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  1. According to the United Nations report, what are the ways in which countries try to deny people their Internet human rights and why should countries be interested in protecting those human rights?
  2. Do you agree/disagree that there is such a thing as Internet human rights; and if so, why?

http://www.nytimes.com/2012/01/05/opinion/internet-access-is-not-a-human-right.html?_r=4&
A/HRC/17/27 United Nations General Assembly Distr.: General

 

16 May 2011

 

Original: English Human Rights Council

 

Seventeenth session

 

Agenda item 3

 

Promotion and protection of all human rights, civil,

 

political, economic, social and cultural rights,

 

including the right to development Report of the Special Rapporteur on the

 

promotion and protection of the right to freedom

 

of opinion and expression, Frank La Rue*

 

Summary

 

This report explores key trends and challenges to the right of all individuals to seek,

 

receive and impart information and ideas of all kinds through the Internet. The Special

 

Rapporteur underscores the unique and transformative nature of the Internet not only to

 

enable individuals to exercise their right to freedom of opinion and expression, but also a

 

range of other human rights, and to promote the progress of society as a whole. Chapter III

 

of the report underlines the applicability of international human rights norms and standards

 

on the right to freedom of opinion and expression to the Internet as a communication

 

medium, and sets out the exceptional circumstances under which the dissemination of

 

certain types of information may be restricted. Chapters IV and V address two dimensions

 

of Internet access respectively: (a) access to content; and (b) access to the physical and

 

technical infrastructure required to access the Internet in the first place. More specifically,

 

chapter IV outlines some of the ways in which States are increasingly censoring

 

information online, namely through: arbitrary blocking or filtering of content;

 

criminalization of legitimate expression; imposition of intermediary liability; disconnecting

 

users from Internet access, including on the basis of intellectual property rights law; cyberattacks; and inadequate protection of the right to privacy and data protection. Chapter V

 

addresses the issue of universal access to the Internet. The Special Rapporteur intends to

 

explore this topic further in his future report to the General Assembly. Chapter VI contains

 

the Special Rapporteur?s conclusions and recommendations concerning the main subjects

 

of the report. * Late submission. GE.11-13201 A/HRC/17/27 The first addendum to the report comprises a summary of communications sent by

 

the Special Rapporteur between 20 March 2010 and 31 March 2011, and the replies

 

received from Governments. The second and third addenda contain the findings of the

 

Special Rapporteur?s missions to the Republic of Korea and Mexico respectively. 2 A/HRC/17/27 Contents

 

Paragraphs Page I. Introduction............................................................................................................. 1?3 4 II. Activities of the Special Rapporteur ....................................................................... 4?18 5 A. Communications ............................................................................................. 4 5 B. Participation in meetings and seminars........................................................... 5?10 5 C. Country visits.................................................................................................. 11?18 5 General principles on the right to freedom of opinion and expression and

 

the Internet ............................................................................................................. 19?27 6 Restriction of content on the Internet ...................................................................... 28?59 9 A. Arbitrary blocking or filtering of content ....................................................... 29?32 9 B. Criminalization of legitimate expression ........................................................ 33?37 10 C. Imposition of intermediary liability ................................................................ 38?48 11 D. Disconnecting users from Internet access, including on the basis of

 

violations of intellectual property rights law .................................................. 49?50 14 E. Cyber-attacks .................................................................................................. 51?52 14 F. Inadequate protection of the right to privacy and data protection................... 53?59 15 V. Access to the Internet and the necessary infrastructure........................................... 60?66 16 VI. Conclusions and recommendations ......................................................................... 67?88 19 A. Restriction of content on the Internet ............................................................. 69?84 19 B. Access to the Internet and the necessary infrastructure ................................. 85?88 22 III.

 

IV. 3 A/HRC/17/27 I. Introduction

 

1.

 

The present report is submitted to the Human Rights Council by the Special

 

Rapporteur on the promotion and protection of the right to freedom of opinion and

 

expression pursuant to Human Rights Council resolution 7/36. In particular, the resolution

 

requests the Special Rapporteur ?to continue to provide his/her views, when appropriate, on

 

the advantages and challenges of new information and communication technologies,

 

including the Internet and mobile technologies, for the exercise of the right to freedom of

 

opinion and expression, including the right to seek, receive and impart information and the

 

relevance of a wide diversity of sources, as well as access to the information society for

 

all?.1 On this basis, the report expands upon the previous mandate holders? reports on topics

 

related to the Internet,2 taking into account recent developments and information gathered

 

through five regional consultations organized by the Special Rapporteur in 2010 and 2011.3

 

2.

 

While the Internet has been in existence since the 1960s, its current use throughout

 

the world across different age groups, and incorporation into virtually every aspect of

 

modern human life, has been unprecedented. According to the International

 

Telecommunication Union, the total number of Internet users worldwide is now over 2

 

billion.4 Active users of Facebook, an online social networking platform, grew from 150

 

million to 600 million between 2009 and 2011. The Special Rapporteur believes that the

 

Internet is one of the most powerful instruments of the 21st century for increasing

 

transparency in the conduct of the powerful, access to information, and for facilitating

 

active citizen participation in building democratic societies. Indeed, the recent wave of

 

demonstrations in countries across the Middle East and North African region has shown the

 

key role that the Internet can play in mobilizing the population to call for justice, equality,

 

accountability and better respect for human rights. As such, facilitating access to the

 

Internet for all individuals, with as little restriction to online content as possible, should be a

 

priority for all States.

 

3.

 

In this regard, the Special Rapporteur would like to underscore that access to the

 

Internet has two dimensions: access to online content, without any restrictions except in a

 

few limited cases permitted under international human rights law; and the availability of the

 

necessary infrastructure and information communication technologies, such as cables,

 

modems, computers and software, to access the Internet in the first place. The first

 

dimension is addressed in Chapter IV of the report, which outlines some of the ways in

 

which States are restricting the flow of information online through increasingly

 

sophisticated means. The second dimension is examined in Chapter IV. The Special

 

Rapporteur intends to explore the latter issue further in his future report to the General

 

Assembly. 1

 

2 3

 

4 4 Human Rights Council resolution 7/36, para. 4(f).

 

E/CN.4/1998/40; E/CN.4/1999/64; E/CN.4/2000/63; E/CN.4/2001/64; E/CN.4/2002/75;

 

E/CN.4/2005/64; E/CN.4/2006/55; A/HRC/4/27; A/HRC/7/14.

 

See para. 5 for further information.

 

International Telecommunication Union, StatShot No.5, January 2011 Available from:

 

http://www.itu.int/net/pressoffice/stats/2011/01/index.aspx. A/HRC/17/27 II. Activities of the Special Rapporteur A. Communications

 

4.

 

Between 20 March 2010 and 31 March 2011, the Special Rapporteur sent 195

 

communications, 188 of which were submitted jointly with other special procedures

 

mandate holders. The geographical distribution of the communications was as follows: 29

 

per cent for Asia and the Pacific; 26 per cent for the Middle East and North Africa; 16 per

 

cent for Africa; 15 per cent for Latin America and the Caribbean; and 14 per cent for

 

Europe, Central Asia and North America. The summary of communications sent and replies

 

received from Governments can be found in the first addendum to this report

 

(A/HRC/17/27/Add.1). B. Participation in meetings and seminars

 

5.

 

The Special Rapporteur, with the support of local organizations, organized a series

 

of expert regional consultations, beginning in March 2010 in Stockholm, followed by

 

Buenos Aires (18-19 October 2010), Bangkok (18-19 November 2010), Cairo (11-13

 

January 2011), Johannesburg (15-16 February 2011), and Delhi (2-3 March 2011). The

 

regional consultations concluded on 30 March 2011 with an expert meeting in Stockholm,

 

organized by the Ministry of Foreign Affairs of Sweden. These meetings brought together

 

experts and human rights defenders working on a range of Internet and freedom of

 

expression-related issues in order to better understand their experience, needs and priorities

 

in different countries and regions for the purposes of this report.

 

6.

 

From 14 to 17 September 2010, the Special Rapporteur attended the Fifth Internet

 

Governance Forum in Vilnius.

 

7.

 

On 30 November 2010, the Special Rapporteur participated in an expert round table

 

entitled ?Equality, Non-discrimination and Diversity: Challenge or Opportunity for the

 

Mass Media?? in Geneva, organized by the Office of the High Commissioner for Human

 

Rights (OHCHR).

 

8.

 

On 9 and 10 February 2011 and on 6 and 7 April 2011, the Special Rapporteur

 

participated as an expert in the regional expert workshops on the prohibition of incitement

 

to national, racial or religious hatred organized by OHCHR in Vienna and Nairobi

 

respectively.

 

9.

 

On 16 March 2011, the Special Rapporteur shared his views regarding the

 

compatibility of blocking child pornography on the Internet with the right to freedom of

 

expression in the context of discussions on the proposal for a directive of the European

 

Parliament and of the Council on combating the sexual abuse and sexual exploitation of

 

children and child pornography.

 

10.

 

The Special Rapporteur also participated in a series of academic events in other

 

countries, including Guatemala, Mexico, the Philippines, South Africa, Sweden and the

 

United States of America. C. Country visits

 

11.

 

The Special Rapporteur notes that country visits remain central to his mandate.

 

Requests sent to Governments to undertake a country mission are based on several factors,

 

such as visits undertaken and requested by the former mandate holders, trends that emerge

 

from communications sent on alleged violations of the right to freedom of opinion and

 

5 A/HRC/17/27 expression, and consideration of geographical balance. The Special Rapporteur hopes that

 

visit requests will be favourably received by the Governments concerned.

 

1. Missions undertaken in 2010 and 2011

 

12.

 

From 5 to 15 May 2010, the Special Rapporteur undertook a mission to the Republic

 

of Korea. The mission report is included as an addendum to this report

 

(A/HRC/17/27/Add.2).

 

13.

 

From 10 to 21 August 2010, the Special Rapporteur undertook a mission to Mexico,

 

together with the Special Rapporteur for Freedom of Expression for the Inter-American

 

Commission on Human Rights, Catalina Botero. The mission report is included as an

 

addendum to this report (A/HRC/17/27/Add.3).

 

14.

 

From 3 to 5 April 2011, the Special Rapporteur visited the Republic of Hungary, at

 

the invitation of the Government, to provide expert advice to the Government regarding

 

Hungarian media legislation. The press release with his conclusions and recommendations

 

can be found on the OHCHR website.5

 

15.

 

From 10 to 17 April 2011, the Special Rapporteur undertook a mission to Algeria.

 

The mission report will be presented at a future session of the Human Rights Council in

 

2012. The press release with his initial conclusions and recommendations can be found on

 

the OHCHR website.6 2. Upcoming missions

 

16.

 

The visit to Israel and the occupied Palestinian territory, which was scheduled to

 

take place in May 2011, has been postponed. The new dates of the visit have yet to be

 

agreed upon.

 

17.

 

The Special Rapporteur would like to thank the Italian Government for its letter

 

dated 6 August 2010 in response to his request for a visit. He hopes that a mutually

 

convenient set of dates can be agreed upon for a visit in 2011. 3. Pending requests

 

18.

 

As of March 2011, the following visit requests from the Special Rapporteur were

 

pending: the Islamic Republic of Iran (requested in February 2010), Sri Lanka (requested in

 

June 2009), Tunisia (requested in 2009), and the Bolivarian Republic of Venezuela

 

(requested in 2003 and 2009). III. General principles on the right to freedom of opinion and

 

expression and the Internet

 

19.

 

Very few if any developments in information technologies have had such a

 

revolutionary effect as the creation of the Internet. Unlike any other medium of

 

communication, such as radio, television and printed publications based on one-way

 

transmission of information, the Internet represents a significant leap forward as an

 

interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms

 

that facilitate participatory information sharing and collaboration in the creation of content,

 

individuals are no longer passive recipients, but also active publishers of information. Such

 

5 6 6 Available from:

 

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10916&LangID=E.

 

Ibid. A/HRC/17/27 platforms are particularly valuable in countries where there is no independent media, as

 

they enable individuals to share critical views and to find objective information.

 

Furthermore, producers of traditional media can also use the Internet to greatly expand their

 

audiences at nominal cost. More generally, by enabling individuals to exchange information

 

and ideas instantaneously and inexpensively across national borders, the Internet allows

 

access to information and knowledge that was previously unattainable. This, in turn,

 

contributes to the discovery of the truth and progress of society as a whole.

 

20.

 

Indeed, the Internet has become a key means by which individuals can exercise their

 

right to freedom of opinion and expression, as guaranteed by article 19 of the Universal

 

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

 

The latter provides that:

 

(a) Everyone shall have the right to hold opinions without interference; (b)

 

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;

 

(c)

 

The exercise of the rights provided for in paragraph 2 of this article carries

 

with it special duties and responsibilities. It may therefore be subject to certain restrictions,

 

but these shall only be such as are provided by law and are necessary:

 

(d) for respect of the rights or reputations of others; (e)

 

for the protection of national security or of public order (ordre public), or of

 

public health or morals.

 

21.

 

By explicitly providing that everyone has the right to express him or herself through

 

any media, the Special Rapporteur underscores that article 19 of the Universal Declaration

 

of Human Rights and the Covenant was drafted with foresight to include and to

 

accommodate future technological developments through which individuals can exercise

 

their right to freedom of expression. Hence, the framework of international human rights

 

law remains relevant today and equally applicable to new communication technologies such

 

as the Internet.

 

22.

 

The right to freedom of opinion and expression is as much a fundamental right on its

 

own accord as it is an enabler? of other rights, including economic, social and cultural

 

rights, such as the right to education and the right to take part in cultural life and to enjoy

 

the benefits of scientific progress and its applications, as well as civil and political rights,

 

such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for

 

individuals to exercise their right to freedom of opinion and expression, the Internet also

 

facilitates the realization of a range of other human rights.

 

23.

 

The vast potential and benefits of the Internet are rooted in its unique characteristics,

 

such as its speed, worldwide reach and relative anonymity. At the same time, these

 

distinctive features of the Internet that enable individuals to disseminate information in

 

?real time? and to mobilize people has also created fear amongst Governments and the

 

powerful. This has led to increased restrictions on the Internet through the use of

 

increasingly sophisticated technologies to block content, monitor and identify activists and

 

critics, criminalization of legitimate expression, and adoption of restrictive legislation to

 

justify such measures. In this regard, the Special Rapporteur also emphasizes that the

 

existing international human rights standards, in particular article 19, paragraph 3, of the

 

International Covenant on Civil and Political Rights, remain pertinent in determining the

 

types of restrictions that are in breach of States? obligations to guarantee the right to

 

freedom of expression. 7 A/HRC/17/27 24.

 

As set out in article 19, paragraph 3, of the Covenant, there are certain exceptional

 

types of expression which may be legitimately restricted under international human rights

 

law, essentially to safeguard the rights of others. This issue has been examined in the

 

previous annual report of the Special Rapporteur.7 However, the Special Rapporteur deems

 

it appropriate to reiterate that any limitation to the right to freedom of expression must pass

 

the following three-part, cumulative test:

 

(a)

 

It must be provided by law, which is clear and accessible to everyone

 

(principles of predictability and transparency); and

 

(b)

 

It must pursue one of the purposes set out in article 19, paragraph 3, of the

 

Covenant, namely (i) to protect the rights or reputations of others, or (ii) to protect national

 

security or of public order, or of public health or morals (principle of legitimacy); and

 

(c)

 

It must be proven as necessary and the least restrictive means required to

 

achieve the purported aim (principles of necessity and proportionality).

 

Moreover, any legislation restricting the right to freedom of expression must be applied by

 

a body which is independent of any political, commercial, or other unwarranted influences

 

in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards

 

against abuse, including the possibility of challenge and remedy against its abusive

 

application.

 

25.

 

As such, legitimate types of information which may be restricted include child

 

pornography (to protect the rights of children),8 hate speech (to protect the rights of affected

 

communities),9 defamation (to protect the rights and reputation of others against

 

unwarranted attacks), direct and public incitement to commit genocide (to protect the rights

 

of others),10 and advocacy of national, racial or religious hatred that constitutes incitement

 

to discrimination, hostility or violence (to protect the rights of others, such as the right to

 

life).11

 

26.

 

However, in many instances, States restrict, control, manipulate and censor content

 

disseminated via the Internet without any legal basis, or on the basis of broad and

 

ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is

 

clearly unnecessary and/or disproportionate to achieving the intended aim, as explored in

 

the following sections. Such actions are clearly incompatible with States? obligations under

 

international human rights law, and often create a broader ?chilling effect? on the right to

 

freedom of opinion and expression.

 

27.

 

In addition, the Special Rapporteur emphasizes that due to the unique characteristics

 

of the Internet, regulations or restrictions which may be deemed legitimate and

 

proportionate for traditional media are often not so with regard to the Internet. For example,

 

in cases of defamation of individuals? reputation, given the ability of the individual

 

concerned to exercise his/her right of reply instantly to restore the harm caused, the types of

 

sanctions that are applied to offline defamation may be unnecessary or disproportionate.

 

7

 

8 9 10 11 8 A/HRC/14/23, paras. 72 - 87.

 

Dissemination of child pornography is prohibited under international human rights law, see e.g.

 

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child

 

prostitution and child pornography, art. 3, para. 1(c).

 

See for example Faurisson v. France, United Nations Human Rights Committee, communication

 

550/1993, views of 8 November 1996. The issue of hate speech has also been addressed in previous

 

reports, see inter alia E/CN.4/1999/64; E/CN.4/2000/63; E/CN.4/2002/75; and A/HRC/4/27.

 

See for example article 3(c) of the Convention on the Prevention and Punishment of the Crime of

 

Genocide.

 

See for example article 20, paragraph 2, of the International Covenant on Civil and Political Rights. A/HRC/17/27 Similarly, while the protection of children from inappropriate content may constitute a

 

legitimate aim, the availability of software filters that parents and school authorities can use

 

to control access to certain content renders action by the Government such as blocking less

 

necessary, and difficult to justify.12 Furthermore, unlike the broadcasting sector, for which

 

registration or licensing has been necessary to allow States to distribute limited frequencies,

 

such requirements cannot be justified in the case of the Internet, as it can accommodate an

 

unlimited number of points of entry and an essentially unlimited number of users.13 IV. Restriction of content on the Internet

 

28.

 

As outlined under Chapter III, any restriction to the right to freedom of expression

 

must meet the strict criteria under international human rights law. A restriction on the right

 

of individuals to express themselves through the Internet can take various forms, from

 

technical measures to prevent access to certain content, such as blocking and filtering, to

 

inadequate guarantees of the right to privacy and protection of personal data, which inhibit

 

the dissemination of opinions and information. The Special Rapporteur is of the view that

 

the arbitrary use of criminal law to sanction legitimate expression constitutes one of the

 

gravest forms of restriction to the right, as it not only creates a ?chilling effect?, but also

 

leads to other human rights violations, such as arbitrary detention and torture and other

 

forms of cruel, inhuman or degrading treatment or punishment. A. Arbitrary blocking or filtering of content

 

29.

 

Blocking refers to measures taken to prevent certain content from reaching an enduser. This includes preventing users from accessing specific websites, Internet Protocol (IP)

 

addresses, domain name extensions, the taking down of websites from the web server

 

where they are hosted, or using filtering technologies to exclude pages containing keywords

 

or other specific content from appearing. For example, several countries continue to block

 

access to YouTube,14 a video-sharing website on which users can upload, share and view

 

videos. China, which has in place one of the most sophisticated and extensive systems for

 

controlling information on the Internet, has adopted extensive filtering systems that block

 

access to websites containing key terms such as ?democracy? and ?human rights?.15 The

 

Special Rapporteur is deeply concerned that mechanisms used to regulate and censor

 

information on the Internet are increasingly sophisticated, with multi-layered controls that

 

are often hidden from the public.

 

30.

 

The Special Rapporteur is also concerned by the emerging trend of timed (or ?justin-time?) blocking to prevent users from accessing or disseminating information at key

 

political moments, such as elections, times of social unrest, or anniversaries of politically or

 

historically significant events. During such times, websites of opposition parties,

 

independent media, and social networking platforms such as Twitter and Facebook are 12 13 14 15 Center for Democracy & Technology, ?Regardless of Frontiers: The International Right to Freedom

 

of Expression in the Digital Age,? version 0.5 - Discussion draft (April 2011), p.5.

 

However, this does not apply to registration with a domain name authority for purely technical

 

reasons or rules of general applicati...

 







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