HRC44: UN resolution on freedom of opinion and expression

HRC44: UN resolution on freedom of opinion and expression - Civic Space

ARTICLE 19 welcome the adoption of a resolution on “freedom of opinion and expression” at the UN Human Rights Council.1Please note that the final adopted version, with oral revisions, is available on the UN Human Rights Council Extranet. The resolution – led by Brazil, Canada, Fiji, Namibia, Netherlands and Sweden, and co-sponsored by over 50 countries from all regions – was adopted by consensus at the Council on 16 June 2020. This is a particularly welcome development given the long hiatus since the previous iteration of this resolution, with the last substantive text on this topic adopted over a decade ago in 2009.

The resolution reaffirms that the right to freedom of expression constitutes one of the essential foundations of democratic societies and development, and recognises that it is an important indicator of the level of protection of other human rights and freedoms. It moreover reaffirms that the same right to freedom of expression that people have offline must also be protected online. The resolution contains positive language on specific issues related to the right to freedom of expression, including on the right to information, internet shutdowns, responses to misinformation, counter-terrorism and violent extremism, encryption and anonymity tools, and safety of journalists.

While we welcome these developments, we express our regret with certain elements of the text which put undue focus on restrictions to the right to freedom of expression, ultimately detracting from the object and purpose of the resolution. At the same time, we are disappointed that the resolution missed the opportunity to address certain persistent and emerging challenges for the right to freedom of expression – such as criminal defamation laws, surveillance, and intermediary liability – particularly in light of language focused on restrictions.

While increased support to the right to freedom of expression at the international level is welcome, it must now be translated into political will at the national level to fully promote and protect the right in practice.

Right to information

We welcome that the resolution contains sound language on the right to information. It calls on States to “take all necessary efforts to ensure easy, prompt, effective and practical access to government information of public interest, including online, and encouraging the proactive disclosure of information held by public entities in the broadest possible terms, including on grave violations and abuses of human rights”. At the same time, it requests that the OHCHR prepare a report on good practices for establishing national normative frameworks that foster access to information held by public entities.

We have long asserted that the right of access to information held by public bodies is essential to the democratic functioning of societies and the well-being of each individual. It strengthens citizen participation, fosters development and economic performance, and makes national authorities accountable for their actions and management of public finances and public services. We note how a lack of access of information is largely due to an absence of freedom of information legislation and institutional secrecy.

We call on all States to implement these recommendations to their full extent – commitments on paper are not enough.

Internet shutdowns

The resolution “strongly condemns the use of internet shutdowns to intentionally and arbitrarily prevent or disrupt access to or dissemination of information online”, and calls on governments to refrain from such acts. This is one of the first resolutions – including another resolution on “human rights in the context of peaceful protests” adopted during the same session – to explicitly reference internet shutdowns.

Across the globe, governments are increasingly resorting to internet shutdowns to not only deny freedom of expression and access to information, but to facilitate and conceal other severe human rights violations, from mass arrests and killings of dissenting voices. This is particularly the case during politically sensitive moments, such as elections or protests.

We call on all States to champion the calls in the resolution and immediately put an end to internet shutdowns, as well as to increase scrutiny of this issue at the international level.

While we recognise the importance of the explicit reference to internet shutdowns, we are cautious of the qualifier “arbitrarily” in the resolution. We remind States that internet shutdowns are always a disproportionate and unnecessary infringement of the right to freedom of expression, and are never justified under human rights law.

As we look to the future, it is important that the resolution builds on this language and explicitly condemns other intentional disruptions to the internet, including the blocking of websites, telecommunication networks and mobile services, as well as efforts to disrupt net neutrality.

Responses to misinformation and “false news”

The resolution makes a very timely reference to the issue of misinformation. It stresses that responses to this issue “must be grounded in international human rights law, including the principles of lawfulness, legitimacy, necessity and proportionality”.

We are constantly seeing human rights defenders, journalists, academics, artists, and other civil society actors prosecuted and imprisoned under often broad and vague laws premised on combatting misinformation or so-called “false news”. The UN High Commissioner herself has raised alarm in a statement at the abuse of such measures to crackdown on free expression during the COVID-19 pandemic. Ultimately, these tools create a climate of fear which promotes self-censorship and impedes access to information.

We urge all States to repeal all disproportionate and vague prohibitions on “false news”, and to ensure that all measures taken in response to the COVID-19 pandemic meet the human rights standards of legality, necessity and proportionality.

Counter-terrorism and violent extremism

The resolution calls on States to “ensure that all measures taken to counter threats related to terrorism and violent extremism are in full compliance with international human rights obligations, including the principles of lawfulness, legitimacy, necessity and proportionality”. This follows a resolution on the “safety of journalists” adopted at the UN General Assembly last year which called on States to ensure these measures do not arbitrarily or unduly hinder the work of journalists.

Over recent years, States have increasingly used counter-terrorism and violent extremism measures not against terrorists, but human rights defenders, journalists, and other civil society actors. These measures share in common ambiguous definitions of “terrorism” and “extremism”, often disconnected from intent of the accused to cause violence, or the likelihood of it occurring, allowing authorities to broadly target groups and individuals engaged in dissent or political opposition. This trend has its roots in the international security narrative since 2001 that has pushed States to adopt strong counter-terrorism measures without equal attention to their human rights effects and for the role of human rights in addressing the underlying causes of terrorism. The lack of civil society engagement with the UN counter-terrorism and security architecture have at times contributed to this dynamic.

We urge all States to reform counter-terrorism and violent extremism laws to ensure they are precise and sufficiently narrow to not include members of civil society, and to immediately cease repression of legitimate expression under the guide of such laws. At the same time, the UN counter-terrorism and security architecture must take heed of the resolution and meaningfully include civil society in its work moving forwards.

Encryption and anonymity

The resolution crucially emphasises that “technical solutions to secure and protect the confidentiality of digital communications, including measures for encryption and anonymity, are important to ensure the right to freedom of expression”. This mirrors language in other resolutions, including a resolution on “privacy in the digital age” adopted at the UN Human Rights Council last year, further cementing international standards on this issue.

We have long been vocal about the vital importance of encryption and anonymity tools, which empower human rights defenders, journalists, academics, artists and other civil society actors to receive and share information without interference, particularly in hostile environments. These tools also provide a means of safe communication for groups or individuals who face persecution on account of their political opinion, religion or belief, sexual orientation or gender identity, and other protected grounds. However, attempts to weaken encryption and erode anonymity are stronger than ever.

We call on States to not only refrain from interferences with these tools, but to pass laws which recognise that individuals are free to protect the privacy of their digital communications through such technologies. In the future, it is also important that the resolution contains such recommendations in its operational paragraphs.

Internet intermediaries

The resolution encourages all business enterprises to meet their responsibility to respect all human rights, and to “ensure the greatest possible transparency in their policies, standards and actions that have an impact on the freedom of opinion and expression”.

This call is particularly relevant for social media platforms and other internet intermediaries. We are seeing freedom of expression and information increasingly playing out online, with much of the world’s online content regulated by the algorithms and community standards of a handful of these internet intermediaries, whose operations and processes lack transparency and often fail to meet human rights standards.

We call on social media platforms and other internet intermediaries to meaningfully implement the calls in the resolution, and to respect freedom of expression throughout all operations and processes.

While the resolution touches on the role of business enterprises, it falls short of explicitly mentioning social media platforms and other internet intermediaries, nor does it elaborate on the expectations of these actors. It is essential that future iterations of the text explicitly acknowledge that these companies should respect human rights. At the same time, it should grapple with the issue of intermediary liability and reiterate that these companies should not be liable for censoring or restricting third party content unless they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body.

Surveillance

The resolution makes a crucial omission by failing to address the ever pressing issue of mass or unlawful targeted surveillance.

The widespread abuse of surveillance technologies not only have significant chilling effects on freedom of expression, but have been shown to lead to severe human rights violations such as arbitrary detention, torture and even extrajudicial killings. The UN Special Rapporteur on freedom of opinion and expression, alarmed at poor controls on exports and transfers of surveillance technologies and the subsequent widespread abuse, has called for an immediate moratorium on their export, sale, transfer, use or servicing until a human rights-compliant safeguards regime for them is in place.

We urge the core group of future iterations of this resolution to not only include language on surveillance, but to truly champion the issue and take the lead in setting more progressive standards.

Restrictions to freedom of expression

While we welcome positive language in the resolution, we regret that there were last minute additions and oral revisions to the text which put brought in undue focus on the restrictions to the right to freedom of expression. While this language is predominantly based on the previous iteration of the resolution, and text contained in the ICCPR, it ultimately detracts from the very purpose of the resolution to promote and protect the right.

In certain instances, the language focused on restrictions is particularly problematic in the absence of corresponding positive language elaborating on the obligations on governments. As an example, the reference to the “reputations of others” as a ground of limiting the right to freedom of expression, while based on the ICCPR, risks being abused in light of the resolution failing to contend with the issue of criminal defamation, libel, or insult laws being used to silence legitimate forms of expression worldwide.

The resolution also raises concern at the issue of misinformation to “incite all forms of violence, hatred, discrimination and hostility, inter alia, racism, xenophobia, negative stereotyping and stigmatisation”. While we share concerns regarding hate speech, we remind States that broader concepts like “negative stereotyping” or “stigmatisation” do not necessarily reach the level of incitement. This language must not be abused to facilitate the further misuse of ambiguous laws on incitement to repress criticism and dissent of civil society actors.

In the future, it is paramount that the core group reformulates such language to ensure that the text fulfils its true purpose – to promote and protect the right to freedom of expression.