rapporteur on the promotion and protection of human rights while countering terrorism that encompass an array of internet rights issues as they intersect with countering violent extremism, such as the right to privacy and threats posed by indiscriminate government surveillance. Meanwhile, data collection and disaggregation, ICT accessibility and connectivity, and social media hate speech and silos appear in several reports up for discussion.
Additional resolutions worth watching this session include the resolution on human rights defenders (HRDs), to renew the mandate of the Special Rapporteur on HRDs, a topic that has faced rising challenges in recent years by states that wish to undermine and discredit the role of HRDs in society; a procedural resolution on freedom of expression to renew the mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; a resolution on transnational business corporations and human rights; and a resolution on freedom of religion or belief, which may draw out divergent views among member states on the limitations to freedom of expression in the name of religion, an issue that is increasingly playing out in online spaces.
Some other relevant developments set to take place during this session are the appointment of a new Special Rapporteur on the rights to freedom of peaceful assembly and of association, as well as the adoption of outcomes of the Universal Periodic Review for a number of states, including the following that address internet rights: the Republic of Moldova, Togo, Uganda, the Bolivarian Republic of Venezuela, and Zimbabwe.
The Twitter hashtag for the session is #HRC34, and plenary sessions will be live streamed and archived here.
Reports from this session relating to the internet and human rights
Report of the Special Rapporteur on the right to privacy
In his second report to the HRC, the Special Rapporteur on the right to privacy, Joseph Cannataci, focuses on governmental surveillance activities from national and international perspectives. The Special Rapporteur also comments on recent developments and trends, flagging areas of concern, and examines at length the desirability and possibility of a “multilateral agreement enshrined in international law” to govern cross-border data requests in criminal matters, at minimum, and even to regulate “surveillance in cyberspace” more broadly. Cannataci proposes that such a legal instrument would be “good for citizens, good for governments, good for privacy and good for business,” though he notes that he has not yet formed a position on the matter.
The Special Rapporteur observes that “the status of the right to privacy in the surveillance sector has not improved” in the past year, despite developments at the UN, in legislatures, and via judicial rulings in support of the right. He also notes a number of positive and negative trends. Cannataci extols the Court of Justice of the European Union decision finding blanket data retention mandates to violate fundamental rights, and asks for governments to submit data backing their claims that such retention is necessary and proportionate to achieving legitimate aims. The Special Rapporteur expresses concern over moves by authorities “to censor information of public interest on the grounds of data protection” – which we are seeing in various implementations of the “right to be forgotten” including in India – and asks for stakeholders to submit instances of such abuses for a possible future report.
Cannataci makes a strong case for using reasonable suspicion and not citizenship as the basis for targeted surveillance, arguing that territoriality is not material in fundamental rights determinations. “Surveillance activities, regardless of whether they are directed towards foreigners or citizens, must only be carried out in compliance with fundamental human rights such as privacy.” He also notes that the collection and analysis of metadata often lacks necessary safeguards and contends that, like the interception of traditional communications, it should be “subject to judicial authorisation before the measure can be employed”. He suggests that judges receive training and support to understand the technological implications of their decisions.
Regarding the focus of the report, the Special Rapporteur considers “better thought-out and better-resourced oversight of intelligence activities” will protect the right to privacy worldwide. He adds, “these oversight mechanisms will have a strong basis in detailed and strict domestic laws that provide only proportionate measures necessary in a democratic society, and spelling out appropriate safeguards within the same law. These laws should also entrench effective oversight (…) by properly resourced and independent oversight authorities.”
On transparency and remedy, Cannataci states, “the Snowden revelations and their aftermath have clearly shown that there is a pressing need for government authorities to explain their work,” first by giving subjects of surveillance notice and the chance to access, alter and delete data that governments hold on them. The public at large, too, needs some disclosures to trust and verify that proper oversight of intelligence apparatuses takes place.
The Special Rapporteur issues several recommendations. First, speaking to the wave of “populist” laws, he finds that “extremely privacy-intrusive measures that have been introduced by new surveillance laws in France, Germany, the UK and the USA” are based on the politics of fear, rather than evidence that they will be effective or proportionate; he calls on states to “desist from playing the fear card.” Second, “all member states of the UN should engage in the painstaking discussion of oversight of intelligence” as begun via his conference, the International Intelligence Oversight Forum, which he intends to hold annually. Third, he calls for the protection of the right to privacy of “everybody, everywhere”, calling on the US, as an example, to target its surveillance on the basis of reasonable suspicion and not citizenship. And finally, as noted above, the Special Rapporteur encourages deliberation over the desirability of a new international mechanism in late 2017 through 2018, and advises “executive branches of government to be given a mandate by their parliaments (…) to actively explore such options for proper regulation of surveillance and the introduction of privacy-friendly safeguards and remedies in cyberspace.”
In choosing his formal country visits, the Special Rapporteur notes that the government’s surveillance activities are a principal consideration, especially for his upcoming trips to the United States of America (19-24 June 2017), France (requested for 13-17 November 2017), the United Kingdom (late 2017, possibly 11-17 December), Germany (requested for 29 January-2 February 2018) and South Korea (3-15 July 2018).
The Report of the Special Rapporteur on the right to privacy will be discussed on Tuesday, 7 March, 12:00-15:00 CET.
The High Commissioner will present a report on best practices and major challenges in confronting the negative effects of terrorism on the enjoyment of human rights and fundamental freedoms. The report begins by applying the international human rights framework to terrorist acts, reaffirming the state’s positive obligation to prevent killings of citizens by private individuals and non-state actors. The High Commissioner underscores the need for a comprehensive and legally viable approach to countering terrorism and violent extremism grounded in human rights, and observes that strategies that fail to abide by international human rights law neglect the values they claim to uphold while stimulating additional violence and terrorism.
In the section on terrorism and counter-terrorism associated human rights challenges, the High Commissioner summarises an array of negative effects of terrorism on human rights, including the impact on the right to privacy. The report notes that digital communications technologies have been exploited for criminal purposes, which can justify targeted, lawful surveillance by a state that demonstrates respect for the right to privacy and other human rights obligations. However, the threat posed by terrorism is too often used to rationalise over-intrusive surveillance programmes that threaten individual privacy. Aligning himself with special procedure mandate holders and treaty bodies, the High Commissioner expresses concern about the potential for abuse, and notes that the use of communications technologies by terrorists does not override the state’s commitment to protect the right to privacy.
The report proceeds to walk through a series of grievances pertaining to specific pieces of draft legislation, including insufficient awareness on the part of the surveilled to issue a complaint in one case and an insufficiently low suspicion threshold for interference in another. While none of the High Commissioner’s recommendations explicitly pertain to digital communications technologies, they re-emphasise the need for accountability and regular review of the human rights implications of counter-terrorism and violent extremism projects, which certainly applies to state and law enforcement surveillance activities.
Thematic reports of the United Nations High Commissioner for Human Rights will be discussed on Thursday, 9 March, 12:00-15:00 CET.
The aspects of the report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Ben Emmerson, that address technology and the internet focus on government surveillance and impacts on the right to privacy. The Special Rapporteur welcomes court rulings finding that legislation requiring mandatory retention of data – whether metadata, traffic data, location data, or otherwise – fails to comply with European law. Specifically, the European Court of Human Rights finds blanket retention mandates are not grounded in demonstrable “reasonable suspicion,” and fall short of the international human rights law test for proportionate measures, Emmerson finds. Likewise, he welcomes rulings in the US, UK and Germany against indiscriminate collection and analysis of data without proportionality, foreseeability or imminence.
The Special Rapporteur continues: “These limitations have not, however, removed the serious and continuing concerns around extraterritorial mass surveillance programmes, and proliferation of laws that authorize asymmetrical protection regimes for nationals and non-nationals” as in Germany, France and the US. “The Special Rapporteur recalls that differential treatment of nationals and non-nationals, and of those within or outside a State’s jurisdiction, is incompatible with the principle of non-discrimination, which is a key constituent of any proportionality assessment.” As for procedural safeguards and oversight, “prior judicial authorization of surveillance should be the norm.” Secrecy and lack of transparency continue to be impediments to meaningful accountability and redress for victims of unlawful surveillance.
On the UK Investigatory Powers Act 2016, Emmerson appreciates that it “at least made explicit and public provision for digital surveillance in primary legislation that was amenable to parliamentary debate.” However, the Act “enshrines very broad targeted and bulk powers, including bulk interception, bulk acquisition, bulk equipment interference, ‘thematic’ warrants and mandatory retention,” without adequate judicial supervision. Similarly, he notes that a 2015 law in France allows authorities to intercept communications and to require telecommunications carriers and internet service providers to install “black boxes” on their networks, again without adequate oversight. Many other countries are considering similar laws.
Emmerson also examines the use of armed drones briefly, noting that it is not inevitably unlawful, but it must be subject to clear and public principles circumscribing their use, including transparency.
Strikingly, the Special Rapporteur does not make substantive recommendations on the themes of his report. Rather, he calls for institutional reform, because the current situation, with a single office to ensure protection of human rights while countering terrorism across the UN, has “become unsustainable.” Emmerson strongly recommends the establishment of a new office of “Under-Secretary-General for counter-terrorism coordination” with the core responsibility to work closely with the OHCHR for the promotion and protection of human rights.
The Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism will be discussed on Thursday, 2 March, 15:00-18:00 CET.
In his first report to the HRC, the new Special Rapporteur on freedom of religion or belief, Ahmed Shaheed, identifies persistent challenges and implementation gaps concerning the exercise of the right to freedom of religion or belief. Among them, he includes preventing incitement to violence that could lead to atrocity crimes. Shaheed cites the Fez declaration and draft plan of action, which identify a number of activities that community leaders representing different religions or beliefs could undertake to prevent and counter incitement to violence in situations that risk leading to atrocity crimes. These options include engaging in dialogue with those who express radical views, countering online and offline incitement speech though unequivocal messaging, and supporting interfaith dialogue, education and activities that uphold respect for religious pluralism.
The Report of the Special Rapporteur on freedom of religion or belief will be discussed on Monday, 6 March, 12:00-15:00 CET.
While the Special Rapporteur on the situation of human rights defenders, Michel Forst, does not explicitly examine the internet dimension of his mandate in his current report, he reports that three years into his mandate, he has become convinced that attacks against “bloggers, indigenous peoples, journalists, community leaders, whistle-blowers and community volunteers” are multiplying. Worse, he states, these attacks are not isolated incidents but rather concerted campaigns against those fighting for the ideals of the UN Charter.
Reinforcing Forst’s point, the Report of the High Commissioner on the situation of human rights in Libya noted a number of instances where bloggers were detained, denied access to a lawyer and family visits, abducted by armed groups, tortured, and disappeared, for their writing and activism online. Likewise, the Report of the Special Rapporteur in the field of cultural rights noted the murder, likely by Islamist militiamen, of a Libyan civil rights activist, blogger and leading member of a group dedicated to education, music and the arts.
The report outlines the working methods and activities of the Special Rapporteur over the past three years. Forst states, “While there is no denying the current plight of defenders, the Special Rapporteur is conscious of the many initiatives carried out by committed individuals and institutions determined to improve the situation of defenders. He is convinced, now more than ever, of the need to develop synergies between the complementary roles of all stakeholders.” Echoing the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Forst sees a “moral responsibility” to take urgent action, calling for greater coordination and more resources, in a holistic approach to protection of human rights defenders. He gives specific recommendations to states, the UN itself, national human rights institutions, and civil society.
The Report of the Special Rapporteur on the situation of human rights defenders will be discussed on Thursday, 2 March, 12:00-15:00 CET.
The Secretary-General’s report on the realisation of all economic, social and cultural rights includes a section on “a human rights-based approach to data”, which notes that “the 2030 Agenda calls for a strengthened capacity to increase significantly the availability of high-quality, timely and reliable data disaggregated by income, gender, age, race, ethnicity, migratory status, disability, geographic location and other characteristics relevant in national contexts.” The Secretary-General’s report also recognises that collecting and disaggregating (or not disaggregating) data involve critical decisions that can pose substantial risks to the protection of the rights of the populations concerned. Those decisions need to be taken through appropriate processes, upholding human rights norms and principles, including the right to privacy and confidentiality of individual identification. Specifically, the report notes concerns relating to big data and surveillance and recommends that strategies for preventing and mitigating data leaks or security breaches be put in place.
Thematic reports of the Secretary-General will be discussed on Thursday, 9 March, 12:00-15:00 CET.
Rights of the child
HRC34 includes the annual full-day discussion on the rights of the child. A number of internet rights issues are likely to come up in this discussion, which will take place on Monday, 6 March.
The annual report of the Special Representative of the Secretary-General on Violence against Children highlights the growing concern of cyberbullying, as access to information and communications technologies and the wide use of smartphones by children and young people are increasing. The Special Representative recognises that the ASEAN Regional Plan of Action on the Elimination of Violence against Children, which is framed by the 2030 Agenda, provides a powerful example of how regional cooperation can support national action on the protection of children from violence and advance progress to achieve the violence-related Sustainable Development Goal targets, with its proposal of concrete actions within a realistic time frame, including among other things, the protection of children from online abuse.
In this report, the High Commissioner outlines what a human rights approach to data and monitoring to achieve the 2030 Agenda would look like, and notes that the risks of data disaggregation to the protection of children’s rights must also be addressed, particularly in relation to its uses and the protection of the right to privacy. Specifically, the report suggests, “Proactive measures are needed to support participatory forms of social accountability, for example through the provision of safe spaces online and offline for children to prepare their views and inputs; timely, accessible information in formats and languages that children can understand; and formal mechanisms at all levels through which their input on the realization of their rights can be heard and acted upon by decision makers.”
Disaggregated data and human rights
In addition to the reports examined in detail above, a number of reports identify the need for and/or the power of disaggregated data, such as the following:
Universal Periodic Review
The following outcomes of UPR reviews scheduled to be adopted at HRC34 include dialogue and recommendations relating to internet rights.
Togo, whose UPR outcome is scheduled to be adopted on Thursday, 16 March, 9:00-12:00 CET, did not support the following recommendations:
Guarantee the right to freedom of expression, association and peaceful assembly and the right to participate in public and political life. To reach this goal, amend all laws violating these rights and bring them in line with international human rights standards, namely the Criminal Code, the Press and Communication Code and Law No. 2011-010 on freedom of assembly and public and peaceful demonstrations (Germany).
Modify the provisions of the Penal Code relating to freedom of expression, such as those relating to defamation and publication of false news, in order to be consistent with international and regional human rights instruments (Switzerland).
The Bolivarian Republic of Venezuela received several recommendations to strengthen freedom of the media and press, in addition to recommendations more specific to internet issues included below.
The Bolivarian Republic of Venezuela will respond to the following recommendations during the adoption of its UPR outcome on Thursday, 16 March, 9:00-12:00 CET:
Guarantee the right to privacy of private and personal communications according to international standards (Kenya).
Bring all legislation concerning communication surveillance in line with international human rights standards and, especially, ensure that all communications surveillance are tested for necessity and proportionality (Liechtenstein).
Continue with the successful policies for the democratization of the radio spectrum, by granting concessions to community media (Nicaragua).
Ensure the rights to freedoms of expression, association and peaceful assembly, both online and offline, in particular by revoking the use of military force to control public order and ceasing State security raids such as Operation Liberation and Protection of the People (Canada).
Continue the improvement and enhancing of the use of information and communications technologies in education (Qatar).
Zimbabwe received the following recommendations, which it will respond to during the adoption of its UPR outcome on Thursday, 16 March, 12:00-15:00 CET:
Ensure that its legislation is in line with the new Constitution and the rights concerning freedom of expression and freedom of media therein, repeal the Access to Information and Protection of Privacy Act and the Public Order and Security Act, and license independent broadcasters (Sweden).
Immediately publish a timeline ensuring that legislation, including the Public Order and Security Act, the Access to Information and Protection of Privacy Act and relevant electoral legislation, will be aligned with the Constitution before the end of the eighth session of Parliament (United Kingdom of Great Britain and Northern Ireland).
Amend the draft computer crime and cybercrime bill and the Public Order and Security Act so as to align them with the 2013 Constitution (Australia).
Repeal or significantly reform laws that may have the effect of unduly restricting freedom of expression and the right to peaceful assembly, which include the Public Order and Security Act, the computer crime and cybercrime bill and police bans on protests (United States of America).
Ensure that upcoming legislation will not limit citizens’ rights to engage in free and private exchanges of information on social media (Norway).
Uganda, whose UPR outcome is scheduled to be adopted on Thursday, 16 March, 15:00-18:00 CET, received and accepted the following recommendation:
Improve the transparency of the electoral process, provide equal conditions for all candidates, prevent obstruction of the media and the Internet, and ensure the independence of the Electoral Commission and impartial investigation of allegations of election fraud and violence (Czechia).
Uganda also received the following recommendation, which it did not support:
Amend Section 44 of the Non-Governmental Organizations Act, 2016, to ensure its compliance with the national constitutional requirement that every criminal offence be well defined and adopt NGO Act regulations to enable and protect the rights to freedom of expression, peaceful assembly and association, both online and offline (Canada).
The Republic of Moldova received several recommendations pertaining to media consolidation, independence and pluralism, which it accepted. The Republic of Moldova also accepted the following recommendations more specific to the internet:
Ensure strengthening of freedom of expression online and offline, as well as personal data protection (Bulgaria).
Take necessary measures to reduce excessive concentration of media ownership, and develop a new regulatory framework for the creation of new media and the operation of existing ones, in order to ensure genuine freedom of expression (Spain).
The Republic of Moldova additionally received the following recommendation, which it will respond to during the adoption of its UPR outcome on Thursday, 16 March, 15:00-18:00 CET:
Take concrete measures to address the issue of self-censorship among Moldovan journalists, limit media ownership concentration and ensure media pluralism (Norway).
Side events relating to internet rights
Backsliding on civic space in democracies organised by Amnesty International, CIVICUS, International Federation for Human Rights (FIDH), World Organization Against Torture (OMCT) FORUM ASIA, HRDA, Human Rights Watch, IDSN and the International Service for Human Rights. This event is scheduled for Friday 3 March, 13:00 – 14:00, Room XXI.
Democracy and Surveillance organised by the International Center for Non-Profit Law, This event is scheduled for Monday 6 March, 15:30-17:00, Room XXII
Privacy and freedom of expression organised by Article 19 and the Missions of Brazil, Germany, Liechtenstein, Norway, and Switzerland. This event is scheduled for Tuesday, 7 March 11:00-13:00, Room XXIV.
Human Rights Defence and Blogging in Bangladesh, organised by the Association for Progressive Communications, Frontline Defenders, and FORUM ASIA. This event is scheduled for Tuesday, 7 March, Time/Room TBC.
Turkey: Justice and Journalism organised by Article 19, Human Rights Watch, International Rehabilitation Council for Torture Victims, Reporters Without Borders, PEN International and P24 This event is scheduled for Monday, 13 March 15h-16h30, Room XXVII
A provisional calendar of side events organised by NGOs is available here, but note it may be subject to change.