Internet Governance, Development and Freedom of Expression

From 30 October until 2 November 2006, Athens will host the inaugural session of the Internet Governance Forum.[1]

The theme of 'Internet Governance for Development' has been chosen as the cross-cutting theme for the meeting, which has been divided in four sessions dealing with 'Access', 'Openness', 'Security' and 'Diversity'. Unlike other international gatherings of this kind, the expected output is not a convention, declaration or any kind of negotiated outcome, but rather a set of reports on each of the individual sessions that can be used as the basis for further discussion on Internet governance.[2]

ARTICLE 19 believes that for the Forum to be successful, fulfilment of the right to freedom of expression must be a central discussion point in relation to each of the themes. As a global network for communication, the Internet cannot function without full respect for the internationally agreed right to freedom of expression. Freedom of expression is a key human right, important not only in its own regard but crucial also to the functioning of democracy and to the enforcement of other rights. Freedom of expression is also a necessary precondition for economic, social and democratic development. Nobel Price winning economist Amartya Sen remarked more than twenty years ago that no substantial famine has ever occurred in any independent and democratic country with a relatively free press.[3] This wisdom has since become internationally accepted.

ARTICLE 19 also believes that the Forum cannot be successful unless it acknowledges that freedom of expression and development cannot be achieved on the internet if the same rights are not also respected 'off-line'. In too many countries, people are still being killed, harassed, arrested, tried or detained for the peaceful and legitimate exercise of their right to freedom of expression. The recent killing of Anna Politkovskaya exemplifies the hostile climate for independent thought that exists in many countries.[4] Too often, also, excessive defamation and national security laws are abused to stifle independent voices; and almost every day, somewhere in the world an independent newspaper or radio station is shut down for being 'too critical'.

We also urge the Forum to acknowledge the crucial role played by global businesses. The Internet is a unique communications forum in many ways; one of them is that the technology used for communication is largely shaped and regulated by business.[5] The leading search engines in the world, such as Google and Yahoo!, play a powerful role in realising access to the world's information. They should strive to exercise this power responsibly and in the public interest. Internet businesses also hold sensitive private information on their users, which they should treat with extreme care and not provide to governments who are likely to use that information for censorship purposes.[6] Equally important, software providers such as Microsoft and Cisco Systems provide the technical means to surf the net and determine the way in which people access information. This in turn determines most on-line content and shapes the Net as we know it. If the Internet is to become a truly global and diverse forum for communication, these businesses will need to be persuaded to play a leading role in that process. Equally important, many of these same companies provide the software used by countries such as China and Saudi Arabia to censor the Internet and control its users. We question whether these roles are compatible and we welcome recent attempts to outlaw corporate involvement in such human rights abuses.[7]

The Internet Governance Forum provides an ideal opportunity to address all these concerns. The Forum's multi-stakeholder format, bringing together representatives from civil society, business and government, will allow a free and frank exchange of views on equal footing and has the capacity to promote a better understanding of the issues and bring key players closer together.

We therefore call on the Forum to recognise that the true realisation of the right to freedom of expression and the free flow of information, both on-line and off-line, must be the central goal of any framework for Internet governance and is indispensable for development.

In the following paragraphs, we briefly outline the main challenges for freedom of expression in relation to each of the four themes of the Internet Governance Forum.

Openness

Discussion under the "Openness" theme will be structured around the concepts of freedom of expression and the free flow of information, ideas and knowledge. The stated objective for this session is "to identify the appropriate enabling legal, policy and regulatory frameworks that preserve openness as one of the key founding principles of the Internet."[8]

The idea of the free flow of information is at the very heart of the right to freedom of expression. International law recognises this centrality and states that restrictions on open communication may be placed only through a legitimate and democratic process, and when absolutely necessary to protect a set of narrowly defined public interests.[9] Restrictions must always be proportionate, and States should always chose the least restrictive option available to them. This establishes a high threshold: to restrict a fundamental right is a serious matter and should be done only as a matter of last resort. These principles apply both to on-line communications and in the off-line world: there is no justification for applying a stricter set of rules to on-line communications than apply to those off-line.[10] Any legal, policy or regulatory framework for the Internet must therefore abide by these general principles.

Specifically with regard to Internet policy and regulation, a set of minimum principles was adopted last year by the special rapporteurs on freedom of expression of the United Nations, the Organisation of American States and the Organisation for Security and Cooperation in Europe and the Organisation. In a Joint Declaration, they stated:[11]

• The Internet, at both the global and national levels, should be overseen only by bodies which are protected against government, political and commercial interference, just as freedom from such interference is already universally acknowledged in the area of the print and broadcast media. National regulation of Internet domain names should never be used as a means to control content.
• No one should be required to register with or obtain permission from any public body to operate an Internet service provider, website, blog or other online information dissemination system, including Internet broadcasting. This does not apply to registration with a domain name authority for purely technical reasons or rules of general application which apply without distinction to any kind of commercial operation.
• Filtering systems which are not end-user controlled - whether imposed by a government or commercial service provider - are a form of prior-censorship and cannot be justified. The distribution of filtering system products designed for end-users should be allowed only where these products provide clear information to end-users about how they work and their potential pitfalls in terms of over-inclusive filtering.
• No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. Jurisdiction in legal cases relating to Internet content should be restricted to States in which the author is established or to which the content is specifically directed; jurisdiction should not be established simply because the content has been downloaded in a certain State.
• Restrictions on Internet content, whether they apply to the dissemination or to the receipt of information, should only be imposed in strict conformity with the guarantee of freedom of expression, taking into account the special nature of the Internet.
• Corporations which provide Internet searching, chat, publishing or other services should make an effort to ensure that they respect the rights of their clients to use the Internet without interference. While this may pose difficulties in relation to operations in certain countries, these corporations are encouraged to work together, with the support of other stakeholders, to resist official attempts to control or restrict use of the Internet, contrary to the principles set out herein.

We recommend that these principles are adopted by the Internet Governance Forum as the guiding principles for any form of Internet regulation, whether at the national or at the international level.

Ensuring openness on-line is not a matter that can be left to States alone. Business has a key role to play in keeping the Internet open and accessible to all. They should be expected to do more than merely ensure wide accessibility and interoperability of their software and systems. Most Internet users depend on search engines to navigate their way around the net and find information. These search engines should fulfil that function transparently and in the public interest. This is particularly important in regard to Google, which as a position of extreme dominance in the search engine world. It is also striking that many of the same businesses that supply internet services in established democracies also play a key role in maintaining the infrastructure of censorship on the internet. Western companies helped build the 'Great Firewall' of China; service providers have aided repressive regimes by handing over details of their users; and search providers have agreed to censor their search results for particular countries. Such activities are directly opposed to achieving "Openness" on the Internet. We welcome recent attempts to outlaw corporate involvement in such censorship activities[12] and we call on the Forum, which comprises many business participants, to help persuade corporations to stay out of the business of censorship.

The Forum must also devote attention to threats to openness posed by developments in copyright law and policy. While copyright laws are necessary and, when appropriately drafted, can actually help freedom of expression, they should be limited to that which is necessary to stimulate creativity. Fair use should always be allowed. At a minimum, content developed by or with the (financial) support of public authorities should be open; and measures should be taken to allow the individual use of copyright material for legitimate educational purposes. Indigenous knowledge should also enjoy appropriate protection: openness must not lead to a one-way stream of knowledge and ideas from the South to the North.

The Forum should also pay attention to restrictions on the free flow of information that are imposed by Internet service providers. Service providers should not be called upon to be the arbiters on the legality of content uploaded by their users. They are not qualified to do so and, as commercial businesses, will tend to err on the side of caution and remove any material they believe might be offensive. Instead, service providers should be required to take down material only following a fair judicial process. Service providers should also be required to ensure that they treat all on-line material equally; no content should be given preferential treatment.

Finally, we believe that in addition to discussing general principles on Internet regulation, the Forum must not ignore the wider conditions necessary to promote the free flow of information and ideas. Freedom of expression and openness cannot be achieved on the internet if it is not also respected in off-line. It is clear from the official reports of such bodies as the UN Special Rapporteur on Freedom of Expression and from reports of non-governmental watchdogs that freedom of expression is under threat everywhere in the world. Threats range from the abuse of laws to protect against defamation or national security to actual physical violence and even murder. Already, 2006 is set to become one of the deadliest years on record for journalism; to date, 42 deaths have been reported in countries such as China, Afghanistan, India, Russia and Iraq.[13] Hundreds around the world are still imprisoned for expressing their opinion.[14] The Forum must recognise that if freedom of expression is to be respected on-line, it must also be respected off-line. Real steps must be taken to end threats and actual violence against people for the exercise of the freedom of expression; and repressive laws, for example on criminal libel or requiring the licensing of media, have to be abolished.

Access

Discussion under the "Access" theme will be structured around the issues of interconnection policies and costs, interoperability and open standards, availability and affordability, regulatory and other barriers to access and capacity building to improve access. The stated objective for this session is to "explore various barriers to access that people face in terms of availability and affordability including connection costs, national policies that influence the spread of the Internet, and the role of open standards in facilitating access."[15]

If the Internet is truly to become the primary means of mass communications, then access is crucial. At present, only a small minority of the world enjoys the kind of regular and reliable access to the Internet that is necessary for the net to fulfil its potential in aiding development. To the vast majority of people in the world, FM radio remains the most important source of information on matters of public interest. This situation is unlikely to change this decade. It would therefore be wrong to see bringing the Internet to developing countries as the be-all and end-all of economic, social and democratic development.

While many of the problems experienced in terms of access are caused by poverty, illiteracy and a lack of infrastructure, and due attention must be paid to those matters, Internet access is often also impeded by regulatory problems. Whilst we do not deny that technology can and must be enlisted to help growth, development cannot be brought by showering recipient countries with information and communications technology gifts. Regulatory regimes that inhibit competition between internet service providers, or that allow only the State telecommunications provider to provide internet services, do nothing to bring down Internet prices and hinder rather than promote access. To improve access, it is therefore of the utmost importance that an appropriate regulatory framework is in place. At a minimum, this means that the conditions listed under the 'openness' theme are in place. As discussed above, the Internet cannot fulfil its potential under conditions of censorship.

The cost of international connectivity and the way in which the Internet is provided in many countries must also be an important topic of discussion. It is a fact that the cost of access per Mbps in the 'global South' is far higher than it is in the developed world. This is partly because infrastructure in the South is less well-developed; but the role played by cable and satellite companies is also important. We find it unacceptable, for example, that Intelsat was able to reduce Internet connectivity for most of Zimbabwe when that country had run up a debt on its satellite bills.[16] If the Internet is as important a tool as the World Summit on the Information Society declared it to be, then a single commercial satellite operator should not be able to hold an entire country to ransom. We urge the Forum to find a creative solution to these problems, including by ensuring the availability of multiple international paths of connectivity.

Diversity

Discussion under the "Diversity" theme will be structured around the issues of multilingualism, including in domain names, and developing local content. The stated objective for this session is "focus on how to build a multilingual Internet to increase access to and participation on the Internet and in Internet governance processes" … and to "discuss initiatives to help to improve the development of content in different languages and promote human and institutional capacity building to accomplish this objective."[17]

ARTICLE 19 strongly believes that for the Internet to become a relevant global tool for communication and information sharing, it must become more diverse. There is no point in taking measures to improve access to the Internet if there is no relevant information to be found, and if people cannot communicate in their own language. The problems in this regard are not only linguistic, but also cultural, developmental and technical. The problems in relation to the over-reliance of the net's infrastructure on the Latin alphabet have been well-developed elsewhere and we support on-going efforts to develop standards that will help create greater stability.

While we therefore encourage measures to increase diversity on the Internet, we warn against a heavily State-led form of content development. The promotion of diversity must necessarily go hand in hand with promoting access and openness. It is also important not to understand diversity 'merely' as cultural diversity: States must provide access and encourage the dissemination of all kinds of information and ideas, including political opposition and dissident voices. Under international law, a key positive element of the right to freedom of expression is the obligation on governments to create an environment in which a diverse, independent media can flourish, thereby satisfying the public's right to receive information from a variety of different sources.

Security

Discussion under the "Security" theme will be structured around the issues of protecting users from spam, phishing and viruses while protecting privacy, and network security. The stated objective for this session is "to focus on what the important issues are with respect to cybersecurity, and how collaboration between stakeholders can improve trust and confidence to combat phishing, viruses and other forms of cybercrime as well as spam and issues related to information and network security."[18]

ARTICLE 19 agrees that the protection of privacy and security on-line is a necessary precondition for maintaining the integrity of the Internet as well as for the exercise of the right to freedom of expression. In order to exercise the right to freedom of expression, the right to respect for private life must be guaranteed, including the right to communicate anonymously and the right to use encryption tools. If an Internet user suspects that his or her on-line movements are monitored, he or she will exercise caution with regard to statements made or sites visited.

At the same time, there are significant tensions between State measures to promote security and the right to privacy freedom of expression. This is particularly so in the area of cybercrime and the fight against terrorism, and the various measures employed by States to monitor internet traffic and communications. ARTICLE 19 believes that the only legitimate way to address these tensions is through international human rights law. In certain circumstances, it may be necessary to monitor or intercept communications, for example for the prevention of serious crime, but guarantees are necessary in order to safeguard against abuse of these powers. International law has laid down some minimum standards that must be respected in this regard:

• any surveillance measures must be stated in clear legislation, and be truly "necessary" in order to protect a legitimate public interest;[19] and
• legislation authorising surveillance must provide adequate guarantees against abuse, including a mechanism of judicial authorisation and democratic oversight.

Guarantees should safeguard against interference by private actors as well as State interference. For example, surveillance in the workplace can be as pervasive and detrimental to the exercise of freedom of expression as State surveillance.

The anonymity of communications should also be protected. Particularly in those countries where there is heavy State monitoring, anonymity tools can allow users to communicate with the outside world without fear of identification and reprisals. Any restrictions on the use of anonymity tools will impact on the right to freedom of expression. Courts around the world have recognised that anonymity is an important pre-condition for the exercise of the right to freedom of expression, as well as of other rights, and may be restricted only in narrow circumstances.