A global pandemic. A wave of protests around the world. The rise of facial recognition technology and digital identification systems. An epidemic of internet shutdowns and other harmful tactics to control the flow of information online. It was in the context of these developments that the United Nations (U.N.) Human Rights Council (the Council) held its 44th Session in Geneva from June 30-July 17. During the session — which included an urgent debate on the “current racially inspired human rights violations, systemic racism, police brutality, and violence against peaceful protest” — the Council finalized key resolutions and released timely reports on the impact of digital technology on human rights.
These resolutions and reports highlight the need for a human rights-centered and multi-stakeholder approach to digital technologies, including within the U.N. system, and further work to assess the “impacts, opportunities, and challenges of new and emerging digital technologies.” In her opening statement, Nada Al-Nashif, U.N. Deputy High Commissioner for Human Rights, stressed the Council’s responsibility to set forth how international human rights law, standards, and principles should be applied in the digital environment.
Overall, the reports presented by the Office of the High Commissioner for Human Rights (OHCHR) and Special Procedures mandate-holders show that emerging technologies implicate a multitude of human rights and pose common challenges that societies must tackle using a holistic approach. In this post, we take a closer look at key reports and resolutions from the session, sharing our responses to help strengthen and support the development of laws and policies that will safeguard the human rights of those most at risk in our societies around the world.
Before we dive in, we note that this was the final Council session for David Kaye, the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Access Now thanks David for his countless contributions to the field over the past six years, and we were honored that he ended his mandate last month with the RightsCon community in a fireside chat with Maria Ressa, journalist and Chief Executive Officer of Rappler. Dr. Irene Khan was appointed as Kaye’s successor, and steps into the role as the first woman to hold this position. We welcome Dr. Khan and her team and we look forward to engaging with her in the years ahead.
Key reports for defending human rights in the digital age
The OHCHR submitted a landmark report on the impact of new technologies on the promotion and protection of human rights in the context of assemblies, including peaceful protests (see A/HRC/44/24 in the index of reports). Access Now contributed to the report with a submission in October 2019. That submission is cited, along with a report by Access Now and the #KeepItOn Coalition on internet shutdowns in 2019.
OHCHR’s report highlights the role of new technologies and ICTs as enablers of the enjoyment of human rights, including the right to freedom of peaceful assembly. Specifically, the report discusses the importance of digital tools in the coordination, organization, and participation in protests, as they allow individuals to communicate and share timely information quickly and easily. OHCHR stresses that digital tools can help protesters enhance their security — for instance, when they use end-to-end encryption for private communications — and document the human rights violations that often take place during protests, increasing transparency and accountability for these violations.
On the flip side, the report notes the pervasiveness of technology used to undermine the enjoyment of rights. When states interfere with communications, impose internet shutdowns, and leverage surveillance technologies, they curtail the right to protest by preventing the exchange of information and facilitating the identification, monitoring, harassment, and prosecution of protesters. The report reiterates that internet shutdowns violate international human rights standards, and warns against the use of surveillance technologies to spy on peaceful protesters. OHCHR reminds states that any restrictions on the right to freedom of peaceful assembly must comply with human rights standards.
Importantly, the report shed light on the role of the private sector in advancing technologies that are respectful of human rights. OHCHR stresses companies’ responsibility to respect human rights, in light of the U.N. Guiding Principles on Business and Human Rights, and recommends that all companies implement human rights due diligence practices to “identify, prevent, mitigate, and account for how they address” the impacts of their technologies on human rights. OHCHR recommends that companies challenge government orders to interfere with and disrupt communications, social media, and access to the internet, and be transparent about related requests.
To advance transparency on the private sector’s human rights impacts, Access Now created the Transparency Reporting Index, and has also recently published a report focused specifically on the rights to freedom of peaceful assembly and of association in the digital age. This report further discusses the issues raised by the OHCHR in its report, such as access to the internet, surveillance technologies, and the influence of the private sector in online civic space. A snapshot of the report can be found here.
Marking the 10th anniversary of the establishment of the mandate of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the current mandate holder, Clément Voule, submitted a report reflecting on the evolution and the future of the mandate.The report provides a comprehensive overview of the role of the mandate in advancing the protection of the rights to freedom of peaceful assembly and of association. For instance, the mandate has been fundamental in shaping the definition of these rights, ensuring their universality, providing legal and institutional frameworks to support them, and mapping the obstacles to protecting them. Specifically, the mandate plays a crucial role in adapting the scope of these rights to fast-changing realities. Recently, for instance, the U.N. Human Rights Committee finalized the General Comment No. 37 on Article 21 of the ICCPR as a result of the mandate’s strong impetus before the Committee. In a milestone provision, the Committee recognized that Article 21 also protects online assemblies, as well as any activities related to organizing them.
Despite the progress that has been made on recognizing and fostering these rights globally, there are significant challenges, and the report flags the erosion of democracy in these past years and the consequent rising trend of closing civic spaces worldwide. It also raises concerns with regard to the COVID-19 pandemic, specifically that states will leverage the health crisis as a tool to curtail freedoms, weaken civil society organizations, and silent critical voices.
Finally, the report sets out digital technologies as one of the strategic areas for the mandate, and for stakeholders to engage in. Specifically, the report highlights the use of facial recognition technologies, internet disruptions, interference with communications, and mechanisms for digital identification to hinder the exercise of rights.
In the last months of his mandate as Special Rapporteur, David Kaye submitted a report to the Human Rights Council on disease pandemics and the freedom of opinion and expression (A/HRC/44/49). Access Now welcomed this final report from Kaye, which sheds light on key concerns surrounding the use of technology in response to health crises, particularly with regard to access to the internet, public health disinformation, and public health surveillance.When presenting his report to the Council, Kaye warned that, in the context of a pandemic, restrictions on freedom of opinion and expression threaten individuals’ lives and health. As he pointed out, hiding information, detaining reporters, and criminalizing individuals under allegations of “fake news” are practices that have contributed to the death of many people worldwide. Therefore, during COVID-19, it is even more essential that governments take the necessary measures to meet the threshold imposed by Article 19 of the ICCPR when imposing any restrictions on the exercise of this right.
David Kaye also presented a report on his visit to Ethiopia from December 2-9, 2019, upon the invitation of the Ethiopian government (A/HRC/49/Add.1). It was the first visit to the country by a U.N. Special Rapporteur since 2006.The report highlights measures taken by the current government of Ethiopia to reform legal frameworks that had previously been applied to impair the exercise of freedom of expression. Kaye also calls attention to issues that remain a pressing concern, including the existence of significant civil penalties for defamation, which can create a chilling effect for the exercise of the right to freedom of expression. The report stresses that any interference with the right to freedom of expression and opinion must be accompanied by “transparent, easily accessible and non-arbitrary legal standard[s].”
Additionally, the report highlights the issue of the escalation of violence in Ethiopia and discusses the government’s response to the dissemination of “hate speech” and disinformation, including on social media platforms. Kaye points out that Ethiopia’s Hate Speech and Disinformation Prevention and Suppression Proclamation could be used to disproportionately punish individuals who post, repost, or share content deemed as “hate speech” or “disinformation,” and warns that it therefore has the potential to silence critical voices.
More people are joining Facebook in Ethiopia, and as it gains popularity, Kaye calls on the company to ensure that the platform “contributes to people’s expressions, rather than becoming a tool for the spread of hatred or disinformation.” The report emphasizes that Facebook has a responsibility to respect human rights, and urges the company and other ICT companies to conduct a human rights impact assessment of their activities in Ethiopia, as Access Now and other civil society groups advocate.
Kaye’s report also commends Ethiopia for releasing journalists, political activists, and human rights defenders who were arbitrarily detained by the previous government. It acknowledges the government’s commitment to avoiding the unlawful surveillance of the past, and applauds the positive steps that have been taken to ensure an independent media. Yet Kaye notes with great concern the arrest of and online attacks against journalists in the past two years. The report flags the lack of access to information in Ethiopia, observing that such access is particularly important to fight the spread of disinformation and misinformation.
While the report commends the government’s efforts to expand access to the internet and enhance connectivity, it strongly repudiates the measures it has taken to disrupt access to the internet and censor online content, and in particular ordering blanket internet shutdowns. Kaye underscores that such shutdowns constitute a violation of international human rights law.
Consequently, during his statement to the Human Rights Council, David Kaye called the Council’s attention to recent events in Ethiopia. Following the assassination of the artist and activist Haacaaluu Hundeessaa on June 29, Ethiopians flooded into the streets in a wave of protests and demonstrations to demand justice. In response, the government imposed a blanket internet shutdown, cutting off internet access across the country. In light of the shutdown and alarming political unrest — more than 230 people have been killed during recent protests — Kaye urged Ethiopia to end its practice of ordering internet shutdowns and ensure that law enforcement responds to protests in a way that complies with Ethiopia’s obligations under international human rights law. In tandem, Access Now and other civil society organizations called on Facebook to do more to address the prevalence of violence-inciting content on the platform in Ethiopia.
Amidst the recent wave of protests to demand racial justice worldwide, E. Tendayi Achiume, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, submitted a report to the Council presenting a human rights perspective on the link between racial discrimination and emerging digital technologies (see A/HRC/44/57 in the index of reports). Access Now contributed to the report during the consultation process in 2019, noting the two-year anniversary of the Toronto Declaration on human rights and artificial intelligence, which calls on stakeholders to protect the rights to equality and non-discrimination in machine learning systems. We also joined more than 70 organizations in a letter welcoming the Special Rapporteur’s timely report and the effort to raise awareness regarding the impact of technology on the human rights of marginalized communities.The report stresses that emerging digital technologies can reinforce and exacerbate existing inequalities, including those rooted in race, ethnicity, and national origin. Achiume corrects the misconception that these technologies are neutral and objective, and calls for deeper analysis of the impact they may have on equality and discrimination. The report makes it clear that technologies are not insulated from the social, economic, and political context in which they are immersed, and therefore are not free from reproducing, whether intentionally or inadvertently, the discriminatory patterns of those developing, implementing, or using the technology.
To mitigate the discriminatory impacts of technology, Achiume calls for multi-stakeholder engagement in the development and use of emerging technologies. Governments, companies, civil society organizations, and other relevant stakeholders, such as affected communities, must come together to ensure that these technologies do not deepen the harm of racism and discrimination.
Key resolutions for defending human rights in the digital age
On July 16, the Council adopted by consensus the resolution on freedom of opinion and expression (see A/HRC/44/L.18/Rev.1), led by Brazil, Canada, Fiji, Namibia, Netherlands, and Sweden. This resolution comes more than 10 years after the last adoption of a substantive resolution on this topic.
The resolution recognizes that the exercise of the right to freedom of opinion and expression is an indicator of the level of protection accorded to other human rights and freedoms. In addition, it reaffirms that human rights are the same online and off, as reiterated in various international instruments. It recognizes the role of the private sector in advancing human rights, including the right to freedom of opinion and expression, as well as enabling access to information.
The resolution contains important language on several challenges we face in the digital age. The recognition of existing digital divides and the importance of encryption for private communication and anonymity, and the condemnation of internet shutdowns, are positive highlights. Unfortunately, the final text weakened the resolution, focusing on permissible restrictions to freedom of opinion and expression instead of imposing on states positive obligations to protect and promote this right.
Access Now supports the resolution’s recognition of access to information as an essential enabler of other human rights. In particular, we welcome the call on states to refrain from disrupting access to information and communications through internet shutdowns, interference with ICTs, censorship, and other uses of technology that hinder the exercise of human rights. In light of the increasing digitization of essential services, especially due to the COVID-19 pandemic, access to the internet and ICTs becomes a fundamental tool for protecting these rights. We call on states to adopt positive measures to ensure that all individuals are connected and have access to open, free, secure, stable, and affordable internet.
Importantly, the resolution also highlights that responses to disinformation and misinformation must comply with international human rights law. The COVID-19 pandemic is shedding light on a rising trend of public policies and regulations to combat disinformation and misinformation that ultimately serve to silence critical voices, such as those of journalists, human rights defenders, and activists. Access Now advocates for addressing disinformation and misinformation through effective and transparent communication, not broad and vague laws — including those criminalizing hate speech — that lead to censorship of certain viewpoints, undermining the right to freedom of opinion and expression.
The resolution also encourages business enterprises to meet their responsibilities under the U.N. Guiding Principles on Business and Human Rights, especially by enhancing transparency on their activities. Businesses, and particularly social media platforms, play an increasingly significant role in the promotion and protection of human rights as they control the online spaces where these rights are exercised. Unfortunately, the resolution does not do enough to address the massive influence platforms have over the right to freedom of opinion and expression. For instance, the text lacks an explicit reference to social media services and their content governance policies, and does not address their broad data collection practices, which allow platforms to be used to monitor and identify individuals who speak out online. Access Now urges the Council and the international community to engage companies, and especially social media platforms, in discussions and initiatives aimed at safeguarding human rights in the digital space.
Another major gap in the resolution is the absence of any reference to surveillance technologies and the threat they pose to the enjoyment of the right to freedom of opinion and expression. While the resolution highlights the importance of encryption and anonymity as tools to ensure confidentiality, it does not address the use of mass surveillance technology to identify, monitor, and prosecute individuals.
Among the technologies that are absent from the resolution: facial recognition technology, digital identification systems, and tools for the mass collection of biometric data. Governments worldwide increasingly use these tools to interfere with the rights of individuals who speak up, including journalists, political opposition, activists, and human rights defenders. That causes a significant chilling effect on freedom of opinion and expression and we urge the Council to address this issue in the sessions to come.
On July 17th, the Council adopted, by consensus, the resolution on the right to peaceful protest (see A/HRC/44/L.11), led by Switzerland and Costa Rica. This timely resolution comes as a wave of protests have broken worldwide to demand racial justice, equality, and government transparency, among other demands. Access Now welcomes the resolution and believes that the text represents a fundamental step forward in the promotion of freedom of peaceful assembly in the digital age.
The resolution incorporates language that is key to fostering discussions on the intersection of the right to freedom of peaceful assembly and technology. For instance, it recognizes that online assemblies are protected the same way that physical gatherings are protected. It therefore calls upon states to promote a “safe and enabling environment for individuals and groups to exercise their rights to freedom of peaceful assembly, of expression and of association, both online and offline.” Access Now warmly welcomes these provisions.
As the internet becomes a new modality of civic space, states and the private sector must jointly ensure a safe online environment for the exercise of the right to protest. We echo the call for legal frameworks — compliant with international human rights standards — that are capable of fostering the exercise of the right to protest, online and off.
The resolution also acknowledges technologies as enablers of the exercise of the rights to freedom of peaceful assembly, association and expression, especially for marginalized individuals and communities. Moreover, it stresses the importance of secure and private communications technology in the organization and conduct of peaceful assemblies. Specifically, it emphasizes confidentiality, encryption, and anonymity as fundamental mechanisms to ensure the enjoyment of the rights to freedom of peaceful assembly, privacy, and freedom of expression.
Additionally, the resolution expresses deep concern about the imposition of internet shutdowns as means to undermine peaceful protests. It underscores that access to the internet must be ensured, especially where physical assemblies are not possible, and therefore calls on states to refrain from shutting down the internet, blocking content, disrupting telecommunications, and practicing online censorship. The resolution also urges states to adopt measures to ensure wide access to an affordable internet to all, while also ensuring individuals’ right to privacy.
Access Now fully supports and echoes these provisions. We stress that the outbreak of the COVID-19 pandemic and the need to undertake social distancing measures has shed new light on our reliance on technology to exercise our rights, monitor governments’ activities, and hold them accountable for misconduct and violations of these rights. We also reiterate that internet shutdowns and other inherently disproportionate disruptions of communications constitute clear violations of international human rights standards and urge governments to keep the internet on and refrain from unlawfully and illegitimately impairing the right to protest.
Importantly, the resolution raises awareness of the adverse impacts of technology on the right to peaceful protest. It expresses serious concerns about the unlawful and arbitrary surveillance of protesters, online and off, citing the use of facial recognition technologies, digital tracking tools, international mobile subscriber identity (IMSI) catchers and CCTVs. These technologies create a chilling effect on the exercise of the right to protest by enhancing governments’ abilities to identify, monitor, harass, intimidate, and prosecute protesters, who would otherwise rely on their anonymity to speak up and voice their demands and concerns. Access Now echoes the resolution’s call on states to refrain from using surveillance technologies, including facial recognition technology and tools for mass collection of biometric data, to arbitrarily surveil, harass, and silence individuals involved in peaceful protests.
Unfortunately, the resolution, similar to the resolution on the freedom of opinion and expression, fails to address the role of actors in the private sector, especially social media platforms, in advancing respect for the right to freedom of peaceful assembly. These platforms are widely used for organizing protests and social movements, as well for holding online gatherings, and therefore play a major part in ensuring that individuals can freely exercise their rights without any undue interference, either by the companies themselves or governments. In our recent report, Access Now presents several recommendations for companies to meet their responsibility to advance the rights to freedom of peaceful assembly and of association in the digital civic space. We encourage the Council to advance this discussion in its upcoming sessions.