HRC38: States push forward on free expression despite opposition

On 6 July 2018, the 38th Session of the UN Human Rights Council (HRC38) concluded. Here, we highlight the most significant gains made for freedom of expression during the session, and reflect on some of the emerging challenges.

A final message from the departing High Commissioner

“Do more”, “speak louder”, and “work harder” – this was the appeal of the outgoing UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in his final global update to the Council, opening HRC38.

The High Commissioner was uncompromising in his condemnation of the “growing menace of chauvinistic nationalism”, which he called “the most destructive force to imperil the world” – one we can only begin to combat by speaking out to challenge human rights abuses when they arise.

“Only fearlessness is adequate to our task”, Zeid urged. His powerful message received a standing ovation from almost everyone in the room, with only the Russian delegation appearing to stay firmly in their seats.

Violations of freedom of expression, and the shrinking of civic space, were recurring themes among the long list of human rights situations the High Commissioner’s speech raised. These themes also formed the focus of our response to the High Commissioner raising concerns on threats to rights in Russia, Iran, and Turkey, and welcoming the potential for reform in Malaysia.

Advancing freedom of expression standards

HRC38 saw the negotiation of four thematic resolutions that provided States with the opportunity to advance international freedom of expression standards and ensure their implementation around the world.

All four resolutions, each containing important commitments by States to act to better protect freedom of expression at national level, were adopted.

  • The Internet and human rights: In the digital age, the Internet has become a key battle ground for the protection of human rights, in particular the right to freedom of expression. It’s vital that international standards keep pace with emerging trends, as States increasingly seek new ways to control and restrict online expression. Reaffirming that “the same human rights that people have offline must be protected online”, Resolution 38/7 sets out States’ commitments to protect anonymity and encryption, and cease abusing legal frameworks to unduly limit free expression on the Internet. It also calls on States to address digital divides both within and between countries, including the gender digital divide, by ensuring the Internet and ICTs are made genuinely accessible to all to enable the universal exercise of human rights online. The resolution also begins to unpack the responsibilities of business enterprises like social media companies to uphold international human rights standards as set out in the Guiding Principles on Business and Human Rights: Implementing the UN “Protect, Respect and Remedy” Framework.
  • The right to protest: Resolution 38/11 also reflects on the increasingly important role of the Internet and digital technologies in enabling individuals to exercise their right to protest, whether online or offline, including by facilitating their organisation, and providing participants and the wider public with access to information on protests. In an important normative step forward, the Resolution makes clear that States’ human rights obligations apply to protests that take place online, and that States must not frustrate people’s right to protest by blocking access to the Internet, undermining the security of communications, or criminalising individuals for exercising their right to protest. The landmark resolution calls on the Office of the High Commissioner for Human Rights (OHCHR) to prepare a report on new technologies and their impact on the protection of rights in protest.
  • Civil society space: Transparency and access to information are the foundation of an enabling environment for civil society participation in public affairs, whether at national, regional, or international level. Resolution 38/12 makes clear that the effectiveness of intergovernmental organisations, including the UN, depends on the effective participation of civil society, calling on IGOs to open up, including by adopting access to information policies and reforming arbitrary and opaque accreditation processes. At the national level, States urged the reversal of restrictive practices, including those aimed at limiting civil society organisations’ access to resources, which unduly restrict the rights to expression, association and assembly. The resolution calls for a progress report on IGOs’ practices in two years’, and promises to review progress made by States at the national level within a year.
  • Violence against women and girls in digital contexts: For the first time, the HRC recognised thatpromoting and protecting human rights online requires States to address discrimination and violence against women in digital contexts. Such forms of discrimination can constitute a violation not only of women’s right to equality and non-discrimination, but can also violate or obstruct their rights to freedom of expression and information, privacy, and participation in public life, among others. Condemning all forms of gender-based discrimination and abuse online as an attack on the free expression rights of women, Resolution 38/5 is a strong call to action to both States and private businesses. It commits States to ensure the participation of women and girls in the development of digital technologies and relevant national laws and policies, to safeguard anonymity and encryption as important tools for women and girls to enjoy their rights online, and ensure access to effective remedies for rights violations and abuses.

Online content regulation and human rights

The removal of user-generated content from the Internet, whether at the initiative of States or private actors, has become an increasing free expression concern in recent years, particularly as States increase the legal and extra-legal pressures on platforms to remove content they do not like.

In a landmark report to HRC38, the UN Special Rapporteur on freedom of expression called on States and social media companies to ensure respect of the right to freedom of expression when regulating online content. The report explores how companies can adopt a “human rights by default” approach to content moderation, in part to resist these increasing (and often not rights-respecting) pressures from States.

Recommendations in the Special Rapporteur’s report closely mirror ARTICLE 19’s policy ‘Side-stepping rights: Regulating speech by contract’ – these must be closely examined by States and private companies, in particular regarding transparency and accountability.

Significantly, the report backs an ARTICLE 19 proposal for the creation of social media councils, inspired by effective independent models created to promote journalistic ethics and high standards in print media, to increase clarity, consistency, accountability and effective remedy in the field of online content moderation.

Countries in focus for freedom of expression

The situation for freedom of expression in Mexico was under close scrutiny following the presentation by the UN Special Rapporteur on freedom of expression of the final report on his 2017 country visit.

We condemned the prevailing state of impunity in the country which continues to drive a cycle of violence: ARTICLE 19 Mexico has recorded the killings of 40 journalists in the country in just six years. The government has also failed to ensure independent investigations to the use of Pegasus surveillance software against human rights defenders and journalists, as well as the abuse of public advertising to manipulate press coverage.[1] We urge the Mexican government to take immediate steps, in the run up to its Universal Periodic Review (UPR), to implement the Special Rapporteur’s recommendations.

ARTICLE 19 also put attacks on digital rights in Russia in the spotlight in a statement under the Item 4 General Debate, which more than 50 Russian and international NGOs joined. Over the past six years, a raft of legislation has increasingly restricted space for online expression, and compromised the security and privacy of Internet users. This has culminated in recent months in attempts to block the Internet messaging service Telegram. If the same human rights that apply offline apply online, it is high time States at the HRC increase its scrutiny on Russia.

A year in advance of Iran facing its third UPR, we highlighted how the situation for freedom of expression in the country remains dire, especially following the crackdown on protests earlier this year. We called on the Iranian government to cooperate with the new mandate holder, Dr. Javaid Rehman, appointed to the position at the conclusion of HRC38.

In response to an oral update from the Special Rapporteur on the human rights situation in Myanmarwe condemned the government’s sustained attacks on freedom of expression, including the continued detentions of Reuters journalists Wa Lone and Kyaw Soe Oo, as part of its efforts to both discredit and manipulate coverage of conflicts in the country.

In relation to Burundi, we expressed our disappointment that the government rejected every UPR recommendation put to it for addressing gross violations of the rights to free expression, association and assembly. This is just further evidence of Burundi’s lack of cooperation with international human rights mechanisms, and its fundamental unsuitability to be an HRC member state.

On Eritrea, which will also undergo its UPR early next year, we raised again our deep concerns that the denial of freedom of expression in the country is systematically entrenched. We welcome resolution 38/15 renewing the mandate of the Special Rapporteur by consensus, and call on the government to cooperate with the mandate urgently.

In relation to the United States of America we shone a spotlight on the ways in which press freedom is under threat in the US and the global ramifications of President Trump’s attempts to undermine the role of the media as a public watchdog.

Challenges to multilateralism

On 19 June 2018, the United States of America (US) announced its departure from the HRC. The announcement was regrettable, particularly given that High Commissioner Zeid had called attention to the threat posed by an intensification of attacks on the multilateral system only days before.

The US is the only State ever to walk out on the UN’s principle human rights body since its establishment in 2006. Its departure left a key seat vacant in the run-up to crucial votes on human rights priorities, although our analysis shows that the US exit had negligible impact, and that States continue to push forward with progressive standards on freedom of expression regardless.

The withdrawal was premised on US Ambassador to the UN Nikki Haley’s failure to secure any progress on a three-point reform plan she had set out in Geneva a year earlier. While not opposed to the objectives of the reform in principle, ARTICLE 19 was among many groups questioning her strategy to push reforms through a UN General Assembly resolution. It risked consensus on the HRC’s fragile legal foundations, and could have opened them up to irreparable harm.

As the closest allies of the US had also declined to support this approach in New York for similar reasons, ARTICLE 19 was surprised that Haley chose to publicly chastise ARTICLE 19 and 17 other organisations for the US departure. All 18 organisations united in rebutting her claims, and restating our commitment to protecting human rights globally. Haley has since reiterated her attack on NGOs.

In the meantime, ARTICLE 19 was happy to welcome Iceland to the HRC as a new member, filling the seat left vacant by the US after a mid-July vote at the UN General Assembly.

Looking forward to HRC39

The 39th Session of the HRC will take place from 10 to 28 September 2018 in Geneva, and will be the first session following the appointment of Michelle Bachelet as the new High Commissioner for Human Rights.

New resolutions on the safety of journalists as well as on public participation will have important implications for freedom of expression, and ARTICLE 19 will seek to push action from the Council on attacks on freedom of expression in Cambodia, among other country situations of concern.

[1] An ARTICLE 19 side event explored these issues in detail. You can watch again here