15 April 2024
Welcome to the twelfth session of the course on International Human Rights. Today we are going to look at a new and emerging area for human rights: the Internet. How to apply international human rights conventions to the digital world, which is almost by definition, transborder, is an unresolved issue.
The general issue of the right to hold and present freely one's political and other views is enshrined in the Universal Declaration and the International Covenant of Civil and Political Rights.
As the readings for the session, in the website and in the course canvas, show, there is clearly a connection between the Internet and human rights, but the nature of the connection is complicated by the nature of the Internet, which is a "network of networks" built around software that allows messages to pass from communicator to receiver through varied paths. Unlike the telephone or the telegraph, the packets that make up Internet content can travel over many alternative channels and this has two consequences: the Internet is inherently transborder and individual states cannot easily control content. That doesn't prevent States from trying to control content, but it clearly makes it difficult. Patricia Vargas Leon's dissertation on the Internet kill switch shows that there are elements in the network structure that would enable states to shut down parts of the Internet, but not all within their borders. This was demonstrated clearly during the Arab Spring (or Arab Awakening).
However, States can try to control content, usually through pressure on the ISPs that connect individuals to the Internet, such as China's Great Firewall. Because of the transborder nature of the Internet, there is no consensus on what Internet governance involves at the international level. One institution, set up after the World Summit on the Information Society, is the Internet Governance Forum, made up of States, international institutions and non-governmental organizations that meets annually to try to resolve issues (like net neutrality). But this does not establish norms. This is shown in the Mid-term Evaluation of the IGF completed in 2022. So, internet governance is a work in progress.
There is, however, a connection with human rights in that most states agree that article 19 of the ICCPR is relevant to State obligations to allow individuals access to the Internet. Article 19 reads:
"2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
The relevance of this issue is found, recently, in the 2016 Resolution 32/13 of the Human Rights Committee.
Another of the human rights issues now in front of the Internet is that of privacy. This has been raised because of evidence of meddling with Facebook, one of the main communications platforms, where a political advisory company in the United Kingdom, Cambridge Analytica, obtained personal information from Facebook users and then applied this to the election in the United States. A question was raised whether this violated international norms of privacy. A similar situation emerged with regard to Facebook and Twitter. In fact, privacy norms are covered in different ways in international human rights instruments.
In the International Covenant, they are found in Article 17, which states: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation." This derives from Article 12 of the Universal Declaration which states: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
A new problem with the issue of rights to expression and the Internet is the use of what are now called “social networks” to provide false information that is available to all. In the past, the issue was related to mass media and there was some regulation. A famous US Supreme Court decision noted that freedom of expression did not extend to “shouting ‘fire’ in a crowded theatre”. How this applies to the Internet and who is to regulate it, beyond privacy, is still an open question. The connection of false information about COVID-19 and its vaccines is a notable example. So is the use of mass media in the Russian Federation about the Ukraine invasion, as an example of whether states have a right to repress information.
As the importance of the Internet in politics, economics and social behavior increases, there will be a need to carefully define State human rights obligations and how this will be done is also a work in process.
At the central level, the UN Secretary-General has created the post of Envoy on Technology to deal with all aspects of the Internet, including human rights. One element of this office’s work is to develop a Global Digital Compact to reach an agreement of all member states on how to address the Internet. It also deals with something agreed in 2020, a Roadmap for Digital Cooperation. At the level of the High Commissioner for Human Rights, one of the topics for discussion has been digital space and human rights. None of these, however, is a treaty.
There are two efforts to negotiate treaties that will deal with key aspects of the Internet. One of these deals with cyber-crime and is being negotiated by a special committee of the Third Committee of the General Assembly. This negotiation has already received some negative vibes, as in a 12 April 2023 media briefing by accessnow, an NGO. The negotiations are being supported by the UN Office on Drugs and Crime. The most recent session ended on 8 February 2024 without an agreement and decided to ask for an additional session. The second negotiation deals with cybersecurity and is being negotiated in the First Committee of the General Assembly and supported by the UN Office of Counter-Terrorism.
You should look at all of these elements for our discussions in class.