Human rights, the Internet and its governance
Drawing particular attention to economic and social rights and, in the light of the recent revelations of mass surveillance, the right to privacy, Richard Hill highlights some neglected dimensions of human rights on the Internet.
HUMAN rights on the Internet are threatened not just by government actions such as censorship and mass surveillance, but also by government inactions that allow private companies to abuse their dominant position.
Everybody knows that governments impose limits on what is considered acceptable Internet content, some more than others. But few understand the full extent to which private companies assert ownership over the information that they receive from Internet users, monetise that information to reap large profits, and take steps to lock users in so that they are discouraged from changing suppliers. Those actions threaten human rights as surely as do the actions of governments.
Human rights and the Internet
It is axiomatic that the rights that people enjoy offline also apply online, and conversely that the duties that people have offline also apply online. This has been confirmed by a long series of court decisions and laws dating back to telegraphy and has recently been explicitly affirmed in United Nations resolutions and other forums. It is also not disputed that states are responsible for ensuring that rights and duties are respected.
Developed countries have tended to stress freedom of expression as a right to be protected. More recently, the right to privacy has come to the fore, in light of revelations regarding mass surveillance. Further, the right to influence public policy decisions has also been raised as an issue, as has the right to development, which may involve controlling dominant private companies.
Freedom of speech
Much of the focus of discussions on Internet governance has been on freedom of expression. Despite idealists who take the view that the Internet cannot (or should not) be censored, the fact is that all states exercise some level of control of content, for example to prevent dissemination of paedophilia, sale of illegal substances or goods, violation of copyright, defamation, etc. Such controls are not controversial. What is controversial is control of hate speech and political speech, since the extent and intensity of such controls varies greatly by country, with the US exercising the least control and China probably the most (but it should be noted that hate speech and negation of genocides are not allowed in most European countries, that some European countries restrict access to online adult entertainment, and that the US does not allow access to online gambling sites).
Such restrictions are permissible only if they comply with Article 19.2 of the International Covenant on Civil and Political Rights (ICCPR), but the allowed restrictions are fairly broad. Proponents of free speech should consider changing that article so that fewer restrictions are allowed; however, it might be very difficult to renegotiate the ICCPR. As an alternative, it may be easier to negotiate a revision to a treaty that specifically deals with telecommunications (the ITU Constitution), with the idea of enshrining the principle that online freedom of speech should be broader than offline freedom of speech. [The International Telecommunication Union (ITU) is the specialised UN agency dealing with international telecommunication issues, including radio frequency harmonisation, standardisation, and development issues.]
The ICCPR also provides for the right to privacy. The importance of this right has come to the fore following recent revelations of mass surveillance. As Dilma Rousseff, President of Brazil, stated in her 24 September 2013 speech at the UN: 'In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy.'
That is, the right to privacy is an essential enabler of the right to freedom of expression: how can one develop opinions if one cannot discuss ideas privately without fear of being overheard and punished? And of course these days it must be possible to conduct such private discussions via email, social networks on the Internet, etc.
Thus there is growing recognition (albeit not yet sufficient in developed countries) that mass surveillance is a grave violation of fundamental human rights and must be ended. Surveillance can be legitimate, but only if it is necessary and proportionate, which is not the case with the current mass surveillance programmes practised by several developed countries.
The existing provision on the secrecy of telecommunications of the ITU Constitution, which dates back to telegraphy, could be revised to make it clear that mass surveillance is a violation of human rights.
Art. 25 of the ICCPR provides that everyone has the right to take part in the conduct of public affairs, directly or through freely chosen representatives. That is, everyone has the right to take part, directly or through freely chosen representatives, in public policy decisions, where 'public policy decisions' refers to decisions that affect public affairs. This human right of course also applies to public policy decisions regarding the Internet, by virtue of the principle that offline rights apply equally online.
Thus the principle that people, either directly or through their chosen representatives, have the right to make public policy decisions also applies to public policy decisions regarding the Internet. This principle is correctly embodied in paragraph 35(a) of the Tunis Agenda adopted by the World Summit on the Information Society, which states that policy authority for Internet-related public policy issues is the sovereign right of states.
Various calls for non-government entities to participate on an equal footing with governments in decision-making regarding public policy matters are thus inconsistent with fundamental human rights, because such non-government entities may not be democratic and would likely weaken the right of people to take part in the conduct of public affairs through their chosen representatives.
In particular, private companies are not democratic institutions and thus should not have equal rights in decisions affecting the public interest: indeed, how could net neutrality ever be implemented if private companies can exercise veto power?
Yet many decisions regarding Internet public policy matters at the international level are made at present in forums dominated by private companies, with the result that the public interest is not always well represented. This is due to the fact that developed countries have resisted involving UN agencies in some aspects of Internet governance when they thought it might threaten the economic interests of their companies or their own geo-political interests. But it must be noted that developed countries have favoured the involvement of UN agencies when they thought it might further their interests, for example with respect to copyright.
This situation should be rectified: all issues should be treated equally and should be subject to the same democratic governance mechanisms, mechanisms which should ensure that private companies do not use governance mechanisms to further their commercial interests.
While they are not often mentioned by proponents of human rights, it is important to stress that those rights include 'the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services'.
Those economic rights cannot be fully realised in today's world unless all people have equal influence in the development and use of the Internet. In particular, those economic rights cannot be realised if a few US-based private companies are allowed to continue to reap large profits, and pay little tax, by exploiting their dominant positions regarding software, search engines, social networks, instant messaging, etc. And this in particular when the large profits come from selling targeted advertising whose value is derived by analysing information provided by users, and when the so-called 'free' services provided in order to obtain that information cost much less than the value derived from the information. This amounts to obtaning a valuable product at a low price by failing to inform the seller that the product is in fact valuable.
Other human rights
There are many other human rights that are important in the context of the Internet, such as the right to education, gender equality, etc. As stated in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in Vienna on 25 June 1993: 'All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis' (emphasis added).
The same concept is embodied in United Nations General Assembly Resolution A/RES/68/176, 'Strengthening United Nations action in the field of human rights through the promotion of international cooperation and the importance of non-selectivity, impartiality and objectivity'.
Developed countries should keep in mind that freedom of speech is not the only right that must be protected on the Internet, and developing countries should continue to stress that all human rights must be recognised and protected on the Internet, including the right to ensure that dominant private companies do not abuse their position to the detriment of citizens.
Richard Hill is an independent consultant, author and activist based in Geneva, Switzerland. He was formerly a senior official at the International Telecommunication Union (ITU) and worked extensively in the information and communications technology sector before that. This article is derived from a module prepared for a University of Geneva Faculty of Law summer course on Internet law.
*Third World Resurgence No. 287/288, July/August 2014, pp 40-41