What’s on the agenda for digital rights at the United Nations? Here’s our joint review with the Association for Progressive Communications (APC) of the issues under discussion at 33rd session of the Human Rights Council (HRC33), taking place Sept. 12-30, 2016 in Geneva. Cross-posted at the APC website.
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The 33nd session of the Human Rights Council (HRC33) is taking place from 12-30 September 2016 in Geneva. This session will consider the human rights situations in a number of countries including Syria, Burundi, the Democratic Republic of the Congo, Yemen, Sudan, and Somalia, among others. In many of these countries, human rights violations extend to the online environment, through filtering of content, network shutdowns, targeting of activists and journalists for their online activities, and digital surveillance, which may come up in interactive dialogues at the council.
This session will also consider a number of thematic reports from Special Rapporteurs, Independent Experts, and the Office of the High Commissioner on Human Rights. A variety of reports recognize the importance of information and communications technologies (ICTs) to education, culture, peace building and tolerance, underscoring that young people as well as ageing communities require access and capacity building to benefit from ICTs. At the same time, the High Commissioner on Human Rights’ report on protecting and promoting human rights while preventing and countering violent extremism highlights that growing concern over terrorism and incitement to violence linked to ICTs leads many states to surveil, intercept, censor, and block access to communications tools. The High Commissioner stresses the need for human rights protections amidst the push to criminalize many uses of ICTs.
HRC33 will conclude with the adoption of a number of resolutions, some of which will likely touch on internet-related human rights issues, including on the safety of journalists, the protection of human rights and fundamental freedoms while countering terrorism, cultural rights in the protection of cultural heritage, and equal participation in political and public affairs. Concerns relating to specific governments’ records on internet rights will be raised in the adoption of Universal Periodic Review (UPR) reports on Hungary, Tajikistan, Tanzania and Thailand. This session will also see the appointment of a number of special procedures, including the newly created Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.
The Twitter hashtag for the session is #HRC33, and plenary sessions will be live streamed and archived at this link.
Reports from this session relating to the internet and human rights
Reports from the High Commissioner on Human Rights
The High Commissioner on Human Rights will present a report on best practices and lessons learned on how protecting and promoting human rights contribute to preventing and countering violent extremism. The report builds on previous efforts at the HRC and elsewhere in the UN system, including specifically a resolution passed at the Council’s 30th session in October 2015, which called for a panel discussion at the HRC’s 31st session in March 2016 to discuss the human rights dimensions of preventing and countering violent extremism, and this report.
The High Commissioner begins by exploring the range of meanings and legal definitions of “violent extremism” and related concepts like “radicalization”, “terrorism”, or simply “extremism”. He notes that such terms are “open to interpretation and may easily be abused” unless clearly defined in terms consistent with international human rights law. “If they are not limited to ‘violent’ extremism,” he notes, measures undertaken in response “risk targeting the holding of an opinion or belief rather than actual conduct.”
The report includes a section specifically on “preventing and countering violent extremism online”. The High Commissioner notes that the internet and digital technologies can be used for both positive and harmful ends, serving as crucial tools for sharing and collecting information, as well as for fostering democratic participation, but also for recruitment by certain violent extremist groups. He warns that a number of measures adopted to counter and prevent violent extremism risk interfering with human rights. The report notes, for example, that restrictions on access to ICTs put in place by states “range from complete network shutdowns or disruptions, to blocking access to certain platforms, to imposing restrictions on individuals connecting to, or using, certain technologies. The blocking or removal of specific content has been used as a measure to counter violent extremism.”
The High Commissioner characterises these measures as “at odds with the individualized assessment required under human rights law. States have to provide evidence-based justification of the necessity and proportionality of such interference with freedom of expression. They must demonstrate how the perceived benefits of these measures outweigh the importance of the Internet as a tool to maximize the number and diversity of voices in the discussion of numerous issues. Any lack of transparency with regard to blocking or content removal measures renders it difficult to assess whether such restrictions were really necessary for the purported aim. Consequently, there is a need for much greater transparency by States to clarify what content they are filtering, blocking or removing and on what basis.” He also warns that while online and offline “counter-narrative” campaigns aimed at reaching a large group of young people may be “of great value as means of general education, designed to raise the population’s awareness and building a resilient society,” direct engagement in small groups has shown the highest effectiveness, in particular with youth at imminent risk of joining violent extremist groups.
The High Commissioner also highlighted the monitoring of online content, specifically surveillance, interception, collection and retention of data, as a frequently employed measure taken by states to counter violent extremism. The report notes that some states have claimed that mass surveillance is “necessary” to detect terrorist plots and identify terrorists, violent extremists, their recruiters and other supporters. However, the gathering, storage and use of data can have an impact on a number of human rights, including the rights to privacy, freedom of peaceful assembly and association, and freedom of movement. The High Commissioner cites the Special Rapporteur on the right to freedom of opinion and expression, who highlighted that online surveillance may also undermine the right to form an opinion, as the fear of unwilling disclosure of online activity, such as searching and browsing, may deter individuals from accessing information, particularly where such surveillance leads to repressive outcomes.
Finally, the report concludes with recommendations, including one that addresses internet-related aspects of countering violent extremism:
Measures to prevent and counter violent extremism online should clearly set out the legal basis, criteria and guidance on when, how and to what extent online content is blocked, filtered or removed. States should also review their laws, policies and practices with regard to surveillance, interception, collection and retention of personal data in order to ensure full conformity with international human rights law. If there are any shortcomings, States should repeal, amend or promulgate such laws to ensure that there is a clear, precise, accessible, comprehensive and non-discriminatory legal framework. Information and communications technology companies should allow surveillance of individuals on their platforms only when ordered to do so following judicial intervention.
The Outcome of the panel discussion on the human rights dimensions of preventing and countering violent extremism will also be presented at HRC33. A number of internet-related rights issues were raised during the panel, including the use of social media for expressing support for and recruitment by violent extremists. The outcome notes that civil society organisations, including APC and Access Now, cautioned against measures to counter violent extremism that involved the media because they could also threaten the free flow of information online; those organisations expressed serious concern about blocking access to the internet, targeting anonymity, weakening encryption and mounting pressure on private companies to be complicit in government censorship and surveillance.
At the HRC’s request, the OHCHR organised an expert workshop in May 2016 to discuss the existing guidance on the implementation of the right to participate in public affairs. The workshop was aimed at identifying possible gaps and making recommendations in that regard, and at identifying new developments, trends and innovations with respect to full, effective and equal participation in political and public affairs. Speakers in the workshop stressed the role of technologies in disseminating information, and provided examples of the use of technologies that did not require an internet connection to increase opportunities for participation. In that regard, tools such as smartphone applications used by the OHCHR in Cambodia and in Africa were mentioned as practical ways to overcome communication barriers. Participants emphasised that ICT tools for participation may require further regulation, particularly in order to ensure respect for the right to privacy, including through adequate protection of personal data.
One of the recommendations that came out of the expert workshop is that ICT tools enhancing participation in political life and public affairs should be explored further and good practices on how these tools can be used to foster participation should be compiled and disseminated. These tools should be made widely accessible, including for persons in remote areas and for persons with disabilities. Further work may be needed, however, to ensure that these tools comply with human rights norms and standards, in particular with regard to the right to privacy.
This report from the High Commissioner for Human Rights notes that the OHCHR has supported uptake of global norms on a human rights-based approach to data and monitoring through the development of a guidance note on a human rights-based approach to data, recognised by chief statisticians from several countries, UN agencies and civil society organisations as useful in the work on data collection and disaggregation for the Sustainable Development Goals (SDGs), and deemed consistent with the Fundamental Principles of Official Statistics. Moreover, the normative approach reflected in the guidance note serves as an essential basis for supporting a human rights approach to birth registration and vital statistics. Given the risk that data collection can pose to the right to privacy, the report asserts that:
- It is essential that civil registration processes be designed with a view to ensuring non-discrimination and safeguarding against potential human rights risks, including risks to the right to privacy. Minimal information should be recorded on birth certificates, and any information obtained through civil registration processes that may lead to discrimination against an individual should be kept confidential by law.
- The commitment to improved and disaggregated data in the 2030 Agenda for Sustainable Development offers an opportunity to expand a human rights approach to data, yet at the same time it poses challenges for the protection of human rights. The SDG monitoring and review process should be carried out on the basis of core human rights principles and standards throughout the data collection process, and in relation to data disaggregation.
Reports by Special Procedures
The HRC will consider the report of the Working Group on Arbitrary Detention, which covers the period 1 January to 31 December 2015 and includes 56 opinions concerning the detention of 91 persons as well as urgent appeals concerning 241 individuals, and letters of allegations to 11 governments. Cases addressed by the Working Group during this period include prominent figures in digital rights, including Julian Assange and Bassel Khartabil (Safadi), whom the Working Group deemed to be in arbitrary detention.
The Working Group on Arbitrary Detention will present their report on 13 September (12-15h CET).
The report of the Independent Expert on the enjoyment of all human rights by older persons noted the use of ICTs in the education and training of older persons. “Examples are courses promoting the use of information technology by older persons and their participation in online communities, online platforms to train them to become entrepreneurs or virtual academies, which offer a wider range of courses and learning opportunities for older persons to enable them to remain cognitively and socially engaged. Some municipal centres provide integrated services for older persons, from cultural and recreational activities to socio-legal services.”
In her report on her Mission to Costa Rica, the Independent Expert asserted that promotion of lifelong learning is essential in order to enable older persons to cope with ever-changing circumstances and to ensure they are able to actively, autonomously and independently participate in society. She called for measures to encourage lifelong learning, including access to new technologies, in order to narrow the generation gap and avoid older persons being dependent on others through lack of knowledge of information and communication technology. The Independent Expert also recommended that data collection and analysis must comply with international standards on data protection and the right to privacy.
The Independent Expert on the enjoyment of all human rights by older persons will present her report on 14 September (12-15h CET).
Universal Periodic Review
The following outcomes of UPR reviews being adopted at HRC33 include recommendations relating to the internet and human rights:
Hungary received the following recommendation from Croatia, which it will respond to during the adoption of its UPR outcome on Wednesday, 21 September, 15:00-18:00 CET:
- Continue efforts to sensitize the public to combat discrimination on all grounds online to ensure that all rights are respected.
Tajikistan received the following recommendations, which it will respond to during the adoption of its UPR outcome on Thursday, 22 September, 9:00-12:00 CET:
- Ensure the exercise of the right to freedom of expression, including through access to Internet sites and social networks without undue restrictions (Colombia).
- Ensure that journalists and other individuals be able to freely exercise the right to freedom of expression and have access to Internet without undue restrictions (Lithuania).
- Rescind undue restrictions on the media and access to information, including on the internet, and tolerate all forms of legitimate speech, including criticism of the government and its policies (Austria).
- Remove undue restrictions on use of Internet and ensure that journalists can freely exercise their right to freedom of expression (Japan).
- Repeal legislation that facilitates the blockage of Internet content and telecommunications (United States of America).
- Review its legislation and policies in order to create a free, safe and enabling environment for journalists, bloggers and others to exercise fully their right to freedom of expression (Czech Republic).
- Prevent arbitrary and extrajudicial blocking of websites and ensure that national security concerns are not invoked to stifle peaceful dissent and criticism of the Government or to restrict the right to freedom of religion or belief (Czech Republic).
- Ensure that suspension of media outlets, including online media, cannot occur without judicial procedures on the basis of strict necessity and proportionality (Netherlands).
United Republic of Tanzania received the following recommendations, which it will respond to during the adoption of its UPR outcome on Thursday, 22 September, 9:00-12:00 CET:
- Ensure compliance of legislation with its international human rights obligations by, inter alia, reviewing the Cybercrimes Act and the Statistics Act (Germany).
- Amend all laws infringing on press freedom, in particular the Statistics Act and the Cybercrimes Act (Belgium).
- Amend the recently adopted cybercrimes legislation to make sure it does not infringe human rights and redraft the Access to Information Bill and the Media Service Bill of 2015 in line with international human rights law and the highest human rights standards (Sweden).
- Ensure that the legal framework and enforcement of laws, including the Cybercrimes Act and other laws affecting members of the media, are fully consistent with the human rights and fundamental freedoms in Tanzania’s Constitution and the Universal Declaration of Human Rights (United States of America).
- Undertake a thorough review with key stakeholders and civil society of its existing Cybercrime and Statistic Acts and proposed Media Services and Access to Information bills, to meet human rights obligations (United Kingdom of Great Britain and Northern Ireland).
The following recommendation did not enjoy Tanzania’s support:
- Duly safeguard freedom of speech and the right to information in the fight against an emerging brand of criminality in the context of cybercrime through the adoption and implementation of suitable regulations (Portugal).
Thailand received the following recommendation from Finland, which it will respond to during the adoption of its UPR outcome on Friday, 21 September, 10:00-13:00 CET:
- Review its legislation in order to ensure that all legislation, including any laws regulating the internet access to information, comply with international human rights standards protecting freedom of expression and freedom of assembly.
Side events relating to internet rights
- Addressing shrinking space, Wednesday, 14 September, organised by CIVICUS – World Alliance for Citizen Participation. This event is scheduled for 14:00-15:30, Room XXIV.
- Violations by TNCs, Friday, 16 September, organised by Korea Center for United Nations Human Rights Policy. This event is scheduled for 15:00-16:00, Room XXI.
- Journalists at risk in the Gulf, Tuesday, 20 September, organised by CIVICUS – World Alliance for Citizen Participation. This event is scheduled for 15:00-16:00, Room XXVII.
- Public participation in Africa, Wednesday, 21 September, organised by East and Horn of Africa Human Rights Defenders Project. This event is scheduled for 14:30-15:30, Room XXVII.
- Safety of journalists, Friday, 23 September, organised by ARTICLE 19, UNESCO and the Permanent Mission of Austria. This event is scheduled for 13:00-14:30, Room XXIV.
- CSO participation in IGOs, Monday, 26 September, organised by CIVICUS – World Alliance for Citizen Participation. This event is scheduled for 14:00-15:30, Room XXIV.
- Gender identity at HRC, Tuesday, 27 September, organised by the International Lesbian and Gay Association. This event is scheduled for 14:30-16:00, Room XXVII.
The draft full programme of NGO parallel events (as at 1 September 2016) is available here.
For a comprehensive overview of HRC33 see:
Universal Rights Group’s The Inside Track
International Service for Human Rights’ Human Rights Monitor: September 2016 Edition .