ARTICLE 19 has submitted its comments to the second UNESCO consultation on a ‘model regulatory framework for the digital content platforms to secure information as a public good’ (the Framework). Our submission sets out a number of serious concerns regarding UNESCO’s mandate to elaborate such Framework and the implication it could have on freedom of expression.
The Framework is being elaborated by UNESCO following the Windhoek+30 Declaration on Information as a Public Good. UNESCO will host a global conference in February 2023 that is intended to serve as a ‘forum for multi-stakeholder consultations of a model regulatory framework for platforms to secure information as a public good, while protecting freedom of expression and other human rights’. The current draft of the Framework is not publicly available, although it is ARTICLE 19’s understanding that a revised draft will be made publicly available ahead of the conference in February 2023.
It is widely recognised that major social media companies such as Meta, Google and Twitter have become fundamental to how people communicate and the type of information they access. ARTICLE 19 has long argued that access to accurate and reliable information, user literacy and platform transparency are essential elements to protect freedom of expression and has appreciated collaboration with the UNESCO in this respect. ARTICLE 19 also acknowledges that more efforts are needed in many jurisdictions to support these objectives and recognise the importance of fostering a global understanding regarding what a human-rights based approach to platform regulation should look like.
ARTICLE 19 does, however, have to raise serious concerns in relation to the Framework, its recommendations and overall scope. Although UNESCO’s efforts in this area may be driven by good intentions, we have significant reservations regarding the way in which the Framework is conceived as well as its scope. We therefore urge UNESCO to pause its work on the Framework and to address the serious concerns outlined in this submission.
In our comments, we outline a number of key issues with the proposed Framework, which include the following:
- The potentially far-reaching impact of the Framework means that its legitimacy is essential and that UNESCO requires a strong mandate to develop it. ARTICLE 19 believes that the elaboration of a model regulatory framework requires a decision by the General Conference in line with UNESCO’s rules of procedure. Given the centrality of human rights to any framework regulating social media platforms, we further argue that UNESCO should cooperate with the Office of the United Nations High Commissioner for Human Rights (OHCHR) in any efforts to establish a global framework of the sort envisaged under the Framework. ARTICLE 19 is also concerned about the lack of transparency as to the evidence and reasoning that have resulted in this Framework. ARTICLE 19 believes that the elaboration of a framework of the kind envisaged by UNESCO requires extensive empirical analysis, as well as a public and transparent consultation process, allowing for participation of a wide variety of representative stakeholders.
- Beyond these structural issues, ARTICLE 19 believes that many of the proposals in the Framework are deeply problematic from a freedom of expression perspective. ARTICLE 19 is worried that if launched in its current form, the Framework could be used by a number of States to justify repressive internet regulations with reference to a UNESCO framework.
- The Framework lacks clarity: The Framework in its current form is too broad and superficial and, thus, may result in unintended consequences that could be dangerous for freedom of expression and the right to information.
- The Framework fails to adopt a human-rights based approach: While ARTICLE 19 appreciates and supports UNESCO’s objective to secure information as a public good, we believe that it should not serve as the main concept underpinning any regulation in this area. Instead, we have urged States and regional organisations to adopt a human-rights based approach to platform regulation. We are concerned that the Framework’s focus on protecting accurate and reliable information has led to the categorisation of speech and information as ‘desirable’ and ‘undesirable’ or ‘harmful’ throughout the Framework. Should the Framework be adopted, it may lead to regulation that will leave it either up to governments around the globe or private companies to decide which type of information or expression they consider to be desirable or harmful.
- The Framework explains that it explicitly does not deal with data privacy, competition, and intellectual property as they require different approaches and different legal or regulatory framework and because ‘attempts to produce legislation dealing with all internet issues inevitably risk being too ambitious or becoming over complicated, which impacts on public understanding’. We note that any regulation of platforms that does not take into account competition and data protection aspects will prove ineffective in limiting the harmful effects of these platforms’ business models.
ARTICLE 19 believes that considering the approach by the European Union in the Digital Services Act (DSA) and the Digital Markets Act (DMA) when it comes to regulating digital platforms would be a good starting point for any global framework. While the DSA and DMA could have been more ambitious in many ways, we do welcome many aspects, for example that – unlike the Framework – it does not seek to prescribe what type of content platforms should restrict, but instead focuses on processes, transparency, and on procedural rights for users.
ARTICLE 19 acknowledges that the new EU regulations (DSA and the DMA) form part of a very complex and specific regulatory environment, so many of its provisions are not transferrable into a modal framework that intends to apply across jurisdictions. At the same time, we believe that certain aspects of the DSA and the DMA, such as the procedural rights for users or the requirements regarding transparency, due diligence or interoperability could well be applied globally. We do therefore recommend that any elaboration of a global framework build on the achievements made in the DSA and the DMA but be more ambitious in protecting human rights online.
ARTICLE 19 stands ready to assist UNESCO in addressing these concerns and to engage further with UNESCO on developing human-rights based strategies to further our common goal to protect freedom of expression and the right to information in the digital space.