Today, at the 35th Session of the UN Human Rights Council, ARTICLE 19 is launching a new policy examining the responsibilities of telecommunications (telcos) and Internet service providers (ISPs) to protect and respect human rights, in particular the right to freedom of expression, and to remedy violations of these rights.
ARTICLE 19 considers that the extent of telcos and ISPs’ responsibilities with regards to human rights reflect the critical role these businesses play in enabling individuals to exercise their right to freedom of expression. This policy brief explores the contours of these responsibilities. Our starting point is the UN Guiding Principles on Business and Human Rights (the Guiding Principles), which require telcos and ISPs to integrate human rights safeguards and mitigate human rights impacts.
We recommend that, in order to ensure that telcos and ISPs comply with their responsibilities with regards to human rights, in particular with the Guiding Principles, telcos and ISPs should ensure that in their operations, they embody the fundamental principles of a human rights-based approach, namely:
- Respect for human rights: terms of service should be publicly available and accessible, formulated with sufficient precision to enable users to understand their implications and regulate their conduct accordingly, and restrict users’ exercise of human rights only where necessary to achieve a legitimate aim and where proportionate to that aim;
- Participation: users should have the right to participate in decisions that implicate their human rights. Terms of service should be based on obtaining users’ express free and informed consent, and should guarantee that users will be notified of measures that will infringe upon their human rights;
- Empowerment: users should be sufficiently informed and empowered to engage with terms of service and contest them under certain circumstances. Users should have control over their personal information in a manner that is consistent with the right to freedom of expression;
- Non-discrimination and equality: Internet users should enjoy nondiscriminatory access to the Internet, their online content and data should be treated equally and without discrimination;
- Accountability: terms of service should be transparent and clear about the conditions under which users’ human rights will be restricted. In particular, terms of service should disclose how and under what conditions telcos and ISPs will respond to government orders and requests for disclosure of personal data. Terms of service should provide an effective remedy for individuals to contest such decisions.
The policy also provides detailed recommendations on specific measures that are deployed by telcos and ISPs – either at the behest of, or under compulsion by, the State (including network shutdowns, state surveillance, the generation and retention of certain data, or bans on particular applications or services) or voluntarily, in some cases driven by commercial interests. Specific recommendations addressing how the private sector should bring such practices into line with international human rights law are set out.